the Indictment whereby to bring the Party and his Offence of Blood to a full Trial by a second Jury which otherwise can never be done neither the Law therein known from the Court in such a Case Besides many other Inconveniences and doubts may arise where the Grand Jury find the Bill of Indictment only Manslaughter which by finding of it Murther would be prevented as in challenging upon his tryal above the number of twenty Jurors the Statute of the 22 H. 8. c. 14. reduceth peremptory challenge upon an Indictment or Appeal which at the Common Law was allowed to the Prisoner to challenge thirty five Jurors which is under the number of three Jurors this Statute so provides That a Prisoner shall not now in Petit Treason Murther and Felony challenge above twenty Jurors without shewing cause And in case of Treason and misprision of high Treason it was taken away by the Statute of 33 H. 8. but now by the Statute of 1 2 Phil. Mar. the Common Law is revived for any Treason the Prisoner shall have his challenge to the number of 35 and so it was resolved by all the Justices upon conference between them in the Case of Sir Walter Rawleigh and Geo. Brooks By this Statute it is plain that if one be Indicted or Appealed for Murther and challenge above the number of twenty Jurors peremptorily without shewing cause it shall be a Conviction of the offence and Capital but it is a great quaere whether he that is Indicted or Appealed only for Manslaughter which is not named in this Act nor can be rationally comprehended in the word Felony more than Murther might have been may not challenge thirty five Jurors as at Common Law so it may be a quaere where the Prisoner Indicted only of Manslaughter shall stand mute or will not answer directly to the Indictment whether notwithstanding he shall not have his Clergy for the Statute of the 1 of Ed. 6. c. 12. and other Statutes that take away Clergy from such offences and Offenders as are therein mentioned take it away as well from such as stand mute answer indirectly or challenge peremptorily above the number of twenty as from those that are convicted by Verdict or Confession upon their Arraignment otherwise such as stand Mute answer indirectly or challenge peremptorily might have had their Clergy as the Act seems to imply otherwise it had not taken Clergy away in those cases The Judgment of Paine for t dure that is Pain grievous and durable was not at the Common Law but ordained by the Statute of West 1. made Anno 3 Ed. 1. whereby it was enacted That notorious Felons openly known of evil name who will not put themselves upon Enquests of Felonies which men do prosecute at the Kings suit shall be put in hard and strong Prison as they which refuse to be tried by the Law of the Realm but this is not to be intended of Prisoners which be taken of light Suspicion By which Statute it doth appear that none shall be judged to this pain if there be not evident or probable matter to convince him of the offence whereof he is arraigned or otherwise that he is a notable Thief or openly known to be of Evil name which the Judge ought strictly to examine before he proceed to this Judgment against him it would be very hard which the Law is never in favorem vitae to extend this Statute to Manslaughter which may be suddenly committed by one of good name and fame and not a notorious Thief as this Act mentions and yet may have an obstinate humor to refuse Trial challenge peremptorily and make indirect Pleas. It is the severest Judgment that I know the Law passes upon any Offender and therefore not to be extended further than the plain understanding of the words of the Act a Sentence so severe that I think never English man as yet though many have been Prest to death had the heart to execute it according to the letter which Sentence is as followeth That the Prisoner shall be sent to the Prison from whence he came and put into a Mean house stopped from light and there shall be laid upon the bare ground without any Litter Straw or other covering and without any Garment about him saving something to cover his Privy members and that he shall lie upon his back and his head shall be covered and his feet bare and that one of his Arms shall be drawn with a Cord to one side of the house and the other Arm to the other side and that his Legs shall be used in the same manner and that upon his Body shall be laid so much Iron and Stone as he can bear and more and that the first day after he shall have three morsels of Barley-bread without any Drink and the second day he shall drink so much as he can three times of the Water which is next the Prison-door saving Running-water without any Bread and this shall be his Diet until he die Another inconvenience may arise where the party Indicted and Arraigned only of Manslaughter shall plead a Forrein plea of something done in another County to the delay of Justice the Statute of the 22 H. 8. c. 14. only providing in cases of Petit Treason Murther or Felony that Forrein pleas in those Cases shall be tried before the same Justices before whom such persons shall be Arraigned and by the same Jurors of the same County that shall trie the petit Treason Murther or Felony If a man be Indicted of Treason he may plead a Forrein plea which shall be tried in another County otherwise in cases of Murther Petit Treason and Felony Another inconvenience may be upon the Statute of the 6 H. 8. c. 6. By that Statute the Justices of the Kings Bench are impower'd to remit the bodies of Felons and Murtherers removed thither to be tried in the County and their Indictments removed into that Court which before they could not do by the Common Law because a Record that is once brought into the highest Court could not be remanded to an Inferior Stamf. fol. 157. this Statute only provides in case of Felony and Murther not Manslaughter The last Inconvenience I shall mention though I could many more by reason of Indictments of Manslaughter will be in Cities and Burroughs and Corporations that have power to try Murthers and Felonies the Statute of the 23 H. 8. c. 13. provides That in Trials of Murthers and Felonies there proceedings shall not stay as formerly or be delaied by reason of challenge of such Offenders for lack of sufficiency of Freehold to the great hindrance of Justice but that if the Jurors be worth in Monies and personal Estate Forty pounds they shall not be challenged but admitted It will be a very extorted construction that upon this Statute and the others before shall bring in Manslaughters under the word Felonies whatever
practice is or hath been used to the contrary I conceive it fit to be better considered for it is not sufficient in all Cases much less in this without or against a Rule and Act of Parliament to justifie practice by practice this happily in the end might prove a Common Thief to be an honest man Besides observe the penning of other Statutes and that will give a clearer light to the understanding of these by the Statute made in the 27 of H. 8. c. 25. it was enacted That no person or persons of what estate or degree soever shall have power or authority to pardon or remit any Treasons Murthers Manslaughters or Felonies whatsoever they be c. Here you see the Makers of this Law mention the word and offence of Manslaughter in terminis and not leave it to be understood or to be comprehended in the word other Felonies though it is most comprehensively said or Felonies whatsoever they be So the Statute made in the first and second Ph. Mar. c. 13. That the Justices of the Peace one being of the Quorum when any Prisoner is brought before them for any Manslaughter or Felony before any Bailment or Mainprise shall take the examination of the Prisoner and Information of the Accuser and certifie it at the next Goal-delivery c. Here you see Manslaughter and Felony both exprest as necessary several times in the Act. So the Statute of the 23 H. 8. c. 12. that directs the manner of punishing of offences in the Kings Palace or House says All Treasons Misprisions of Treasons Murthers Manslaughters and other malicious Strikings c. and so divers other Acts of Parliament as might be shewed that make or intend any provision against Manslaughters do particularly name the word Manslaughter and never leave it to be intended or included in the word Felony It is true that by a Commission granted to certain persons to enquire of all Felonies they may thereby take Indictments of Murther though a Pardon of all Felonies will not avail him who hath committed Murther in regard of the Statute made 13 R. 2. 1. And the Commission of Oyer and Terminer made to the Judges every Assizes that enables them to enquire of all Offences hath these express words in it And of whatsoever Murthers Felonies Manslaughters Killings not leaving Manslaughters to be intended by the general words of Felonies or Killings Many more Inconveniences might be shewed but these with what hath been before shewed may be sufficient until better reasons appear to satisfie any understanding Grand Juror to esteem it much the better way to find such Bills Murther rather than Manslaughter there being every way less inconvenience in it in relation to the Laws of the Land until by the wisdom of a Parliament they are altered and much more of satisfaction and safety to their own private Consciences that stand so deeply engaged to discover Blood-guilty persons and to suppress and silence the cries of Innocent blood that by our Laws in the first place cries to Grand Jurors for Vengeance against the Murtherer and Manslayer It now remains that two Objections be answered that happily to such as do not well weigh and consider them may seem to be of some force against what hath been herein said to the contrary the one is The general liberty and constant practice Grand Jurors have taken ever since the making of the said Statute of the 23 H. 8. c. 1. to find as they please either Murther or Manslaughter not as the Indictment comes to their hands from the Kings Council but as they apprehend the Evidence that is brought to them taking upon themselves not only the sole Judgment of the Fact and what the Law is that ariseth upon the said Fact taking the Judgment of the Law therein from the Court although they hear but one side and putting in and putting out what they please in such Indictments notwithstanding it appears to them the party Indicted is guilty of shedding Innocent blood varying the species of Murther and Manslaughter as they please until after Arraignment of the Prisoner it be too late to amend it as I have often known The other Objection is and this seems to be of some weight and authority in Law against what hath been said That Mr. Justice Stamford in his book of The Pleas of the Crown is of another opinion viz. That a Grand Jury may find the Special matter in the Indictment that is to say that the Prisoner killed the other se defendendo or per Infortunium c. which the party upon his Arraignment may either confess or estrange himself from the fact and plead Not guilty To the first Objection as to the liberty and practice of Grand Jurors to the contrary so long used I Answer It hath been before in this Treatise sufficiently made out the great Inconvenience and mischief in Cases of Blood that is the consequence of such practice and that being granted as it cannot be denied I suppose no wise man will think that the long practice of such an Errour will justifie it or encourage the longer continuance of it in the highest Courts of Law and Justice and in so high and tender an Offence as the disquisition of Blood is although in Inferiour County Courts where many times are ignorant Judges and mean Clerks and in ordinary Offences this Maxime may hold good that Communis Error facit Jus that the common practice of an Error makes it the Law of the Court and not convenient to be altered yet I have never observed that Maxime to take place in the highest Courts of Justice in this Kingdom before the Judges of the Courts at Westminster Justices of Oyer and Terminer Justices of Goal-delivery and Justices of Assize who sit not to practice but to correct and destroy Errors of all kinds especially in Trials of mens Lives in Cases of Blood and whoever shall urge that Maxime against what I have here said doth by that sufficiently grant what I have here endeavoured to prove viz. the errour and inconvenience of such practice which ought no more to be continued than a long custome when it is found to be unreasonable but I shall never allow neither can it be proved that there hath been in this Kingdom such liberty and practice allowed and indulged by the Reverend and Learned Judges to Grand Jurors to find and alter Indictments brought unto them in cases of Blood as they themselves please and judge convenient they being as hath been said before not the Judges nor the Triers but Presenters of a fact of Blood fit for the Judgment of the Jury of Life and Death who only are the proper Judges of the Fact for none can be said to be proper Judges of any Fact in Controversie that hear but one side for Grand Jurors hear no more and therefore ought in Law Reason and Conscience where they find a guilty person that hath had his hands in Blood
