that Grand Juries have both a larger field for their Inquiry and are in many respects better capacitated to make a strict one than the Petit Juries These last are confined as to the Person and the Crime specified in the Indictment But They are at large obliged to search into the whole matter that any ways concerns every case before them and all the Offences contained in it all the Criminal Circumstances whatsoever and into every Thing howsoever concerning the same They are bound to inquire whether their Information of Suspected Treasons or Felonies brought by Accusers be made by Conspiracy or Subornation Who are the Conspirators or false Witnesses By whom abetted or maintained Against whom and how many the Conspiracy is layed When and how and in what course it was to have been prosecuted But none of these most intricate matters which need the most strict and diligent Inquiries can come under the Cognisance of the Petit Jury They can only examine so much as relates to the Credit of those Witnesses brought to prove the Charge against the Parties Indicted Wherein also they have neither Power nor convenient time to send for persons or Papers if they think them needful Nor to resolve any doubts of the Lawfulness and Credibility of the Testimonies Yet further if the Crimes objected are manifest 't is then the Grand Juries duty to inquire after all the Persons any ways concerned in them and the several Kinds of Offences whereof every one ought joyntly or separately to be indicted as they shall discover them to have been Principals or Accessories Parties or privy thereunto or to have comforted or Knowingly relieved either the Traitors or Felons or conceal'd the offences of others But the Inquisition into all these matters which require all possible strictness in searching as being of the highest importance unto the publick Justice and safety is wholly out of the Power Trust of the Petit Juries The guilt or Innocence of the Parties put upon their Tryals the Evidence thereof given is the only Objects of their Inquiries It is not their work nor within their trust to search into all the guilt or Crimes of the Parties whom they try They are bound to move within the Circle of the Indictment made by the Grand Jury who are to appoint and specify the offences for which the Accused shall be tried by the Petit Jury When a Prosecutor suggests that any Man is criminal and ought to be indicted it belongs to the Grand Jury to hear all the proof he can offer to use all other means they can whereby they may come to understand the Truth of the suggestion every thing or circumstance that may concern it Then they are carefully to examine the nature of the Facts according unto the Rules of the Com. Law or the express words of the Statutes whereby offences are distinguished and punishments allotted unto each of them T is true that upon heating the Party or his Witnesses the Petit Jury may acquit or judge the Facts in the Indictment to be less heinous or malitious then they were presented by the Grand Jury but cannot aggravate them which being considered it will Easily appear by the intent and Nature of the Powers given unto Grand Juries that they are by their Oaths obliged and their institution ordained to keep all injustice from entring the first gates of our Courts of Judicature and to secure the innocent not only from punishment but from all disgrace vexation Expence or danger To understand our Law clearly herein the Jurors must first know the lawful grounds whereupon they may and ought to indict and then what truly and justly ought to be taken for the ground of an Indictment The principal and most certain is the Jurors personal knowledge by their own Eyes or Ears of the Crimes whereof they indict Or so many pregnant concurring Circumstances as fully convince them of the guilt of the Accused When these are wanting the Depositions of Witnesses and their Authority are their best guides in finding Indictments When such Testimonies make the charge manifest and clear to the Jury they are called Evidence because they make the guilt of the Criminal evident and are like the Light that discovers what was not seen before All Witnesses for that reason are usually called the Evidence taking their name from what they ought to be Yet Witnesses may swear directly and positively to an Accusation and be no Evidence of its truth to the Jury sometimes such Remarks may be made upon the Witnesses as well in relation to their Reputation and Lives as to the Matter Manner and Circumstance of their Depositions that from thence the falshood may appear or be strongly suspected It is therefore necessary to know what they mean by a probable Cause or Evidence who say that our Law requires no more for an Indictment Probable is a Logical Term relating to such propositions as have an appearance but no certainty of Truth shewing rather what is not than what is the matter of Syllogisms These may be allowed in Rhetorick which worketh upon passions and makes use of such Colors as are fit to move them whether true or false but not in Logick whose Object is Truth as it