humane Institution are in Scripture called the Judgments of God who is the God of truth Yet further if any benefit to the King could be imagined by making the Evidence to the Grand Jury publick it could not come in competition with the Law expressed in their Oath which by constant uninterrupted usage for so many Ages hath obtained the force of Law Bracton and Britton in their several Generations bear Witness that it was then practised and greater proof of it need not be sought than the Disputes that appears by the Law-Books to have been amongst the ancient Lawyers whether it was Treason or Felony for a Grand Jury to discover either who was indicted or what Evidence was given them The Trust of the Grand Juries was thought so sacred in those Ages and their secrecy of so great concern to the Kingdom that whosoever should break their Oath therein was by all thought worthy to die only some would have had them suffer as Traitors others as Felons Co. Instit 3d part p. 107. Rulls Indic 771. And at this day it is held to be a high Misprision punishable by Fine and Impoverishment The Law then having appointed the Evidence to be given to Grand Juries in secret the King cannot desire to have it made publick He can do no wrong saith the old Maxime that is he can do nothing against the Law nor is any thing to be judged for his benefit that is not warranted by Law His Will Commands and desires are therein no otherwise to be known He cannot change the legal Method or manner of enquiring by Juries nor vary in any particular case from the customary and general forms of judicial proceedings he can neither abridge nor enlarge the power of Juries no more than he can lessen the legal Power of the Sheriffs or Judges or by special Directions order the one how they shall execute Writs and the other how they shall give Judgments though these made by himself 'T is criminal no doubt for any to say that the King desires a Court of Justice or a Jury to vary from the direction of the Law and they ought not to be believed therein If Letters Writs or other Commands should come to the Judges for that purpose they are bound by their Oaths not to regard them but to hold them for null the Statutes of 2 E. 3.8 and 20 E. 3.1 are express That if any Writs or Commandments come to the Justices in disturbance of the Law or the Execution of the same or of right to the parties they shall proceed as if no such Letters Writs or Commands were come to them And the Substance of these and other Statutes is inserted into the Oath taken by every Judge and if they be under the most solemn and sacred Tye in the Execution of Justice to hold for nothing or none the Commands of the King under the great Seal surely the Word or Desire of an Attorney General in the like case ought to be less than nothing Besides they are strangely mistaken who think the King can have an Interest different from or contrary unto that of the Kingdom in the prosecution of Accused Persons His Concernments are involved in those of his People and he can have none distinct from them He is the Head of the Body Politick and the Legal course of doing Justice is like the orderly Circulation of the Blood in the Natural Bodies by which both Head and Body are equally preserved and both perish by the interruption of it The King is obliged to the utmost of his Power to maintain the Law and Justice in its due course by his Coronation Oath and the Trust thereby reposed in him In former Ages he was conjured not to take the Crown unless he resolved punctually to observe it Brom. p. 1159 Mat. Paris p. 153. Hoved. p. 374. Baker p. 68. Bromton others speaking of the Coronation of Richard the First deliver it thus That having first taken the Oath Deinde indutus Mantello ductus est ad Altare conjuratus ab Archiepiscopo prohibitus ex parte Dei ne hunc Honorem sibi assumat nisi in mente habeat tenere Sacramenta Vota quae superius fecit Et Ipse respondit se per Dei auxilium omnia supradicta observaturum bona fide Deinde cepit Coronam de Altari tradidit eam Archiepiscopo qui posuit eam super caput Regis sic Coronatus Rex ductus est ad sedem suam Afterward cloathed with the Royal Robe he is led to the Altar and conjured by the Archbishop and forbid in the Name of God not to assume that Honour unless he intended to keep the Oaths and Vows he had before made and he answered by God's help he would saithfully observe all the Premises And then he took the Crown from off the Altar and delivered it to the Archbishop who put it upon the King's head and the King thus Crowned is led unto his Seat The violation of which Trust cannot but be as well a wound unto their Consciences as bring great prejudice upon their Persons and Affairs The Common Law that exacts this doth so far provide for Princes That having their minds free from cares of preserving themselves they may rest assured that no Acts Words or Designs that may bring them into danger can be concealed from the many hundreds of men who by the Law are appointed in all parts of the Kingdom watchfully to take care of the King and are so far concerned in his safety that they can hope