and unjustly taken away the Life of another person to leave it as an entire fact of Murther to the Trial and Verdict of the second Jury to find the truth of the Fact upon hearing of both sides and receiving the Judgment of the Court in what species or degree of Murther it is which likewise if any doubt or point of Law arise in the Case as many times it doth they may find it specially which a Grand Jury cannot and thereupon receive the opinion of all the Judges of England Murther being the Genus of the several Species and in common acceptation he is accounted a Murtherer that kills any man or reasonable Creature unlawfully and the Commandment is Thou shalt do no Murther which certainly comprehends all unlawful killing otherwise that command is not well translated from the Text Non Occides Thou shalt not Kill and in my own experience for above forty and five years in one Circuit I have very often known many Learned Judges such as Mr. Justice Doderidge the Lord Chief Baron Davenport Mr. Justice Jones Mr. Justice Whitlock and many others often rebuke and reject the Presentments of Grand Jurors in Cases of Blood and other Felonies where they have either varied from their Evidence or from the Law the Judges before hand having received some light of the nature and testimony of the Fact from the Informations and Examinations therein delivered into the Court by the Justices of the Peace and Coroners a very good Rule for Judges to observe and often either put it upon an open Evidence in Court which is very inconvenient or discharged them of such a Bill and bound the Witnesses over to the next Assizes which is also very inconvenient in regard Witnesses may die or the Prisoner may die and so the Forfeiture is lost and the offence unpunished and in Cases of Blood there will be too much opportunity given for compounding and making an Interest with the Prosecuter and Witnesses and in these modern times since the happy return of our most gracious Sovereign King CHARLES the second I have known several learned and pious Judges some since dead others yet living and eminent upon the Bench in Oxfordshire Circuit Fine and Imprison several Grand Jurors for their miscarriage and misdemeanour in delivering in Bills of Manslaughter instead of Bills of Murther against the clear and positive directions of the Court. And this may serve for answer to the first Objection from the liberty and affected practice of Grand Jurors in finding of Bills in Cases of Blood according to their own humor and apprehension to introduce a Law that therefore they may find them as they please notwithstanding that the Court adviseth and directeth the drawing of them MURTHER To the second Objection of Mr. Justice Stamford in the place before cited where he saith that whereas the Statute of Glouc. c. 9. saith That he ought to put himself in an Inquest de bono malo this is only intended saith he when he is Indicted of Murther or Manslaughter and not where in the body of the Indictment the Special matter is found as if the Grand Jury may find especial Verdict of per Infortunium or se defendendo c. I answer to this Objection Certainly Mr. Justice Stamford though a very Learned man did well consider this matter and his Opinion therein when he set it down for he informs you not what shall become of such an Indictment where only the Special matter is found by the Grand Jury whether the party may Traverse it for it is but a Trespass or confess it and so have his Pardon of Course upon such confession and then the Judges that are to make the Report or Certificate of the nature of the fact to the King in Chancery must Certifie like blind and deaf men that never saw or heard any thing of the merit of the cause nor understand any thing by evidence of the nature and circumstance of the Fact like the Lay-zealot must believe as the Priest believes preferring Obedience before Truth but sure no prudent and pious Judge will make such a blind Certificate in case of Blood Besides whoever shall judiciously and impartially compare and weigh the Statute of Marlebridge and the Statute of Gloucester together and the reasons of the Statute of Gloucester what mischief it was made to prevent and consider but the nature of the thing will never be of his Opinion in this particular there is so little of reason or true meaning of either of those Statutes in it The words of the Statute of Marlebr are these Murther from henceforth shall not be judged before our Justices where it is found Misfortune In the time of this Statute it seems there were two Juries the Grand Jury and the Jury of Life and Death to present and try the Offences of Murther otherwise the Justices could not judge of it they never passing Judgment upon a Grand Juries presentment which by the way shews that it is left to the Judges not the Grand Jury upon the examination of the cause in trial by the Jury of Life and Death to judge of the nature and circumstances of Murther and of what species or degree it is This Statute of Marlebridge did only declare a new Law that where it was found per Infortunium or se defendendo it should not be Felony and Murther as it was before that Statute but that the party in such case should have upon Certificate of the Justices before whom he was tried his Pardon of course happily then upon the Presentment of the Grand Jury which might be the occasion of this erroneous Opinion of this Learned Judge Then comes the Statute of Gloucester as if the other had not been truly understood or at least had not sufficiently provided for offences of Blood and in plain words as before is mentioned commands That he that kills a man by misfortune or in his own defence or in any other manner without Felony shall be put in Prison until the coming of the Justices in Eyre or Justices of Goal-delivery and shall put himself upon the Country for good and evil that is for life and death which cannot possibly be understood where the Grand Jury find it but per Infortunium or se defendendo c. for that is not Felony and so cannot be Arraigned thereupon whereby to put himself de bono malo so as to bring the matter to Issue between him and the King nor can the Judge in that case as is said before make a true and right Certificate of the offence and matter of fact which must be specially and truly certified according to Law whereby to procure a pardon as that Statute expresly requires And if the party shall plead Not guilty to that Special matter found by the Grand Jury what can that signifie as before hath been shewed for the Jury that is charged with such Indictment must either find the party guilty in Special manner as it
saith he what a lamentable case it is to see so many Christian men and women strangled on that cursed Tree of the Gallows insomuch as if in a large field a man might see together all the Christians that but in one year throughout England come to that untimely and ignominious death if there were any spark of Grace or Charity in him it would make his heart to bleed for pity and compassion I my self have known at one Assizes in the County of Monmouth where one hath had Judgment to die for stealing a Horse and Reprieved in order to procure his Pardon another narrowly acquitted of a Felony and made use of by the Goaler to be the Common-Hangman at the same Assizes that both these persons the one breaking the Goal the other having his liberty as being acquitted were both taken in one Felony and Burglary before the next Assizes committed to the Goal and received Judgment of death and were both hanged together So little doth favour terrour or example work a Reformation upon those that are hardened in their sins and want grace to make good use of them But it is thought horrible and grievous that a mans life the life of a Christian or any of the Members of his body should be taken away for so small a value as thirteen pence I take twelve pence to be but petit Larceny for which he shall be whipt it is very plain that the Statute of 3 Ed. 1. c. 15. declaring what Prisoners are Mainprizable or Barable says amongst other offences viz. or for Larceny which amounteth not above the value of twelve pence nay for less King Aethelstanes Laws begin with Thieves and speak thus First that a man spare no Thief who is in the manner having in his hands taken above eight pence it seems eight pence then was in the nature of a Petit Larceny a Ram in the Saxons time was worth but four pence that which was heretofore sold for twelve pence would now be worth forty shillings In the Assize of Bread long after the Saxons in the 51th of H. 3. eight Bushels of Wheat are valued but at twelve pence In Edward the Third's time a Bushel of Wheat was but ten pence a Haymaker had but a penny a day Reapers of Corn two pence an Acre to be mowed for five pence Threshing a quarter of Wheat or Rie but two pence a Master-Carpenter three pence a day and his man two pence a Free Mason four pence others three pence their Boys one penny Plaisterers and their Knaves so named in the Act the same manner and to find themselves meat and drink See the Statute 25 E. 3. c. 1 and 3. And by the Statute made the 6th of H. 8. of much later time the wages of a Bayliff of Husbandry was but sixteen shillings eight pence and for Cloathing him five shillings with meat and drink a Chief Hinde or Shepherd twenty shillings and for his Cloathing five shillings every Common Servant sixteen shillings eight pence for Cloathing four shillings no Woman Servant above ten shillings her Cloathing four shillings and no Master might have given more And although twelve pence keeps not the old Rate but the Modern yet things are prized in trials of Life far below their worth and no man loseth his life in a single and simple Felony but where the thing stoln riseth to more than many twelve pences especially after the Old estimate but indeed the quality of the Offender circumstances of the offence and of the times are mainly considerable in our Law where any mans life is taken away in such a Felony But to return to our proper Subject and to manifest what the Laws of England were in Cases of blood not long after the Conquerer and how tender a regard the Law of England answerable to the Law of God had of the Life of man By a Canon of our Old English Church he that killed a Man in publick war though justifiable was enjoyned a Penance of forty days By the Common Law killing by misadventure unawares or in a mans own defence was Murther founded upon the Judicial Law before the Cities of Refuge and the forfeiture and punishment of both was as in case of Murther as appears plainly by the Statutes of Marlebridge and Gloucester the Forfeiture of Goods and Chattels remains as yet The words of the Statute of Marlebridge 52 H. 3. are as followeth Murther from henceforth shall not be adjudged before our Justices where it is found Misfortune only which shews before that Statute though a man were killed by Misfortune he had the same Judgment in Law as for Murther So that after the making of that Statute until the 6th of Edw. 1. Writs were granted of course where there was a surmise that the man was killed by Misfortune or se defendendo or in any other manner where the killing was not Felony and thereupon a Pardon of course or Grace was granted to the party who only forfeited his Goods and Chattels and by benefit of that Pardon had only his liberty out of prison which without he could not have This way of Mercy it seems did stretch too far and covered too many guilty persons as I fear yet it does under her wings when as their several Cases were not judicially examined indicted and tried before hand by a Grand Jury and a Jury of Life and Death before a Learned Judge as in ordinary Trials of Criminals whereby it came to pass that many Murthers and Manslaughters escaped under the favourable surmise of a per infortunium or se defendendo as if it were done by misfortune or in his own defence and so came off from a foul Murther by a Pardon of Course Now for remedy in this case came the Statute of Gloucester the words of which Statute are as followeth The King commandeth that no Writ shall be granted out of Chancery for the death of a man to enquire whether a man did kill another by Misfortune or in his own defence or in any other manner without Felony but he shall be put in prison until the coming of the Justices in Eyre or Justices assigned to the Gaol-delivery and shall put himself upon the Country before them for good and evil that is for life or death if in case it be found by the Country that he did it in his defence or by misfortune Then by the Report of the Justices to the King the King shall take him to his Grace if it please him The Report to the King is to Certifie the Record into the Chancery where the King is alwaies present and therefore it is called a Pardon of Course Stamford fo 15. whereas the Kings own hand and fiat is to other Pardons So that here it is very plain that he that will be acquitted and discharged out of Prison for Manslaughter per infortunium or se defendendo ex Gratia Regis must first put himself super Patriam