principally intends to obviate the Errours that may arise from the credit given unto appearances by distinguishing the uncertain from the certain verisimile à vero it cannot admit of such Propositions as may be false as well as true it being as impossible to draw a certain conclusion from uncertain premises as to raise a solid Building upon a tottering or sinking Foundation This ought principally to be considered in Courts of Justice which are not erected to bring men into condemnation but to find who deserves to be condemned and those Rules are to be followed by them which are least liable to deception For this Reason the Council of the Areopagites and some others of the best Judicatures that have been in the World utterly rejected the use of Rhetorick looking upon the Art of persuading by uncertain probabilities as little differing from that of deceiving directly contrary to their ends who by the knowledge of truth desired to be led into the doing of Justice But if the Art that made use of their probabilities was banisht from uncorrupted Tribunals as a hindrance unto the discovery of Truth they that would ground Verdicts totally upon them declare an open neglect of it and as it is said that uno absurdo dato mille sequuntur if Juries were to be guided by probabilities the next question would be concerning the more or less probable or what degree of probability is required to persuade them to find a Bill This being impossible to fix the whole Proceedings would be brought to depend upon the Fancies of Men and as nothing is so slight but it may move them there is no security that innocent Persons may not be brought every day into danger and trouble By this means certain
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
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
dare not rely upon Him in His Kingly Office and trust for safety and Protection by the Laws Our English History affords many Instances of those that have pretended to serve our King in this manner by undermining the Peoples Right and Liberties whose practices have sometimes proved of fatal consequence to the Kings themselves but more frequently ended in their own destruction But after all imagining it could be made out that this Method of private Examinations by a Grand Jury which from what has been said before hath appeared to be so Extremely necessary for the publick good and to every private mans security were inconvenient or Mischievous and therefore fit to be changed Yet being so Essential a part of the Common Law it is no otherwise alterable than by Parliament We find by Presidents that the bare forms of Indictments could not be reformed by the Judges The words Depopulatores agrorum Insidiatores viarum Viet Armis Baculis Cultellis Arcubus sagittis could not be left out but by Advice of the Kingdom in Parliament A writ issued in the Time of K. Ed. 3. giving Power to hear and determine Offences and all the Justices resolved Cok. 4. Inst Pag. 164. That they could not lawfully act having their Authority by Writ where they ought to have had it by Commission Tho it was in the form and words that the Legal Commission ought to be John Knivett Chief Justice by Advice of all the Judges resolved that the said Writ was Contra Legem And where divers Indictments were before them found against T. S. the same all that was done by colour of that Writ was Damned If in such seeming little Things as these and many others that may be instanced the Wisdom of the Nation hath not thought fit to intrust the Judges but reserved the Consideration of them to the Legislative Power It cannot be imagined that they should subject to the discretion and pleasure of the Judges those important Points in the Established course of the administring Justice whereupon depends the safety of all the Subjects Lives and fortunes If Judges will take upon themselves to alter the constant practice they must either alter the Oath of the Grand Jury or continue it If they should alter it so as to make it sail with any such new Method and thus in appearance charitably provide that the Grand Jury should not take a mock Oath or forswear themselves they then make an Incroachment upon the Authority of Parliaments who only can make new or change old Legal Oaths and all the proceedings thereupon would be void If they should continue constantly to impose the same Oath as well when they have notice from the King that the Jury shall not be bound to keep his Secrets and their own as when they have none They must assume to make the same form of Law to be of force and no force and the same words to bind the Conscience as they will have them Whereby they would prophane the Natural Religion of an Oath and bring a foul Scandal upon Christianity by trifling worse than Heathens in that sacred matter And whilst the Judges find themselves under the necessity of administring the Oath unto Grand Juries and not suffer them to observe it according unto their consciences they would confess the illegality of their own Proceedings and can never be able to repair the Breaches by pretending a tacite Implication if the