no longer to enjoy their own Lives and Fortunes in peace than they can preserve him and the good Order which according to the Laws he is to uphold It is the Joynt Interest of King and People that the Antient Rules of doing Justice be held sacred and inviolable and they are equally concerned in causing strict Inquiries to be made into all Evidences given against suspected or accused Persons that the Truth may be discovered and such as dare to disturb the Publick Peace by breaking the Laws may be brought to punishment And the whole course of Judicial Proceedings in Criminal Causes shews that the People is therein equally concerned with the King whose Name is used This is the ground of that distinction which Sir Ed. Coke makes between the Proceedings in Pleas of the Crown and Actions for wrongs done to the King himself Co. 3d. Inst pag. 136. In Pleas of the Crown or other common offences nusances c. principally concerning others or the Publick there the King by Law must be apprised by Indictment Presentment or other matter of Record but the King may have an Action for such wrong as is done to himself and whereof none other can have an Action but the King without being apprised by Indictment Presentment or other matter of Record as a Quare impedit Quare incumbravit a Writ of Attaint of Debt Detinue of Ward Escheat Scire fac pur repealer patent
and destroy the Innocent This is to turn a legal King into a Nimrod a Hunter of Men This is not to act the part of a Father or a Shepherd who is ready to lay down his Life for his Sheep but such as the Psalmist complains of who eat up the People as if they eat Bread Jezebel did perhaps applaud her own Wit and think she had done a great Service to the King by finding out men of Belial Judges and Witnesses to bring Naboth to be stoned but that unregarded Blood was a Canker or the Plague of Leprosie in his Throne and Family which could not be cured but by its overthrow and extinction But if the Attorney General cannot serve the King by abusing Juries and subverting the Innocent he can as little gain an advantage to himself by falsifying his Oath by the true meaning whereof he is to prosecute Justice impartially and the Eternal Divine Law would annul any Oath or Promise that he should have taken to the contrary even though his Office had obliged him unto it The like Obligation lies upon Jurors not to suffer themselves to be deluded or persuaded that the Judges Kings Council or any others can dispense with that Oath or any part of it which they have taken before God unto the whole Nation nor to think that they can swerve from the Rules set by the Law without a damnable breach of it The power of relating or dissolving Conscientious Obligations acknowledged in the Pope makes a great part of the Roman Superstition and that grand Impostor could never corrupt Kingdoms and Nations to their destruction and the Establishment of his Tyranny until he had brought them to believe he could dispense with Oaths taken by Kings unto their Subjects and by Subjects to their Kings nor impose so extravagant an Errour upon either until he had persuaded them he was in the place of God It is hard to say how the Judges or Kings Council can have the same Power unless it be upon the same Title but we may be sure they may as well dispense with the whole Oath as any part of it and can have no pretence unto either unless they have the Keys of Heaven and Hell in their keeping It is in vain to say the King as any other man may remit the Oath taken unto and for himself He is not a party for himself but in the behalf of his People and cannot dispose of their Concernments without their Consent which is given only in Parliament The Kings Council ought to remember they are in criminal Cases of Council unto every man in the Kingdom It is no ways referred unto the Direction of the Judges or unto them whether that secrecy enjoined by Law be profitable unto the King or Kingdom They must take the Law as it is and render Obedience unto it until it be altered by the Power that made it To this end the Judges by Acts of Parliament viz. 18 Ed. 3. cap. 8. and 20 Ed. 3. Cap. 1. are sworn to serve the People Ye shall serve our Lord the King and his People in the Office of Justice c Ye shall deny to no man common Right by the Kings Letters nor no other mans nor for no other cause and in default thereof in any point they are to forfeit their Bodies Lands and Goods This proves them to be the Peoples Servants as well as the Kings Further by the express words of the Commissions of Oyer and Terminer they are required to assist every man that suffers injury and make diligent inquisition after all manner of falshoods deceits offences and wrongs done to any man and thereupon to do Justice according to the Law so that in the whole proceedings in order unto Tryal and in the Tryals themselves the Thing principally intended which several persons are severally in their capacities obliged to pursue is the discovery of Truth The witnesses are to depose the Truth the whole Truth and Nothing but the Truth Thereupon the Council for the King are to prosecute