Juratores super Sacramentum suum praesentant not dicunt there being as much difference between praesentant and dicunt as betwixt a known truth and the report and fame of a fact done And this will the better appear if it be well observed what Grand Jurors write or Indorse upon the back of those Bills they find for though they Indorse such Bills Billa vera yet they never Indorse upon those Bills they do not find Billa falsa as if one were true and the other false for should they do so it would be like an Accusation against the Prosecutor that prefers the Bill and a great discouragement to the Kings Evidence but they modestly write Ignoramus which signifies to the Court they are ignorant of the matter in the Bill and that they find no cause either from what they have heard from the Witnesses or know of their own knowledge to commend it to a farther Enquiry the Verb Ignoro coming from Ignarus not to know to be ignorant And this doth further evince that the Grand Jurors Presentment cannot properly be called a Verdict because a Verdict doth in Law either convict or acquit which neither their Billa vera nor Ignoramus doth the first is always put to a farther enquiry the last is no acquittal to the party for although there be many Ignoramus's against any person yet may more Bills be preferred against the same person for the same offence for it may be they did not find the Bill in regard some Witnesses were absent or corrupted or the matter in the Bill mistaken happily it may be no Felony but something done in jest or in the nature of a Trespass or a Natural death instead of a Murther or the Witnesses of no Credit or the like But if there be any thing of Truth in the Bill proved to them to make a Crime although not so fully as is laid in the Bill they must not in such case write Ignoramus as if they knew nothing of a Crime as if it be a Murther in the Bill and the Proof reacheth but to an Infortunium or se defendendo or to any degree of unlawful killing they must not write Ignoramus upon the Bill or if Burglary and the Proof makes it but a single Felony and no Burglary they must not Indorse it Ignoramus but in all such cases where they are in any doubt the best way for them will be to advise with the Learned Judge to move the Court for directions therein It is too great a Scandal to a Grand Jury Persons in that quality highly to be esteemed to say that their Ignoramus that is their Ignorance is their Verdict It is very safe for Grand Jurors before they find an Ignoramus to examine every Witness produced but if they have many Witnesses in Murder or Felony if any one Witness induce a strong and pregnant Presumption it is enough without perplexing themselves in hast of business they need not examine any more but put Billa vera unto it If a Grand Jury find upon an Indictment of Murther that A. killed B. what is it to them as hath been said before whether it be Murther or Manslaughter whether it were done Ex malitia praecogitata per Infortunium se defendendo in loco tempore belli or otherwise this is Special matter and Special matter ought to be found when it is at Issue by another Jury and must arise I mean the truth of it super totam materiam of the Evidence or proof on both sides which can never be found and determined by a Grand Jury that hear but one side for very seldom is matter of Fact truly stated in a matter of difficulty by one side and therefore as before is said the Statute of Gloucester provides that every Man-slaughter per Infortunium or se defendendo shall be found per Patriam after the Prisoner hath joyned Issue with the King and put himself de bono malo of good or evil that is either for his Acquittal or Conviction super Patriam to be tried by his Country And the Jurors of Life and Death themselves are not tied as not strictly to the form of an Indictment so not to the whole matter of it not to the form as it was well urged by Sergeant Montague Reader at the Arraignment of the Earl of Somerset for Murther by poysoning of Sr. Thomas Overbury in the Tower who told the Jury That they must not expect visible Proofs in a work of darkness that many things were laid in an Indictment only for form that they must not look that the proof should follow that but only that which is substantial and the substance in that Case must be this Whether my Lord of Somerset procured or caused the poysoning of Sr. Thomas Overbury or not The Lord Coke then Chief Justice and other Judges present at the Trial stood up and said The Law is clear in this point that the Proofs must follow the Substance not the Form that the Law gives forms in Indictments but substance in proofs And yet this was spoken to a Jury of Life and Death who are more carefully to look into Circumstances and Forms because their error is incurable if they Convict a man to lose his life wrongfully than Grand Jurors are And I cannot but further observe in this Case of Sr. Thomas Overbury that which I would have all Grand Jurors and Jurors of Life and Death observe as an Instance to guide them in other Cases of like nature that although it was laid in the Indictment That the ninth of May Anno 11 Jac. Regis Richard Weston who was procured by the Earl of Somerset gave to the said Sr. Thomas Overbury a poyson of green and yellow colour called Rosacre in Broth and the first of June Anno 11 Jac. Regis supradict gave him another poyson called white Arsenick and that the tenth of June Anno 11. supradict gave to him a poyson called Mercury sublimate in Tarts and the fourteenth day of September Anno 11. supradict gave him a Glister mixt with poyson called Mercury sublimate Vt praedict Thomam Overbury magis celeriter interficeret murdraret Et praedictus Thomas Overbury de separalibus venenis praedictis operationibus inde a praedictis separalibus temporibus c. graviter languebat usque ad 15. diem Decembris Anno 11. supradict quo die dict Thomas de praedict separalibus venenis obiit venenatus c. And albeit it did not appear or could appear of which of the said poysons he died yet it was Resolved by all the Judges of the Kings Bench that the Indictment was good for the substance of the Indictment was whether he was poysoned or not and it appeared that Weston within that time aforesaid had given unto Sr. Thomas Overbury divers other poysons as namely the powder of Diamonds Cantharides Lapis Causticus and powder of Spiders and Aquafortis in a Glyster And it was resolved by all the said Judges that albeit all
Felony whereupon he is so Arraigned not guilty and thereupon had been found guilty after the Laws of the Land Upon the penning of this Act it seems clear that all Indictments for the unlawful or wilful killing of any person ought to be made Murther as they were formerly before this Act. For if the Prisoner should be Arraigned upon an Indictment only of Manslaughter according to the now distinction of Manslaughter and upon his Arraignment should stand mute not Answer directly or challenge peremptorily whereby he could have no Tryal it would be a great question Whether he could have Judgment upon this Act The words are petty Treason wilful burning of Houses Murther Robbery Burglary or other Felonies For as it is not named here by the term Manslaughter so it cannot with any congruity be comprehended under any of those Heads Not under the general Head of other Felonies after the commemoration of so many several Felonies next before as Burning of Houses Robbery Burglary and other Felonies must needs be intended of such like Felonies or Thefts And what Judge in case of Life and Death will proceed upon such a moot point or rather a clear Case to the contrary to give Judgment and Sentence of Death upon any by this Act of Parliament Then comes the Statute made in the 28 H. 8. c. 1. and rehearseth all these former Statutes viz. 22 H. 8. 23 H. 8. and the 25 H. 8. and continues them all until the next Parliament and provides further That such as be within Holy Orders shall be under the same pains and dangers that others be all within Holy Orders being by the 23 H. 8. excepted in Cases of Murther petty Treason and Felony from the pains and dangers that Lay persons suffered for such offences It seems those in Holy Orders then began to lose their esteem as appears more fully in the ensuing Act which perpetuates the former Acts. Then comes the Statute made in 32 H. 8. c. 3. and rehearseth the same Acts again and makes them perpetual and Enacts That all persons within Holy Orders which by the Laws of this Realm ought or may have their Clergy for any Felonies and shall be admitted to the same shall be burnt in the hand in like manner as Lay Clerks in such Cases and shall suffer all such pains dangers and forfeitures as Lay persons in like Cases Then comes the Statute of the 1 Ed. 6. and after it hath declared what Acts shall be Treason declares what Offences shall be outed of Clergy viz. Such persons as in due form of the Laws shall be attainted or convicted of Murther of malice prepensed of poysoning of malice prepensed of breaking of any House by day or by night any person being put in fear robbing any person in or near the High-way felonious stealing of Horses Geldings or Mares or for felonious taking of any Goods out of any Parish Church or other Church or Chappel all Offenders in any of these Cases shall be excluded of the benefit of Clergy whether they be convicted by Verdict Confession or stand Mute c. and that in all other Cases of Felony Clergy may be allowed Here is no mention of petty Treason burning of Houses and Barns with Corn and Accessaries before to be outed of Clergy as is in the 23 H. 8. c. 1. So that it seems after the making of this Act they might have had their Clergy the new Offences added to this Act to be outed of Clergy that were not in that Act of 23 H. 8. are only stealing of Horses Geldings and Mares And by this Act Poysoning is made Murther although no malice be proved and Clergy taken away Then comes the Statute of 2 Ed. 6. and this Statute gives remedy in several Cases of Murther and Felony where there was none before at Common Law As first where one is feloniously stricken in one County and dies thereof in another Secondly where one is Accessary in one County to a Murther or Felony in another County before this Statute no sufficient Indictment in any of these Cases could be taken in either of the said Counties for that by the custome of the Realm the Jurors of the County where such party died of such stroke would take no knowledge of the said stroke being matter of Fact in a forreign County although the said Counties and Places adjoyned very near together nor the Jurors of the County where the stroke was given could take knowledge of the death in another County although such death most apparently came of such stroke so that such Offence and the other Offences before mentioned for the like reason remained unpunished and such Murther could not be proceeded against either by way of Indictment or Appeal Now this Statute provides That an Indictment found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon sight of the dead Body or other Justices that shall have power to inquire of such Offences shall be as good and effectual in Law as if the stroke and poysoning had been committed and done in the same County where the party shall dye or where such Indictment shall be found And likewise provides That such Party to whom Appeal of Murther shall be given by the Law may commence take and sue Appeal of Murther in the same County where the same person so feloniously stricken or poysoned shall dye as well against the Principals as against every Accessary to the same Offences in whatsoever County or Place the Accessary or Accessaries shall be guilty of the same And doth further provide That where any Murther or Felony shall be done in one County and another person or more shall be Accessary or Accessaries in any manner of wise to any such Murther or Felony in any other County that then an Indictment found or taken against such Accessary or Accessaries upon the Circumstances of such matter before the Justices c. where such Offence of Accessary shall be committed shall be as good in Law as if the principal Offence had been committed in the same County where the same Indictment against such Accessary shall be found Here it may be observed That the Appeal given by this Statute to the party where one is wounded or poysoned in one County and dies thereof in another must be an Appeal of Murther otherwise it will not lye either against Principal or Accessary by the words of this Statute So in case of an Indictment where it is said in this Statute where any Murther or Felony shall be committed in one County and the Accessary be in another County here the word Murther must be one Species and Felony that is Thest another viz. carrying of stoln Goods into another County So that the Indictment in this case against the Principal must be Murther or the Accessary thereto is not tryable in another County and there must be a Certificate of such Conviction or Attainder of the