King will but must unavoidably fall under that approved Maxim of our Law Maledicta est Interpretatio quae corrumpit Textum It is a Cursed Interpretation that dissolves the Text. There are Two Vulgar Errours concerning the duty of Grand Juries which if not removed will in Time destroy all the benefit we can expect from that Constitution by turning them into a meer matter of form which were designed for so great Ends. Many have of late thought and affirmed it for Law that the Grand Jury is neither to make so strict Inquiry into matters before them Nor to look for so clear Evidence of the Crime as the Petit Jury but that of their Presentments being to pass a second Examination they ought to indict upon a Superficial Inquiry and bare Probabilities Whereas should either of these Opinions be admitted the Prejudice to the subject would be equal to the total laying aside Grand Juries There being in Truth no difference between arraigning without any Presentment from them at all and their Presenting upon slight grounds For the first that Grand Juries ought not to make so Strict Inquiry it were to be wisht that we might know how it comes to pass that an Oath should be obligatory unto a Petit Jury and not unto the Grand Or in what Points they may lawfully and with good Conscience omit that Exactness whether in Relation to the Witnesses and their credibility Or the fact and all its circumstances Or the Testimony and its weight Or lastly in Reference to the Prisoner and Probability of his guilt And withal upon what grounds of Law or Reason their Opinion is founded On the contrary he that will consider either the Oath they take or the Commission where their duty is described will find in all Points that there lies an Equal obligation upon them and the Petit Juries They swear diligently to inquire and true Presentment make c. and to Present the Truth the whole Truth and Nothing but the Truth c. And in the Commission of Oyer Terminer their duty with that of the Commissioners is thus described Ad Inquirendum per Sacramentum Proborum legalium hominum c. per quos rei veritas melius sciri poterit de quibuscunque proditionibus c. confoederationibus Falsis allegantiis nec non Accessoriis Eorundem c. per quoscunque qualitercunque habit fact perpetrat sive Commiss Et per quos Et per quem cui vel quibus quando qualiter vel quomodo de aliis articulis Circumstantiis praemis eorum aliquod vel aliqua qualitercunque concernen To inquire by the Oath of honest and lawful Men c. By whom the Truth of the matter may be best known of all manner of Treasons c. Confederacies false Testimonies c. As also the Accessories c. by whomsoever or howsoever done perpetrated or committed by whom or to whom how in what way or in what manner And of other Articles and Circumstances premised and of any other Thing or Things howsoever concerning the same Now for any Man after this to maintain that Grand Juries are not to inquire or not carefully is as much as in plain terms to say they are bound to act contrary to the Commission and their Oath And to affirm that they can discharge their duty according to the obligations of Law and Conscience which they lie under without a strict Inquiry into Particulars is to affirm that the End can be obtained without the means necessary unto it The Truth is
of a man It must also be certainly evident that all the matters which they depose are consistent with each other and accompanied with such circumstances as in their Judgment render it credible All just Indictments must be built upon these moral assurances which the wisdom of all Nations hath devised as the best and only way of deciding Controversies Neither can a Grand Jury man who swears to present nothing but the Truth be satisfied with less 'T is scarce credible that any learned in our Laws should tell a Grand Jury that a far less Evidence will warrant their Indictment being but an Accusation than the Petit Jury ought to have for their Verdict Both of them do in like manner plainly and positively affirm upon their Oaths the Truth of the Accusation Their Verdicts are indeed one and the same in substance and sense tho not in words There is no real difference between affirming in Writing that an Indictment of Treason is true as is the practice of Grand Juries and saying that the party tried thereupon is guilty of the Treason whereof he is indicted as is the course of Petit Juries They are both upon their Oaths They are equally obligatory into both The one therefore must expect the same proof for their satisfaction as the other and as clear Evidence must be required for an Indictment as for a Verdict It is unreasonable to think that a slighter proof should satisfie the Consciences of the greater Jury than is requisite to convince the less And uncharitable to imagin that those should not be as sensible as the others of the Sacred security they have given by Oath to do nothing in their Offices but according to truth If there ought to be any difference in the Proceedings of the Grand and Petit Juries the greater exactness and diligence seems to be required in the Grand For as the