The Grand Jury to present and the Petit Jury to try These are several Offices but all to the same End T is not the Prisoner but the Crime that is to be pursued This primarily the Offender but by consequence and therefore such Courses must be taken as may discover that and not such as may ensnare him When the Offence is found the impartial Letter of the Law gives the Doom and the Judges have no share in it but the pronouncing of it Till then the Judges are only to preside and take Care that every man else who is employed in this necessary Affair do his duty according to Law So that upon result of the whole transaction impartial Justice may be done Either to the Acquittal or condemnation of the Prisoner Hereby it is manifest why the Judges are obliged by Oath To Serve the People as well as the King And by Commission To Serve every One that Suffers Injuries As they are to See that Right be done to the King His Injur'd Subjects in discovering of the Delinquent So they are to be of Council with the Prisoner whom the Law supposeth may be ignorant as well as innocent and therefore has provided that the Court shall be of Council for him and as well inform him of what Legal advantages the Law allows him as to resolve any point of Law when he shall propose it to them And it seems to be upon the presumption of this steady impartiality in the Judges thus obliged by all that is held Sacred before God and man to be unbyassed that the Prisoner hath no Council for if the Court faithfully perform their duty the Accused can have no wrong or hardship and therefore needs no Adviser Now suppose a man perfectly innocent and in some measure knowing in the Law should be accused of Treason or Felony If the Judges shall deny unto the Grand Jury the Liberty of examining any witnesses except in open Court where nothing shall be offered that may help to clear the Prisoner but every Thing aggravated that gives colour for the Accusation such Persons only produced as the Kings Council or the prosecutors shall think fit to call of whose Credit also the Jury must not inquire but shall be controll'd and brow-beaten in asking Questions of such unknown witnesses for their own Satisfaction if they have any Tendency to discover the Infamy of these witnesses or the Falshood of their Testimony How can Innocence secure any Man from being arraigned And if the Oath of the Judges should be as much forgotten in the further Proceedings upon the Trâ—al where in Cases of Treason the Prisoner shall have all the Kings Council commonly not the most unlearned prepared with studied speeches and arguments to make him black and odious and to Strein all his words and to alledge them for Instances of his guilt If then all his private Papers and Notes to help his memory in his Plea and defence shall
THE SECURITY OF English-Mens Lives OR THE TRUST POWER and DUTY OF THE Grand Iurys OF ENGLAND Explained according to the Fundamentals of the English Government and the Declarations of the same made in Parliament by many Statutes Published for the Prevention of Popish Designs against the Lives of many Protestant Lords and Commoners who stand firm to the Religion and ancient Government of England LONDON Printed for T. Mitchel 1681. THE Principal Ends of all Civil Government and of Humane Society were the Security of Mens Lives Liberties and Properties mutual Assistance and Help each unto other and Provision for their common Benefit and Advantage and wherethe Fundamental Laws and Constitution of any Government have been wisely adapted unto those Ends such Countries ane Kingdoms have increased in Virtue Prowess Wealth and Happiness whil'st others through the want of such excellent Constitutions or neglect of preserving them have been a Prey to the Pride Lust and Cruelty of the most Potent and the People have had no Assurance of Estates Liberties or Lives but from their Grace and Pleasure They have been many times forced to welterin each others Blood in their Masters quarrel for Dominion and at best they 〈◊〉 â—erved like Beasts of Burden and 〈…〉 ntinual base subserviency to their 〈…〉 ers Vices have lost all sense of 〈◊〉 Religion Virtue and Manhood Our Ancestors have been famous in â—â—eir Generations for Wisdom Piety 〈…〉 d courage in forming and preserving â— Body of Laws to secure themselves and their Posterities from Slavery and Oppression and to maintain their Native Freedoms to be subject only to the Laws made by their own Consent in their general Assemblies and to be put in Execution chiefly by themselves their Officers and Assistants to be guarded and defended from all Violence and Force by their own Arms kept in their own hands and used at their own charge under their Princes Conduct entrusting nevertheless an ample Power to their Kings and other Magistrates that they may may do all the Good and enjoy all the Happiness that the largest Soul of man can honestly wish and carefully providing such means of correcting and punishing their Ministers and Councillors if they transgressed the Laws that they might not dare to abuse or oppress the People or design against their Freedom