am not of their Opinion That the words ex malitia praecogitata came into Indictments immediately after the aforesaid Statute of 23 H. 8. Certainly there were Murthers committed and that frequently of malice fore-thought before the making of that Statute and those Murtherers had their Clergy also otherwise that Statute had never been made to take it away If the Grand Jurors shall say They will not find those words Ex malitia praecogitata put into the Indictment except the malice be plainly proved to them then farewel that distinction and inference of implied malice which the Law makes in many Cases and which otherwise cannot be made they may as well say That they will not find such words Treason that are Treasonable because no Act of Parliament or express Case at Common Law says those particular words are Treason or that they will find no Indictment of Burglary although the Goods stoln be found with the Thief and the dwelling House broke because no Witness stood by to see the breaking of the House entring into it and stealing thence the Goods Or against a Cut-purse though the Purse or Mony be found in his hand or because none see him take it forth of his Pocket or to find the Indictment because it is laid to be done Vi armis with force and arms and yet said to be done in the same Indictment clam secrete sine notitia privily secretly and without notice of the party which in Fact could not be done if it were done by force or arms Or to find an Indictment of Robbery done upon the High-way against those that rob in Vizards notwithstanding the mony be owned and found about them because the party cannot swear he saw their faces and that these were the men Or that such a one kill'd a man that comes out last from him with a bloody Sword in his hand and no person besides with him In all these Cases it is possible the Parties accused might find the Goods stoln and so might the bloody Sword be sound and another do the Fact but sure here is great and violent presumption sufficient for an Accusation for a Grand Jury to find an Indictment which is but an Accusation upon Record to bring the Delinquent or Party so strongly suspected to a Judicial Trial and as well may it be presumed when one Christian is kill'd by another it may be Murther that there may be a seed of malice in the will of him that did it by a voluntary and spontaneous motion in that act that may upon a greater Debate contain some circumstance in it that by some reason in Law better known to the Learned Judge than the Grand Jurors that may in Law prove malice expressed or implyed in the criminous Person And if it be so difficult in cases of blood for Grand Jurors to determine what is Murther and what is not let them consider how dangerous a thing it is for them to miscarry in their Presentment in cases of blood of innocent blood as is before manifested and so acquit the Murtherer and take the imputation of blood-guiltiness with them from the Assizes to their respective Families where it may and will cry against them and the whole Kingdom for vengeance I do therefore submit it to their serious consideration upon what hath been said Whether it be not much better and a safer way for them to submit their Judgments herein to the Rule of Law and the Resolutions of the Learned Judges than by their extenuating presentment for the Court can go no higher than they present to stifle Justice in the birth and to acquit a Murtherer For the Indictment although no part of the Trial yet is the very Basis and Foundation of all the other Proceedings And let them consider how strict formerly the very Law of England was in King Edward the Second's time in cases of blood where the very will and intent to kill a man although it was not executed was punished for the Deed although the party wounded recovered of his wounds A memorable Case there was in that King's Reign cited by Justice Stamford where one compassed the death of another and did so grievously wound him that he left him for dead but afterwards the party recovered this was then adjudged Murther because his will appeared so plainly to have kill'd him For as Bracton says In maleficiis spectatur voluntas non exitus then was the Will by our Law as it is yet before God reputed for the Deed But now our Law couples the Will and the Act together in cases of blood but looks more upon the Act than the Will For though the Will do neither intend the Act as it is done nor approve of it after it is done yet if the Will in any part of the Act be criminous it makes the Offender in our Law in cases of blood guilty of the whole Fact with all the obliquity and evil in it As if a man intend only to beat another to strike him but not to kill him and the party die of the stroke it may be murther in him that gave the stroke So if three men come to make a Disseisin and one of the three kill a man the other two persons are guilty as principals in the murther although they neither consent to it will it or strike the Party nor came with that intent but only were in company to have done another Act. So if one to kill his Wife give her lying sick Poyson in a roasted Apple and she eating a little of it give the rest to a little Child of theirs which the Husband lest he should be suspected suffereth the Child to eat who dieth of the same poyson this is murther though the Wife recover for the Poyson ministred upon malice prepensed to one which by a contingency procureth the death of another whom he meant not to kill nor bear any malice to shall be as great an Offence as if it had taken the effect which he meant proceeding from a naughty and malicious intent So where two men combat together upon the evil and provoking words of a woman and the one killeth the other the woman in this case was Arraigned of the death of him that was kill'd and in this Case the Grand Jurors found it murther So if an ignorant person take upon him to give Physick to one that is not well and through his ignorance administreth that unto him that apparently kills him this is murther And so it might be instanced in many similar Cases which are not to be disputed by Grand Jurors but presented by them in re forma as the Indictment is advised by the King's Council and comes to their hands where they find as before is said a criminous Party in the Indictment and a Body found of a reasonable Creature certainly or probably kill'd by him although the Evidence be not express to every circumstance of aggravation as it is laid down in
which would be against the Laws and liberty of the Subject And therefore the Grand Jurors have the greater reason to enlarge in their Declaration or Accusation for the King as in all Declarations at Law is usual as far as the Law will heighten all offences in Blood since the other Jury have so much liberty to lessen the damages and extenuate the Crime whatever the Accusation is Now upon what I have written in this Preface and the Book I am not ignorant how much I have subjected my self ad captum Lectoris to the various censures of the several Readers especially such as use to serve or may serve on Grand Juries Gentlemen I know of the best quality next to the Peers of the Realm and in which Employment for their King and Country it is an honour to serve And I hope it will be no dishonour nor indignity to any of them to entertain or at least to peruse this Advice how they may with the greatest prudence and fidelity pass through an Enquiry after Innocent Bloodshed when they are called unto it and leave nothing therein of this Crying Sin to be repented of that it was not fully Enquired of by them that so their exact care and Justice may keep themselves secure from the guilt of Innocent blood I doubt not but it will meet with some Readers so possessed with the contrary Opinion by an erroneous practice or misunderstanding of the Laws and of the Grand Jurors Oath that so soon as they read the Title will cast away the Book and cry a Paradox Others happily more unbiassed in their Opinions and of more moderation and ingenuity if they dislike will publickly confute it with stronger arguments and grounds of Law and Reason and better experience in point of practice and so determine the point and in that I shall have my end I am very certain that I entred not upon this Subject with an offensive mind but cum moderamine inculpatae tutelae not with a direct design to kill any but rather to fright weaken and drive away that Daemon of Passion in man to commit Murther and to give the best advice to Grand Jurors in Cases of Blood A small thing oft times hath the power to redress a great Inconvenience yea to take up a cruel Feud as Virgil saith of that of Bees when they are actually engaged in battel Hi motus animorum atque haec certamina tanta Pulveris exigui jactu compressa quiescent ADVICE TO Grand JURORS IN Cases of Blood IT is the great happiness freedom and liberty of the English Nation that in all common and ordinary Trials of offences Criminal and Capital as Treasons Murthers Felonies and Misdemeanors each Freeman and so are all the people of England as to this shall receive his Trial per pares by his equals which is well provided for by the great Charter of the Liberties of England in these words No Freeman shall be taken or Imprisoned or disseised of his Freehold Liberties or Free-customes nor be Outlawed banished or in any manner destroyed c. but by lawful Judgment of his Peers or by the Law of the Land This Chapter of Magna Charta is partly repeated in a later Statute and there Law of the Land is expounded Indictment process by Writ original and course of the Law Another Statute recites it and instead of the words Law of the Land puts in Process of the Law as equivalent and Synonimous signifying the same thing And again a Statute of that King says No man shall answer without Presentment before the Justices or matter of Record or by due Process and Writ original according to the old Law of the Land as it is well observed by the Lo. Cook that Oracle of the Law In pleas of the Crown and other Common offences and Nusances the King cannot in an ordinary way put any man to answer but he must be apprised by Indictment or other matter of Record For by the Law of the Land a Felon or a Murtherer cannot be convicted or attainted though he confess the Felony or Murther until a grand Jury have presented the offence nor can any person generally and ordinarily be convicted or attainted or have Judgment of life or Member upon any Criminal accusation but there must be two Juries pass upon him at least 24 persons the one a Grand Jury ex parte Regis to present the offence fit for a trial the other a petit or lesser Jury inter Regem personam accusat to try the truth of that Presentment The Grand Jury coming from all parts of the County the other Jury of the very neighbourhood de vicinetto where the offence was committed for vicini vicinorum facta optime praesumuntur scire and so in probability of Law are presumed to know something experimentally besides what they have by Testimony both of the quality of the person truth and nature of the offence with all its circumstances and happily the credit of the Accuser and his Witnesses It is not sufficient that they dwell in the County but they are to be of the Neighbourhood nay le plus procheins to the place of the fact as by Artic. super cap. 9. it is appointed They must be most near most sufficient and least suspicious ibid. The first being called a Grand Jury or a Great Jury either in respect of their number being above twelve the general certainty of all other Juries and may be as many as the Court please but usually exceed not 23 and in good prudence when there is much or weighty business there ought not to be a lesser number for if there be less or more they may be so divided that there can be no verdict as by experience hath been observed for less than twelve agreeing cannot make a Legal verdict Or they are called Grand in respect of the quality of their Persons and greatness of their Estates ability of their Judgments being of good Education or lastly which I conceive the best reason that propter excellentiam they are styled Juratores pro Domino Rege pro Corpore Com. Jurors for our Soveraign Lord the King for the County of S. and as the Commons in Parliament are to the whole Kingdom they have an unlimited power to present all offences committed in their County that are contra Pacem Coronam dignitatem Regis against the Peace the Crown and dignity of the King against either Statute or Common Law they being the great and grand Spring or Primum mobile of the Court that gives motion to all the other wheels their Presentment being the key that either opens or shuts the proceedings of the Court in every offence And therefore it is that the Law of England takes care that as well the Grand Jury as the other Jury consist of persons that are probi legales homines good and lawful men each man must be probus quasi probatus an approved honest man vel
Notwithstanding he informs us that this King William post acquisitionem Angliae after he had obtained and setled the Kingdom in peace in the fourth year of his Reign Concilio Baronum suorum by the advice of his Nobility he caused to be summoned throughout England the Nobles Wisemen and such as were skilful in the Laws Rights and Customes of England and elected twelve Knights out of every County who were sworn before the King to make a true Collection of the said Laws and Customes Nihil praetermittentes nil addentes nil praevaricando mutantes Amongst these Laws we do not find Murther punished with death It being so near the time of the Danes and Saxons it seems he made no violent alteration of their Laws but kept their custome of aestimatio Capitis or Corporal punishment We find amongst his Laws these words Interdico etiam ne quis occidatur vel suspendatur pro aliqua culpa sed eruantur oculi abscindantur testiculi vel pedes vel manus itaquod truncus vivus remaneat in signum proditionis nequitiae suae I command that none be killed or hanged for any offence but that his eyes be put out and his Testicles or feet or hands be cut off so that the Trunk of his body may remain alive in token of his Treason and wickedness any punishment then but loss of life and banishment for it is said amongst his Laws Prohibeo ut nullus vendat hominem extra patriam I forbid that any person be sold out of his Country Now although that these kinds of punishments are not commensurate to the offence or to the Law of God or to the Laws of England in cases of Murther there being not life for life yet who is there almost amongst the Sons of men that would not rather chuse to be hanged than to have his eyes put out his Testicles feet and hands cut off and to survive with such a brand of Ignominy Amongst the Laws of the Conquerer in the Title Lex Murdrorum it is there found If any be found Murthered the Village in whom he was so found was within eight days to deliver the Murtherer Justiciae Regis if he were not found within one Month and a day the Village was to pay forty marks if the Village were not able then the Hundred was to pay it and this mony was to be sealed up under the Seal of a Nobleman of the County and sent into the Exchequer there to remain a year and a day to the end that if the Hundred or Village could within a year and a day bring the body of the Murtherer to Justice they should have their mony again if they could