same work of finding out the truth in order to the doing of Justice is allotted unto both the greatest part of the burthen ought to lye upon them that have the best opportunities of performing it The invalidity weakness or defects of the Proofs may be Equally Evident to either of them But if there be deceit in stifling true Testimonies or malice in suborning wicked Persons to bring in such as are false the Grand Jury may most easily nay probably can only discover it They are not straitned in time They may freely examine in private without interruption from the Council or Court such Witnesses as are presented unto them or they shall think fit to call they may jointly or severally enquire of their Friends or Acquaintance after the Lives and Reputations of the Witnesses or the accused Persons and all circumstances relating unto the matter in question and consult together under the Seal of Secrecy On the other side the Petty Jury being charged with the Prisoner acts in open Court under the Awe of the Judges is Subject to be disturb'd or interrupted by Council Deprived of all opportunity of Consulting one another until the Evidence be summ'd up and not suffered to eat or drink until they bring in a Verdict so is it almost impossible for them thus limited to discover such evil practices as may be used for or against the Prisoner by Subornation or Perjury to pervert Justice if therefore the Grand Jury be not permitted to perform this part of their duty it is hard to imagine how it should be done at all And it is much more inconceivable how they can satisfie their Consciences if they so neglect as to find a Bill upon an imperfect Evidence in the absence of the Prisoner in Expectation that it will be supplied at the Bar It concerns them therefore to remember that if they proceed upon such uncertainties they will certainly give incurable Wounds into their Neighbours Reputations in order unto the destruction of their Persons Whatever ground this Doctrine of Indicting upon slight proofs may have got in our days it is as we have seen both against Law and Reason and contrary to the practice of former times My Lord Coke in his Comment on Westm 2d tells us That in those days and as yet it ought to be Indictments taken in the Absence of the Party were formed upon plain and direct Proofs and not upon Probabilities and Inferences Herein we see that the practice of our Fore-Fathers and the opinion of this great and judicious Lawyer were directly against this new Doctrine and some that have carefully looked backward observed that there are very few Examples of men acquitted by Petit Juries because Grand Juries of old were so wary in canvasing every thing narrowly and so sensible of their Duty in proceeding according unto truth upon Satisfactory Evidence that few or none were brought unto Trial till their Guilt seemed evident It is therefore a great mistake to think that the second Juries were instituted for the hearing of fuller proofs That was not their work but to give an opportunity to the accused persons to answer for themselves and make their defence which cannot be thought to strengthen the Evidence unless they be supposed to play booty against their own Lives By way of answer the Prisoner may avoid the charge He is permitted to take Exceptions he may demur or plead to the Indictments in points of Law Herein the Judges ought to assist him and appoint Counsel if he desire it He may shew that the Indictors i. e. the Grand Jury or some of them are not lawful men or not lawfully returned by the Sheriffs embracery or practice may be proved in the packing of the Jury A Conspiracy or Subornation may be discovered Falshood may be found out in the Witnesses by questions about some circumstances that none could have asked or imagined except the Party accused And besides doing right to the Indicted in these and many other things 't is the Peoples due to have all the Evidence first taken in private to be afterwards made publick at the Trial that the Kingdom may be satisfied in the equal administration of Justice and that the Judgments against Criminals may be of greater Terrour and more useful to preserve the common peace If any object that this Doctrine would introduce double Trials for every offence and all the delays that accompany them it may be answered That Nulla unquam de morte hominis cunctatio Longa est Ju. Sat. No delay is to be esteemed Long when the life of a man is in question The punishment of an offendor that is a little deferred may be compensated by its severity but blood rashly spilt cannot be gathered up and a Land polluted by it is hardly cleansed Wise and good men in matters of this nature have ever proceeded with extream caution whilest the swift of foot are in the Scripture represented under an ill Character and have been often found in their haste to draw more guilt upon themselves than what they pretended to chastize in others To avoid this mischief in
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
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
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