or Welfare This Body of Laws our Ancestors always esteemed the best Inheritance they could leave to their Posterities well knowing that these were the sacred Fence of their Lives Liberties and Estates and an unquestionable Title whereby they might call what they had their own or say they were their own Men The inestimable value of this Inheritance moved our Progenitors with great resolution bravely from Age to Age to defend it and it now falls to our Lot to preserve it against the Dark Contrivances of a Popish Faction who would by Frauds Sham-Plots and Infamous Perjuries deprive us of our Birth-rights and turn the points of our Swords our Laws into our own Bowels they have impudently scandalized our Parliaments with Designs to overturn the Monarchy because they would have excluded a Popish Successor and provided for the Security of the Religion and Lives of all Protestants They have caused Lords and Commoners to be for a long time kept in Prisons and suborned Witnesses to swear matters of Treason against them endeavouring thereby not only to cut off some who had eminently appeared in Parliament for our antient Laws but through them to blast the Repute of Parliaments themselves and to lessen the Peoples Confidence in those great Bulwarks of their Religion and Government The present purpose is to shew how well our Worthy fore-Fathers have provided in our Law for the safety of our Lives not only against all attempts of open Violence by the severe punishment of Robbers Murtherers and the like but the secret poysonous Arrows that flie in the dark to destroy the Innocent by false Accusation and Perjuries Our Law-makers foresaw both their dangers from the Malice and Passion that might cause some of private condition to accuse others falsly in the Courts of Justice and the great hazards of Worthy and Eminent Mens Lives from the Malice Emulation and Ill Designs of corrupt Ministers of State or otherwise potent who might commit the most odious of Murders in the form and course of Justice either by corrupting of Judges as dependant upon them for their Honour and great Revenue or by Bribing and Hiring men of depraved Principles and desperate Fortunes to swear falsly against them doubtless they had heard the Scriptures and observed that the great men of the Jews sought out many to swear Treason and Blasphemy against Jesus Chrâ—â—â— They had heard of Ahab's Courtiers and Judges who in the Course aâ—â— Form of Justice by false Witnesses 〈…〉 thered Naboth because he would nosubmit his Properly to an Arbiâ—rary Power Neither were they ignoraâ—â— of the Antient Roman Historâ—es 〈◊〉 the pestilent false Accusers that abounâ—ed in the Reign of some of those Emperours under whom the greatest of crimes was to be virtuous Therefore as became good Legislators they made as prudent Provision as perhaps any Country in the World enjoys for equal and impartial Administration of Justice in all the concerns of the Peoples Lives that every man whether Lord or Commoner might be in safety whilst they lived in due Obedience to the Laws For this purpose it is made a Fundamental in our Government that unless it be by Parliament See Ld Cookes Instit 3d part p. 40. no mans Life shall be touched for any crime whatsoever save by the Judgment of at least 24 men that is 12 or more See Mag. Chart. Cooke 's 2 part of Instit p. 50 51. to find the Bill of Indictment whether he be Peer of the Realm or Commoner and 12 Peers or above if a Lord if not 12 Commoners to give the Judgment upon the general Issue of not guilty joyned of these 24 the first 12 are called the Grand Inquest or the Grand Jury for the extent of their power and in regard that their number must be more than 12 sometimes 23 or 25 never were less than 13 Twelve whereof at least must agree to every Indictment or else 't is no legal Verdict If 11 of 21 or of 13 should agree to find a Bill of Indictment it were no Verdict The other Twelve in Commoners Cases are called the Petit-Jury and their number is ever Twelve but the Jury for a Peer of the Realm may be more in number though of like Authority The Office and Power of these Juries is Judicial they only are the Judges from whose Sentence the Indicted are to expect Life or Death upon their Integrity and Understanding the Lives of all that are brought into Judgment do ultimately depend from their Verdict there lies no Appeal by finding Guilty or not Guilty they do complicately Resolve both Law and Fact As it hath been the Law so it hath allways been the Custom and Practice of