not within that time take him the Parents of him that was murthered should have six mark and the King the rest if he had no Parents then his Lord or Master should have it if no Lord or Master then Selagus ejus i. e. fide cum eo ligatus that is his Pledge or Surety if he had none of these then the King should have all the forty Marks which was as much then as five hundred pounds now sub cujus protectione pace degunt universi If the Murtherer were found and would not defend his Innocency Judicio Dei scilicet aqua vel ferro that is stand in hot scalding-water or pass barefoot over hot-bars of Iron fieret de eo Justitia let Justice be executed up on him but what this Justice was or what punishment he should suffer some doubt there is Some say it was ad voluntatem Regis or the usual way of aestimatio Capitis or Corporal punishment and not to suffer death because as before is observed there is found amongst those Laws Ne quis occidatur vel suspendatur pro aliqua Culpa though others are of another Judgment that it was Capital if the King pleased whatever the punishment was you shall not read of any Insurrection or Rebellion before the Conquest when the view of Frank-pledge and other ancient Laws of this Realm were in their right use There are many that are full of Sr. Moore 's kindness and think it too much that a man should lose his life for crimes under Murther as for Theft c. but none so kind to a Murtherer for which anciently a loss of a Hand Eye Leg or other member was in use yet the party taken in the manner hand habend having the stoln thing in his hand in his possession might be killed amongst the Saxons he could not buy his Crime out and the Spanish condemning to the Gallies is thought by some the only way Mr. Daniel will have it that as yet writing of King Henry the Second's time they came not so far as Blood which is not so for King Henry the First abrogating the were-gilde by which a man might have bought out his offence made a Law says Hoveden Vt si quis in furto vel latrocinio deprehensus fuisset suspenderetur to hang the Thief with whom Vigorniensis and Rad. Niger agree And the Lo. Coke observes in the third Institutes that before the Reign of King Henry the First the Judgment for Felony was not alwaies the same but King Henry the First ordained by Parliament that the Judgment for all manner of Felonies should be that he should be hanged by the neck until he be dead After in the latter end of the Reign of King Henry the Third we find a Thief who had stoln twelve Oxen beheaded Capital punishments have not only been in use against Homicides and Felonies but other Transgressors also and amongst those who worshipped God rightly as is well observed we meet with no Divine precept before Judah which makes Whoredom worthy of death yea when he is told Tamar thy Daughter in law hath played the Harlot he answers Bring her forth and let her be burnt Amongst the Britains if the Wife killed her Husband she was to be burnt so are the English Laws to this day We may proceed says Grotius by conjecture of the Divine will with the help of Natural reason from like to like and that which is a Law against Felonies and Murthers may be extended to others as dangerously mischievous It is a hard dispute whether there be more mercy in death or putting out of Eyes cutting off Legs Arms c. or in the Gallies It is believed that the boldness and number of Malefactors begot the Law of death and those whom Death with so much Infamy so often reiterated before their eyes cannot fright will never think any Torment whatsoever where life is left them though with more misery than can be spoken terrible It is well observed by the Lo. Coke that Videbis ea saepe committi quae saepe vindicantur Those offences are often committed that are often punished and he gives his Reason for it That the frequency of the punishment makes it so familiar as it is not feared For Example
a more diligent inquiry after Such distinctions and directions from the Judge being much more proper for a Jury of Life and Death when any Question of Blood comes before them to be considered of and to be tryed and determined who have the only means to do it by hearing all Parties all Evidence on both sides as also the directions of the Court as to the quality and nature of the Offence to give them a true light to make a right distinction therein It is well said by a Learned Writer of the Law An Indictment is an Inquiry finding some Offence against the King It was the Kings Action whereupon the Party shall be Arraigned or put to Answer by the King and tryed by another Jury Every strong suspicion of such an Offence though it be in case of Felony appearing of Record hath the force of an Indictment as in an Action of Trespass for Goods carried away if the Defendant plead Not Guilty and be found Guilty he is a Felon c. So in an Appeal of Murther if the Plaintiff after Declaration be Non-suit the King shall proceed upon that Appeal as upon an Indictment found So He. And as it is in Doctor and Student The Grand Jury is only charged with the effect of the Bill viz. whether he be guilty of the Felony or Murther in the Indictment within the Shire and not whether he be guilty modo forma as in the Bill is specified And so when they say Billa vera they say truly as they take the effect of the Bill to be so it is though the Bill vary from the day year and place so it vary not from the Shire as if there were false Latin in the Bill they might well say Billa vera for their Verdict stretcheth but to the Felony not to the truth of the Latin There is very much difference in Law betwixt an Inquiry and a Trial betwixt a Presentment and a Conviction besides the Judges do now give it in charge to the Grand Jurors and so part of their duty if not of their Oath that when they have such an Indictment of Murther come to their hands if they find upon their Evidence that the party said to be slain in the Indictment by the person there charged with it with the time and place and manner how they are to enquire no farther into the nature of it what offence this is in Law but to find it as it stands in the Indictment which for ought they know upon a further and more clear discussion of it in Court may appear as full as it is laid in the Indictment however it passeth fairly out of their hands they may more clearly than Pilate wash their hands in Innocency from the Innocent blood of such a person and very well discharge their Oath the Law and a good Conscience letting it pass from them with the Indorsment of Billa vera a Bill that hath truth in it fit to be considered further by the Court and another Jury And as Indictments at the Kings Suit do succeed Appeals at the parties Suit so ought they to be drawn and presented as large and as full for the King as an Appeal of death for the party which ever was for Murther if the party Appellant would so have it and that may very reasonably be applied to Indictments that the Statute of Gloucester directs in Appeals viz. That no Appeal shall be abated so soon as they have been heretofore But if the Appellant in an Appeal do declare the Deed the year the day the hour the time of the King and the Town where the Deed was done and with what weapon he was slain the Appeal shall stand in effect Now so great an exactness of the year day and hour is not required in an Indictment as in an Appeal being the only violent prosecution of the party in favour of life many Niceties were stood upon more than in other Actions And Mr. Justice Stamford says A man is not of necessity compellable at Common Law at this day to put into his Declaration the hour the day was necessary to be put down in an Appeal for if the Appellee can prove by certain Demonstrations and Testimony of credible Witnesses that he was the same day at another place at such a distance as it was not possible for him to be there the day of the committing of the fact or twenty miles off the same hour the murther was committed the Appeal shall abate Yea so many were the Niceties of Appeals which formerly were in use not only in Murther but in all cases of Felony and so full of Bribery and corruption in the easie composition of all sorts of Murthers and Felonies and did so much delay the Kings prosecution by Indictment which was not to begin until the year and day past after such Felony and murther in which time commonly the Appellant grew slow in his prosecution and was many times agreed with and by the end of the year Witnesses were dead and gone all was cold and forgotten as also that the Appellant must sue in proper person which suit was long and costly and made the party Appellant weary to sue For remedy whereof the Statute of the third of H. 7. was made That the King shall not stay until the year and day were past but proceed at any time after the Murther committed as also that the Appellant shall proceed in his Appeal by Attorney all helps the Law could devise to prevent delays in cases of Murther and to find out and punish the blood-guilty person observe the penning of that Statute were there nothing else to be said in this Argument how necessary it is that all Indictments be made Murther that are brought at the Kings suit within the year and day as the King by this Statute is enabled to do the words whereof are as followeth And if it happen that any person named as principal or accessary be acquitted of any such Murther at the Kings suit within the year and the day that then the said Justices shall not suffer him to go at large but either remit to Gaol or Bail him at discretion until the year and day be past And further in the said Statute it is said If the MURTHERER escape the Town shall be amerced as also that the Coroners shall return their Inquisitions before the Justices of Gaol-delivery and they shall proceed against such Murtherers and as it is before in the said Statute The King shall not stay until the year and day were past but proceed at any time after the Murther committed So that prima facie the Statute looks upon all Manslayers unlawfully to be guilty of Murther And so the Indictment ought to be drawn or they cannot be continued in Gaol nor Bailed by this Statute until the year and day be out nor the Town amerced for such escape nor the offender proceeded against by the King within the year and day
by Indictment Now generally in these days since the making of that Statute all proceedings in Murther and Felony are by Indictment at the Kings suit not but that the prosecution by Appeal is still in force and the party hath his election which way he will proceed either by Appeal at his own suit or by Indictment at the Kings suit yea even after the Trial had by the Kings suit in some cases although at the Kings suit they have been acquitted of the murther but that the abuse of these and many other obsolete Laws hath taken away the frequent use of them except it be through the miscarriage of Grand Jurors and Jurors of life and death in cases of murther the one in not fully presenting the murther the other in not conscientiously giving a Verdict according to their Evidence and thereby provoking the party whose Relation is slain to the nice and chargeable remedy of an Appeal upon such Appeals several have been executed after they have been acquitted by trial at the Kings suit upon Indictment one Woman in my time in Berkshire for petty Treason for killing her Husband after she had been acquitted for the same fact at the Kings suit by Indictment was convicted upon the Appeal and burnt at a stake Look how high the Appellant shall draw his Appeal against the Appellee or Defendant as if for Murther in this case if the Appellant shall surcease to prosecute such Appeal as by Nonsuit Release Retraxit the Woman by marrying a Husband pendente lite or by the Act of God as if the Appellant die or by the Act of the Law as if the Appellant take the priviledge Now in all the former Cases where the Appeal ceaseth by the Act of the Appellant that is he that prosecuteth the Appeal after declaration in the Appeal the Defendant shall not go at liberty but shall be Arraigned upon the same Declaration at the Kings suit for that it doth appear by the Declaration there is a Murther committed and the year day and place when and where the same was committed and the same is not tried and the Law will not allow such great Offences whereof it taketh notice to be concealed and remain unpunished neither will the King at his suit suffer it to be extenuated into a lesser degree of Murther than the Appellant did so careful have the Laws ever been in punishing of Murther and revenging Innocent blood which it seems and as before is observed whilst Appeals were in use and the Kings suit must stay until the year and day were past many Murtherers escaped unpunished and the killing of men was made as now it is a trick of Youth Valour Hectoring and Jest in regard of so great impunity it found by frequent Pardons Indulgence of Grand Jurors and others And truly it is much with us in this Age as it was in those daies when Appeals were in use and had the preheminence of the Kings suit Never more killing of men by Duels Tavern and Game-house Quarrels and yet never more impunity to such Mankillers such valiant murtherers of their fellow Christians especially if the Mankiller have either a fame for Honour or Valour Mony or Interest of Friends to procure pity or pardon and compassion from the Grand Jury to find it Manslaughter if they will go so high where it is Murther and then through that false glass to represent it to a most Merciful King and thereby obtain a Pardon for the whole offence or else upon his Arraignment shall confess the Manslaughter and procure a respect of his burning in the hand because a Gent-hand killed the man and afterwards procure a Pardon for that burning in the Hand which the King may grant it being no part of the Judgment but a notifying the Person that by that Mark he may be known again once to have had his Clergy that he may not have it a second time Many Recent and fresh Instances in particular Cases of blood might be given were it safe or seasonable to make reflections of divers Murthers that have too easily slipt through the hands of Justice by the aversness ignorance or partiality of Grand Jurors in not observing the direction of the Judges in this particular of finding Bills Murther instead of Manslaughter yea and that many times upon directions given in Court after open Evidence which open Evidence to a Grand Jury especially in Cases of blood ought to be avoided as much as may be in regard it doth too much lay open and betray the Kings Evidence to standers by it may be Friends of the Prisoner that may make too much use of it for the benefit of the Prisoner and prejudice of truth besides many Witnesses although upon their Oath will not speak so fully in Court before the Bill found and happily in the presence of the Party or his Friends as in a Grand Juries Chamber more private besides where it is before-hand known what witness-pinching endeavours will be used to keep him off or by some sinister way to be complied with to lessen or hinder his Testimony to the second Jury if there be occasion besides the Kings Evidence before Issue joyned betwixt the King and the Prisoner is alwaies to be secret only open to the Grand Jurors who are alwaies styled Juratores pro domino Rege the Kings Jury and are sworn to keep the Kings Counsel their Felons and their own now the Witnesses for the King are said to be of the Kings Council which would abate much of their Oath if Evidence and the Kings Informations in Cases of Bloud should be open and common And as you have heard what great Inconveniences were in the use and abuse of Appeals in the Reign of King Henry the Seventh so indeed as many if not more Instances of mischief and inconvenience might be given of Grand Jurors in this Age the best things corrupted proving the worst you may conceive what great complaints have formerly been made against Grand Jurors in Parliament in erring upon both hands by taking too much liberty to themselves and not observing the directions of the Court that there was a necessity of making an Act of Parliament in the 3 H. 8. immediately after Appeals began to fall off as you may read in that Act of Parliament made to reform them and to reform the Sheriffs power in retorning them the whole Authority of retorning Inquests to take Indictments being by force of the Statute of the 11 H. 4. in Sheriffs and Bayliffs of Franchises It is observed by the Statute of the 3 of H. 8. that by reason of Bribing of Sheriffs and their Bayliffs and Officers many true and substantial persons were divers times wrongfully indicted of Murther Felonies and other Misdemeanours to the utter loss of their Lives Goods and Lands And sometimes also great Felonies and Murthers were concealed and not presented by the Grand Jurors partially retorned by the Sheriffs or their Ministers for the prevention whereof it was
differences betwixt them yet all was reconciled and they good friends again and this only a casual and sudden difference betwixt them upon a new occasion and exceedingly provoked unto it by him that was slain so that we cannot be satisfied to find it Murther in any of these cases being upon our Oaths to make true Inquiry and if we find not the malice being matter of Fact another Jury cannot try it Besides we have former practice of our side other Grand Jurors have had and taken the same Liberty and why should not we The Judges likewise in their Charges inform us of all the specifical differences in Manslaughter which we conceive they intend we should take notice of as it comes in proof before us in our Inquiry This I conceive is as much as Grand Jurors have said or can alledge for themselves where they are not positively partial and go clearly against their Evidence why they do not or will not for such is some of their Language find it Murther in all Cases as the Court directs and as the Bill of Indictment is drawn and sent to them as the King's Declaration To satisfie these reasonings and mistakes though sufficient hath been said already to satisfie a wise and sober Grand Jury-man especially in a Case of Blood which can never receive too strict an Inquisition by a Grand Jury the first Inquisitors of it in Court let them observe that neither themselves nor the party accused can be prejudiced by what they shall so find be it never so high First not themselves they do but present a probable Accusation no Conviction against such a person that hath had his hands in Blood hath kill'd a man is Vir sanguinis And here certainly it will be the best satisfaction to Conscience and that is the best Friend we can satisfie to have all the Circumstances of the Fact as they are laid in the Indictment to be more judicially and circumspectly examined sifted and tryed out by another Jury by a Learned Judge in a publick Court to the parties face where the King's Witnesses and the party himself and his Witnesses may be fully heard and the whole matter fully tryed and debated which cannot be done in a Grand Juries Chamber but is altogether stifled and obstructed if the Grand Jurors suffer it not to come to this Judicial Test and Tryal but shall put out the words Ex malitia praecogitata or otherwise alter the King's Declaration and Indictment which already hath had proceedings in it and that in Court of Record where it hath been advised by the Kings Council upon perusal of Informations and Examinations from Justices of Peace or Coroner in that Case certified to the Court and upon hearing the Prosecutor and his Witnesses and so drawn and presented to the Court Witnesses sworn to it and Indorsed Jurat in Curia sworn in Court and so become something more than an ordinary Declaration or Writing in Parchment to be altered by any without advice or direction of the Court for if it might be so the King's Council and their Advice together with the Judges in such Cases would signifie very little in drawing or advising any Indictment of Murther if Grand Jurors in their Chamber may from their own advice alter it as they please the Judges themselves being as well concern'd in Conscience to do right to the Prisoner and Party accused as Grand Jurors can be And also admit that the Witnesses shall inform the Grand Jury that it was a passionate and sudden falling out or that it was done unawares or in his own defence it is but what they apprehend it to be they can inform but what they saw or heard or believe they are in the Affirmative only and can prove but for that instant the Fact was done they dare not swear that there had been no falling out before and as they cannot or haply will not prove an express malice so neither can they swear that there was none at all or not such a malice as the Law implies neither can the Witnesses judge in all Cases what is Manslaughter at Common Law what upon the Statute what per Infortunium what se Defendendo what is Justifiable or what is Murther neither indeed in all these Cases can the Grand Jurors nor is it convenient for them to judge of all the specifical differences each Circumstance may so much alter a Case and will they then by their uncertain Judgments in case of Murther conclude and preclose the Court and determine the Law that this Fact of Blood shall go no higher than they please to adjudge it as in the case put of a Child that kills another not the Grand Jury who see not the Child but the Court and the other Jury shall inspect the Child shall judge whether the Child could do such an Act felleo animo ex malitia praecogitata and so be guilty of Malice and Murther the Court and not the Grand Jury being to judge an malitia supplebit aetatem whether upon hearing him speak he may be thought capable of malice as some at more tender years are than others so in the case of a Fool or a Lunatick a Dumb or Deaf person so in the case of a Reconcilement after a falling out and then a killing can either Jurors or Witnesses or any that hears but one side state the case aright or judge whether the Reconciliation were perfect or not so as to take away all the seeds of malice revenge or discontent And Mr. Justice Stamford sayes That those that are Dumb and Mute and Infants shall be discharged upon Arraignment Which shews that they are to be Indicted of Murther But how shall they be Arraigned when they cannot hear or speak and plead I conceive by the Inspection and Judgment of the Court upon their Arraignment I mean upon the Indictment found by the Grand Jury which plainly shews that the Judges not the Grand Jurors are Judges of the Law and of what shall be Murther So in the case of killing a Thief that attempts to Rob or commit Murther which is justifiable this must judiciously and certainly appear so upon the Tryal that the Court may judge whether there were an intention to Steal or to commit Murther or Rape and not let such a Surmise only That there was no such intention lead the Grand Jury to acquit him when haply there was such intention And the Statute of the 24. of H. 8. saith That the Party so Indicted or Appeal'd of such Offence for killing a Thief or one that intended to Murther by Verdict so found and tryed shall not lose or forfeit Lands or Goods but shall be discharged as one acquit of Felony and none can be acquit of Felony that is not tried for it the doubt being before this Statute Whether he should forfeit his Goods and Chattels as one that kill'd another by Chance-medley So that there was no doubt but such a one was Indicted of Murther before this Act as one
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
Murther for the word conceal in the Statute relates not to the Body of the Infant but the death of it the words being these Shall so conceal the death thereof that it may not come to light that is to the knowledge of one Witness at least whether it were born alive or not but be concealed she shall suffer death as in case of Murther If she can prove by one Witness it was born dead then her hiding or burying it afterwards will not be Evidence against her to take away her Life upon that Statute These two Statutes create no new Offence that was not Felony and Murther before but only take away Clergy in those two cases the one of sudden and desperate stabbing then frequently in use the other of lewd Whores who having committed one sin to avoid their shame and the charge of a Bastard would commit a greater by trusting to their own strength in their Delivery that they might more privately destroy the Infant and yet avoid the danger of the Law because in that case none for the King could prove the Child born alive and therefore it was impossible to Indict and Convict her at the common Law for Murther although really and in truth it were so This Statute makes the Supposition good for the King to the Grand Jury and Jury of Life and Death and to the Judgment of the Judge in point of Law that the Child supposed to be murthered was born alive and by her murthered in regard she being a lewd woman and contrary to the Custome of honest and innocent women who always desire help in their Labour chuseth to be delivered alone this Statute puts the proof upon her if she will avoid so strong a presumption of Murther to be sure to have one Witness to prove the Child was born dead It being likewise strongly presumed that a woman without help of some other cannot be delivered of a Child at full growth dead in the Womb. Two remarkable Cases I have known in my time upon the said Statute of 1 Jac. in Oxfordshire Circuit the one in Mr. Justice Jones his time a Learned Judge that went Sixteen years together that Circuit where the Case was A cunning desperate Fellow having an intention to stab another person and yet to avoid coming within the danger of that Statute had to that purpose provided himself of a Dagger naked in his Pocket he being never known to wear any before came into an Alehouse where the party was he intended to stab and at first coming used very friendly Language unto him but afterwards all the provoking Language he could to make the other strike him which the other no sooner held up his stick to have done but he stabb'd him into the Body with his Dagger whereof he dyed No malice could be proved yet so much of his intention by his preparation and circumstances appearing to design the stabbing of the other that it was adjudged to be within the meaning though not within the Letter of the Statute the Lord Chief Baron Davenport being the other Judge of that Circuit and he was denyed his Clergy and after Judgment was Executed It being then observed by the Judges That immediately after the making of that Statute many desperate Fellows that could read as Clarks to those they had a mind to quarrel withal would use all means to make them strike first and then suddenly stab them and by this way avoid the said Statute and become guilty only of a Manslaughter at Common Law and so receive the benefit of Clergy which the Statute takes away The other Case was in the same Circuit very lately before Mr. Justice Windham at the Assizes at Worcester a little before his death Where a Father correcting his Son for some undutifulness he conceived in him having a Knife in his hand being eating his dinner struck his Son over the back with his knife and gave him a stab whereof he died The Judge apprehended this Offence to be within the Statute notwithstanding that Exception in the Statute of a Father correcting or chastising his Child or Servant in regard it was an unreasonable way and means of correction whereupon he reprieved the Father for some short time and advised with the rest of the Judges at Serjeants Inn and after he had their Opinions that it was within the Statute he forthwith sent down a Warrant to the Sheriff to do Execution having received Judgment of Death at the Assizes and yet the words of the said Act of Parliament are although his Son or Servant dye of such correction he shall not be within the said Act Observe here how necessary it is That all the circumstances that can be in an offence of blood be put into an Indictment and be so found by the Grand Jury as it is advised by the King's Counsel where there is innocent blood shed by the party indicted that every part and circumstance of the Fact with all its aggravations may come to be considered and weighed by the Court which otherwise cannot be as in this Case of the Father killing his Son if the Indictment had not been drawn upon the Statute but at Common Law in regard of that Exception in the Statute as the Grand Jury then would have had it the party had been capable of Clergy and so might have escaped that Judgment of Death If such difficulties appear to the Learned Judges upon due consideration of the Law and of all circumstances in cases of blood how much more will it prove difficult to Grand Jurors and how little reason have they to expunge alter and obliterate circumstances of aggravation in such an Indictment upon hearing only of one side as they please and so prevent the Judgment of the Court therein taking from them the power even to examine such a circumstance as may if truly stated and examined rule the whole Case as before is observed In all the Offences formerly mentioned where Clergy is taken away by those Statutes there is no new offence of Felony or Murther made that was not so before the making of those Laws as might be instanced in Murther Robbery Burglary Sacriledge Cutting of Purses Stealing of Horses Rape and the like but only Clergy taken away from the Offender which is no more but the abusive bloody liberty of Clerks in those times restrained as wilful Murther where malice appeared and other mixt and simple Felonies which were then most raging and reigning Offences in the Kingdom and cryed out for a greater Remedy a stricter Law to be made against them as appears by the Preambles of those Statutes that take away Clergy in those Special Cases that were Murther and Felony at the Common Law before from whence I conclude that the Forms of Indictments of Felony or Murther are no way directed to be altered by those Statutes that take away Clergy but are to continue in the same form as they did before at the Common Law And I
Dier 59. g Jurato creditur in Judicio And to say the truth saith the Lord Coke we never read in any Act of Parliament ancient Author Book-case or Record that in Criminal Cases the party accused should not have Witnesses sworn for him and therefore there is not so much as Scintilla Juris against it Cok. 3. Inst fol. 79. Finch 25. Case of presentment and Indictment h In ancient time it was usual to Arraign one taken in the manner without any Appeal or Indictment i Doctor Student lib. 2. cap. Abridgment 6 E. 1. 9. 3 H. 7. c. 1. MURTHER 3 H. 7. c. 1. 3 H. 8. 3 H. 7. 11 H. 7. c. 3. k Coke 3. Inst fol. 26. 1. Inst Sect. 194. Fortescue c. 26. 72. Stamford l. 2. fol. 90. l The Judges did advise in drawing the Indictment against Leak 4 Jac. Coke 3. Inst Tit. Treason fol. 16. m Bracton 's Order in le Suspicion ou Endictments del Felons lib. 3. cap. 22. paragr 1. fol. 143. Stamf. fol. 97. v. Mackally's Case li. 9. fo 67. n Murther is a wilful killing of a man upon malice forethought but this must either be expressed in proof or implied by Law it seemeth to come of the Saxon word Mordren which so signifieth and Mordridus is the Murtherer even to this day amongst them in Saxony from whence we have most of our words Or it may be derived of Mort est dire as Mors dira Terms of the Law title Murther fol. 207. o Si sit aliquis qui mulitrem pregnantem percusserit si puerperium non formatum vil animatum fuerit maximè si animatum fecit homicid Stamf. fol. 12. In this fol. you shall find Justice Stamford using the words homicid murdrum as signifying the same v. Stamf. fol. 21. c. 13. Coke li. 9. fo 67. 6. in Mackally's Case 3. Inst fol. 57. 3 Inst fol. 56. 22 Ed. 3. Coron 263. p Murther is interpretative in the Law and not to be left to Grand Jurors opinions q Aliquando vero clanculum nemine vidente ita ut sciri non possit quid sit actum hujusmodi homicidium dici poterit Murdrum Stamf. 6. 1. fol. 12. Hales Petty Case in his Comment Terms of the Law Felony 160. fol. 4 Ed. 1. 2 Ed. 6. c. 24. 4 H. 7. c. 13. r When Clergy began appears not by any Common Law book it takes its root from a Constitution of the Pope that the Priests should not be accused before a Secular Judge Co. Magna Charta 636. It hath been confirmed by divers Parliaments and so favourably used by the temporal Judges that it hath been allowed to all Lay-men that could read which is more than the Common Law requires Stamford fol. 123. The first that mentions this Priviledge at Common Law is Bracton that wrote in the time of King Henry the Third Bracton lib. 3. fol. 123. The next is the Statute of Westm 3 Ed. 1. c. 2. By the Popes Constitutions the Priviledge of Clergy extended to all Offences whatsoever and the Prelates of England by Colour thereof did claim the same as generally vide 9 Ed. 2. Articuli Cleri Yet within this Kingdom Clergy was allowed only in Cases of Murther petty Treason and Felony not in Treason against the King himself 23 H. 8. c. 1. s That is voluntary and of set purpose though it be done upon a sudden occasion for if it be voluntary the Law implieth Malice Coke 3. Inst fol. 62. t Within five years of the time of King Henry the Second there were above a 100 Murthers by Priests and men within Holy Orders u The Exemption of the Clergy taken away by the Laws of Clarendon Graft 1187. Cok. lib. 9. 69. Plow Com. 101 22 H. 8. c. 19. 22 H. 8. c. 14. 25 H. 8. c. 3. 28 H. 8. c. 1. 32 H. 8. c. 3. 1 Ed. 6. c. 12. Poysoning murther although no malice be proved 2 Ed. 6. c. 24. Cok. l. 9. f. 117. 5 Ed. 6. c. 9. This is not much pertinent to this purpose but that it takes away Clergy and relates to several Statutes before mentioned concerning murther 5 Ed. 6. 25 H. 8. c. 3. 1 Ed. 6. c. 12. Cok. l. 11. f. 31. Stat. 2 3 P. M. c. 17. Stat. 4 5 P. M. c. 4. Dier f. 183 186. Cok. I. 11. f. 35. 1 Jac. c. 8. 21 Jac. c. 27. 1 Jac. c. 8. 21 Jac. c. 27. x Note this here the Grand Jury find as it is laid in the Indictment by the Kings Counsel that the Child was born alive although they have not the least Evidence for it and yet I trust they are not forsworn y Sir Wadham Windham Kt. one of the Justices of the Common Pleas. z The name of Murther was not changed but the Law retains it continually for the heinousness of the Crime Stamford fol. 19. If not the name then not the words that make it so 23 H. 8. Stamf. fol. 17. Pl. Coron Tit. Coron Fitz. V. 15 Ed. 2. p. 383. Vid. Tit. Memorat p. 331 350. Hales Petit Case le Com. 261. a. 18 El. Pl. 474. 22 H. 8. c. 14. made perpetual by 32 H. 8. 3. Brook Challenge 217. 33 H. 8. 1 2 Ph. Mar. Hil. Ja. R. Stamford lib. 2. fol. 149. Poulton De Pace fol. 211. 4 Ed. 4. 11. 14 Ed. 4. 7. 6 H. 4. 2. No Forfeiture but of Goods Fit Esch 19. Coke 3 Inst fol. 27. 6 H. 8. c. 6. Stamf. fol. 157. 23 H. 8. c. 13. Every Manslaughter is Felony but not e converso 27 H. 8. c. 25. 1 2 Ph. Mar. c. 13. 23 H. 8. c. 12. Kel fol. 98. 23 H. 8. c. 1. Stamf. fol. ult 6. Coke 3 Inst fol. 18. Stamf. Pl. Cor. 63. 26 Ass p. 52. Coke 3 Inst fol. 53. v. 3 4 Ph. Mar. Justice Dalison 's Rep. Stamf. Pl. Cor. 160. 8 H. 6. c. 29. Stamf. Pl. Cor. 160. 2 H. 5. c. 3. Sr. W. Stamford Kt. one of the Justices of the Common Pleas.
that had kill'd another by Chance-medly must and yet is to be Indicted Chance-medly being Manslaughter at Common Law Sure in all these cases and all other the like cases of Blood it is most prudent and safe for every wise and conscientious Grand Jury-man that is satisfied there is Blood spilt and the life of a reasonable Creature unjustly taken away by such a person charged in the Indictment rather to presume it probable all other Circumstances may be true as they are laid in the Indictment so far as to make an Accusation against a guilty person then that they are not and so to leave it fairly to the Court to judge thereof and themselves free from the imputation of Blood by concealment and thereby put the whole matter with all its circumstances upon a most legal and impartial Tryal many times that appearing upon Tryal that appeared not before And the reason why a Petit Jury or Jury of Life and Death may extenuate an Offence and make it less than the Grand Jury is because hearing of both sides they may inquire of Circumstances which a Grand Jury cannot Besides as the Lord Coke informs that Oracle of the Law An Indictment is no part of the Tryal but an Information or Declaration for the King and the Evidence of Witnesses to a Grand Jury is no part of the Tryal For by Law the Tryal in that case is not by Witnesses but by the Verdict of Twelve men and so a manifest diversity between the Evidence to a Jury and a Tryal by a Jury If the Indictment were part of the Tryal then ought he that is a Noble-man and Lord of Parliament to be Indicted by his Peers for the Tryal of him ought to be by his Peers but the Indictment against a Peer of the Realm is always found by Freeholders and not by Peers The French word Enditer signifies in Law an Accusation found by an Inquest of Twelve or more upon their Oath and the Accusation is called Indictamentum And as the Appeal is ever the Suit of the party so the Indictment is always the Suit of the King and as it were his Declaration as the Appeal is the Declaration of the party Some derive it from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to accuse and as properly may it be called Indictamentum ab indidicando quia aliquid notum facit dicendo he that Accuseth or Appealeth another man or brings his Crime into question indictatus quasi indicatus one that hath his cause shewed out in publick deferre nomen alicujus judicare to Indict is to Accuse or Impeach It signifies in our Common Law as much as accusatio in the Civil Law though it have not the like effect Accusabilis i. e. accusatione aut reprehensione dignus one worthy of Reprehension An Indictment being like the precious Stone of India called Indica which as Pliny notes in rubbing it breaketh forth into a purple sweat So doth an Indictment of Murther which though it seem white and pale in the Grand Jurors hands afterwards by rubbing and pressing hard in Court breaks out into a purple or bloody sweat as my self have very often seen experienced when Grand Jurors have many times made great scruple even to find the Indictment at all what comes from the Grand Jury is more properly called a Presentment For the constant form and words in all Bills are Juratores pro Domino Rege super sacramentum suum praesentant observe they are stiled Juratores pro Domino Rege only nor can they be otherwise for they are to hear none but the Kings Evidence upon his own Declaration And whoever is to advance as the Grand Jurors are but the Interest of one side ought as rationally to be permitted to raise and advance it to the highest pitch that by any reasonable presumption it will bear as the other side have liberty to extenuate it to the lowest degree and mean that art and cunning which in these cases of Blood are seldom wanting can bring it unto the one being upon an Accusation against a criminous person who hath had his hands in Blood and is certainly guilty in truth of something in the crime he is accused of The other only upon his own excuse who can never upon the whole matter excuse himself à toto from the whole Crime of Blood If they are satisfied that it is an Offence against the King's Peace his Crown and Dignity and the life of another person it is enough for them to present the whole matter to the Court as the Court hath directed and advised the Bill to them For every Bill of Indictment that is formally and legally drawn up is presumed to have been seen advised and directed as before is said by the Court and the King's Counsel upon an Information of the Fact taken by them as for the substance of it is meet and fit to be put into such formal and legal terms for the King as it is by the Judges sent out of Court to the Grand Jurors it being a common practice for the Judges according to the matter of Fact to direct upon what Statute and Law and in what manner and form the Indictment shall be drawn and sent to the Grand Jury that if they find only probable matter contained in it of accusation in any kind they may so present it to the Court as their Presentment or Accusation the word Presentment coming from the Latin word Praesentio to smell or scent before praesentire in posterum to have a sense of that which is to come so if they have any sense or smell of Blood in the Indictment it is enough for them to leave it to a further quest of what shall come after the Grand Jurors being like the good Huntsman that observing where the Hare hath lately prickt or the Deer lately struck or hath dropped blood lays in his Hounds and leaves them to make the discovery so indeed should the Grand Jurors do the Jury of Life and Death in Cases of Blood and that the Blood of their fellow Christians And thence likewise the Grand Jurors Presentment is called an Inquisition and themselves Inquisitors from the Latin word Inquiro inquirere quod vulgo dicitur facere Informationem for every Inquisitor is as an Informer a promoter of the Accusation to the Court in the behalf of the King that it may be more judicially enquired into and determined which is much like a Citation of a person into the Ecclesiastical Courts for a publick fame which is either fit to be enquired further into and punished or the party purged or pronounced Innocent or like the Masters of Requests to the King Honourable persons that view all Petitions and Complaints before they be presented to the King and determine what are fit to be presented unto the King and what are fit to be rejected A strong Suspicion and the Fame of the Country may in many cases be Evidence sufficient for a Grand Jury
to find a Bill and here I will leave to the observation of Grand Jurors what I find in Mr. Justice Stamfords Pleas of the Crown and which he himself observeth out of Bracton a very ancient and learned Lawyer as Bracton's order in Cases of Suspicion upon Indictments of Felons de secta Regum The words are these Nunc autem dicendum est de Indictamentis per famam Patriae quum praesumptionem inducunt cui standum est donec indictatus se à tali Suspicione purgaverit ex fama quidem oritur suspicio ex fama Suspicione oritur gravis praesumptio Tamen probationem admittit in contrarium sive purgationem Suspicio quidem multiplex esse potest primo si fama oritur apud bonos graves Item ex facto praecedenti oriatur suspicio cui etiam standum est donec probetur in contrarium c. and so goes on to let us know the several badges and marks of Suspicion advising that those that will take Publick fame for an Evidence take it from those that are of good Fame and not of evil persons as he goes on Non de malevolis maledicis sed providis fide dignis personis non semel sed saepius quia clamor innuit defamatio manifestat Tumultus enim clamor populi quandoque fiunt de multis quae super veritatem non fundantur Ideo vanae voces populi non sunt audiendae ut ne dicatur Jesus crucifigitur Barabas autem liberatur The whole Chapter is well worth the reading And it may not be amiss to observe that the ancient forms of Indictments or Bills began thus Inquiratur pro domino Rege Let it be enquired of for our Soveraign Lord the King as the offence is laid in the Indictment whether the offence be so as is there supposed which is as much as if the Grand Jury should say We judge it fit that it be farther enquired of whether it be truly so indeed as it is here supposed for the Offence as it is laid in the Indictment as it comes from the Grand Jury before it receive a farther trial and enquiry of another Jury is no more but Crimen suppositum impositum an offence supposed and laid to ones charge to answer and this clearly appears by the Record of every Acquittal or Conviction of any that is tried upon an Indictment for the words of the Acquittal or Conviction as they are drawn up in the Record are these viz. Juratores that is to say the Jury of Life and Death dicunt super Sacramentum suum quod praedictus A.B. non est vel est Culpabilis de Felonia Murdro praedict in Indictamento praed specificat ei superius imponit modo forma prout per Indictamentum praed superius versus cum supponitur so that supponitur imponitur supposed and imposed is all that can be inferr'd from the Indictment the Grand Juries Presentment upon hearing of one side being the Supposition and the other Jury upon hearing of both sides the Imposition or Supponitur and that relates to the substance of the Indictment as the Grand Jury suppose it to be the Imponitur and that relates to the modo forma of the Offence and the circumstances of it as it is laid in the Indictment as it is found by the Jury of Life and Death and these Circumstances indeed are the proper enquiry of the Jury of Life and Death upon the hearing of Evidence on both sides as appears clearly by the penning and drawing up of these Records and all this is no more than in every common Declaration at the suit of the Party only this Indictment is as a Declaration upon Oath and must therefore for the satisfaction of those that are sworn contain that which for substance seems to them prima facie to be a probable truth and a transgression of a Law not strictly looking into the matter and form aggravations and circumstances of the Fact as it is laid in the Indictment for those do but attend and usher in the Fact but Grand Jurors are principally to eye and look upon the single Fact and act it self and finding one that hath had his hands in blood and that probably upon a farther Enquiry may become reus a guilty person by killing of another person they are to put their Billa vera unto it although they have no proof at all of the Aggravations and Circumstances that attend the Fact Evidence many times arising out of the parties own mouth against himself upon a strict examination in Court more than the Witnesses against him have proved And it is well observed in the Book called The Terms of the Law upon these two words Billa vera where it is said that Billa vera is the Indorsment of the Grand Jury upon any Presentment or Indictment which they find to be probably true mark these words probably true nor do I take the Adjective Vera in this place to signifie True but meet reason or fit and so it is often used in Terence and by the Grammarians Verum est it is fit so that Billa vera upon the Bill doth not signifie a true Bill that hath nothing but truth in it but a meet or fit Bill for the further enquiry of another Jury which ever succeeds such an Indorsment of Billa vera by a Grand Jury certainly it is upon a great mistake although I confess it is often used in Law-Books and by wise men to call the Presentment of a Grand Jury a Verdict to say that their Indorsing Billa vera or Ignoramus which is all they do is their Verdict there being a great difference between Billa vera and Veredictum which signifies dictum veritatis and even induceth a Conviction for nothing can properly be called a Verdict but where it is given by a Jury after an Issue joyned upon hearing of both sides Veredictum is as it were quoddam Evangelium like a little Gospel of Truth for indeed every Verdict which convicts a man to the loss of Life or Estate ought to be as true as the Gospel the Jurors swear upon for upon the Issue of a Verdict the Lives and Estates of all persons depend And therefore an Attaint lies in Law against those Jurors that give a false Verdict contrary to the truth of their Evidence which is a Villainous Judgment a very great Judgment in Law And this Attaint did never by Law lie or was brought against Grand Jurors for any false Presentment for they do but barely present an offence upon hearing of one side and therefore can be no Verdict as from them the Grand Jury being for number indefinite that being properly called a Verdict from such a Jury where the Law makes a determinate number of twelve or twenty four and no more Besides it is alwaies said in the Record where such a Jury finds a Verdict Juratores super Sacramentum suum dicunt c. But where the Grand Jury present
Principal under the Seals of the Justices before whom such Principal was Convicted or Attainted before such Accessary can be tryed and that shall be sufficient to enable the Justices to try the Accessary in Murther or Felony in another County And although the word Manslaughter be mentioned in this Statute as thus within the year and day after such Murther and Manslaughter committed it is not here mentioned as any Species of Murther but only as the Genus called in this place only Murther and Manslaughter Then comes the Statute of the 5 Ed. 6. and Resolves three several Doubts or Questions moved upon the Statute of the 23 H. 8. c. 1. The first Doubt was Whether Clergy were taken away by that Statute unless the very Felony and Robbery were committed in the very Chamber or Place where the Owner Dweller his Children or Servants should happen to be although they were in some other part of the House The second Doubt was If it were done in the Chamber and the parties there asleep and so not put in fear The third Doubt was Where such Robberies or Felonies are committed in a Booth or Tent in any Fair or Market the Owner Children or Servants being then put in fear whether Clergy should be taken away by that Statute in any of these Cases For the clearing of these three Doubts it was Enacted That if any person be convicted for robbing any in any part of their dwelling House or dwelling Places the Owner his Children or Servants being in any part of the said House or Precincts thereof whether sleeping or waking such Offender shall not be admitted to his Clergy And so he that robs any Tent or Booth in Fair or Market whether the Owner his Wife Children or Servants be sleeping or waking in the same shall lose his Clergy Then comes the Statute made in the 5. of Ed. 6. and takes away Clergy from those That commit Burglary or Robbery in one County and carry the Goods into another County and are there legally convicted This Statute likewise declares the Statute made the 25 H. 8. c. 3. shall stand in force notwithstanding a Clause comprised in the Statute of the 1 Ed. 6. c. 12. which makes void a Clause in the said Statute and takes away the force of it in taking away Clergy from such as commit Robberies and Burglaries in one County and are convicted of the Felony for bringing the stoln Goods into another County For whereas the said Statute of the 1 Ed. 6. c. 12. declares That such as are convicted or attainted of Murther of malice prepensed or of poysoning of malice prepensed or of breaking any Houses by day or by night any person there being put in fear or robbing any person in or near the High-way or for stealing Horses Geldings or Mares or Felonious taking any Goods out of any Parish Church or other Church or Chappel should not have the benefit of Clergy And that in all other Cases of Felony other than such as before are mentioned Clergy should be allowed in like manner as it might have been before the 29 day of April in the first year of King Henry the Eighth by reason of which Article or Clause the said Statute made in the 25 H. 8. which did put such Felons and Burglarors from their Clergy that do such Offence in one County and after are taken with the Goods stoln in another County and there Arraigned and found Guilty was made void to the great boldning and comfort of such Offenders It is by this Act Enacted That the said Act made in the said 25th year touching the putting of such Offenders from their Clergy and every Article Clause and Sentence contained in the same touching Clergy shall from thenceforth touching such Offences stand and be in force Then the Statute of 2 3 of P. M. c. 17. takes away the benefit of Clergy only from Bennet Smith for being Accessary to the Murther of Giles Rufford before the Murther committed and for procuring of the same Afterwards the Statute of the 4 5 of P. M. c. 4. takes away Clergy from every person That shall maliciously command hire or counsel any person or persons to commit any petty Treason wilful Murther Robbery in any dwelling House or Houses Robbery in or near the High-way or wilfully to burn any dwelling House or any part thereof or any Barn having Corn or Grain in the same Here I had thought to have proceeded and to have mentioned in order of time all such Statutes as were made in any King's Reign to take away Clergy in any Case of Felony but that would be too much to assume another Subject than what principally is here intended having made too great a digression already yet not altogether unuseful herein Then the Statute made 1 Jac. c. 8. takes away Clergy from him that shall stab another that hath not first stricken nor hath a weapon drawn if he dye thereof in six months although no malice can be proved except it be done se Defendendo or by misfortune in keeping the peace or correcting his Servant or Child This without all question was Murther by malice implyed before the making of this Statute and such a kind of killing is adjudged Murther at this day that is where one shall wilfully kill another by any weapon without provocation from him in deeds for no provocation in words only will make it Manslaughter or less than Murther And in my judgment it is an Error in practice of this Indictment upon the Statute of Stabbing to leave out the words ex malitia praecogitata in the Indictment For the words of the Statute are although no malice can be proved then sure the meaning of the Statute is as in other cases it shall be implyed And in all Indictments where malice is only implyed and cannot expresly be proved those words ex malitia c. must be put into the Indictment to make it Murther and to take away Clergy and by such words the Indictment will be good both upon the Statute and at Common Law And so are the Indictments made against lewd Women that kill their bastard children upon the 21 Jac. cap. 27. although the special matter of the Statute be put into the Indictment viz. That it is a bastard Child and born of her body alive yet the words ex malitia praecogitata are always put into the Indictment which malice the Law implies although none can prove the child born alive and none can be presumed to bear malice to a dead child And haply it might be born dead or dye after it was born against the will of the Mother of her Throwes and Strivings to be delivered without help It is not the burying of the Child or hiding of it that makes it Murther upon the Statute as some have conceived for if the Child be found dead in Bed by her side or in her bosome yet it is