part fol. 33. the same be also void and holden for none for ever See also the Statute of Westm 2d cap. 38. and Articâ—â— super Cortas ch 9. So careful have our Parliaments been that the Power of Grand Inquests might be placed in the hands of good and worthy men that if one man of a Grand Inquest though they be Twenty Three or more should not be Liber Legalis Homo or such as the Law requires and duly returned without denomination to the Sheriff all the Indictments found by such a Grand Jury and the proceedings upon them are void and null So it was adjudged in Scarlet 's case I know too well that the Wisdom and Care of our Ancestors in this Institution of Grand Juries hath not been of late considered as it ought nor the Laws concerning them duly observed nor have the Gentlemen and other men of Estates in the several Counties discerned how insensibly their legal Power and Jurisdiction in their Grand and Petit Juries is decayed and much of the means to preserve their own Lives and Interests taken out of their hands 'T is a wonder that they were not more awakened with the attempt of the late Ed. Ch. Justice K. who would have usurped a Lordly Dictatorian power over the Grand Jury of Somersetshire and commanded them to sind a Bill of Indictment for murther for which they saw no Evidence and upon their refusal he not only threatned the Jury but assumed to himself an Arbitrary Power to sine them Here was a bold Battery made upon the ancient Fence of our Reputations and Lives If that Justice's Will had passed for Law all the Gentlemen of the Grand Juries must have been the basest Vassals to the Judges and have been penally obliged Jurare in Verba Magistri to have sworn to the Directions or Dictates of the Judges But thanks be to God the late long Parliament though filled with Pensioners could not bear such a bold Invasion of the English Liberty but upon the Complaint of one Sir Hugh Windham Foreman of the said Jury and a Member of that Parliament the Commons brought the then Chief Justcie to their Bar to acknowledge his fault whereupon the Prosecution ceased The Trust and Power of Grand Juries is and ought to be accounted amongst the greatest and of most concern next to the Legislative The justice of the whole Kingdom in criminal Cases almost wholly depending upon their Ability and Integrity in the due Execution of their Office Besides the Concernments of all Commoners the Honour Reputation Estates and Lives of all the Nobility of England are so far submitted to their Censure that they may bring them into question for Treason or Felony at their Discretion Their Verdict must be entred upon Record against the greatest Lords and process must legally go out against them thereupon to imprison them if they can be taken or to outlaw them as the Statutes direct and if any Peer of the Realm though innocent should justly fear a Conspiracy against his Life and think fit to withdraw the direction of the Statutes in proceeding to the Outlawry being rightly pursued he could never reverse the Outlawry as the Law now stands save by Pardon or Act of Parliament Hence it appears that in case a Grand Jury should be drawn to Indict a Noble Peer unjustly either by means of their own weakness or partiality or a blind submission to the Direction or Opinion of Judges One such failure of a Jury may occasion the Ruine of any of the best or greatest Families in England I mention this extent of the Grand Juries Power over all the Nobility only to shew their joint Interest and Concern with the Commons of England in this ancient Institution The Grand Juries are trusted to be the principal means of preserving the Peace of the whole Kingdom by the terrour of executing the penal Laws against Offenders by their Wisdom Diligence and Faithfulness in making due Inquiries after all Breaches of the Peace and bringing every one to answer for his crime at the peril of his Life Limb and Estate that every man who lives within the Law may sleep securely in his own House 'T is committed to their Charge and Trust to take care of bringing Capital Offenders to pay their Lives to Justice and lesser Criminals to other punishments according to their several demerits The Courts or Judges or Commissioners of Oyer and Terminer and of Gaol Delivery are to receive only from the Grand Inquest all Capital matters whatsoever to be put in Issue tried and judged before them by the Petit Juries The whole Stream of Justice in such cases either runs freely or is stopped and disturbed as the Grand Inquests do their Duties either faithfully and prudently or neglect or omit them And as one part of their Duty is to Indict Offenders so another part is to protect the Innocent in their Reputations Lives and Interests from false Accusers and malicious Conspirators They are to search out the Truth of such Informations as come before them and to reject the Indictment if it be not sufficiently proved and farther if they have reasonable suspicion of Malice or wicked Designs against any mans Life or Estate by such as offer a Bill of Indictment the Laws of God and of the Kingdom bind them to use all possible means to discover the Villany and if it appear to them whereof they are the legal Judges to be a Conspiracy or malicious Combination against the Accused they are bound by the highest Obligations upon Men and Christians not only to reject such a Bill of Indictment but to Indict forth with all the Conspirators with their Abettors and Associates Doubtless there hath been Pride and Covetousness Malice and desire of Revenge in all Ages from whence have sprung false Accusations and Conspiracies but no Age before us ever hatched such Villanies as our Popish Faction have contrived against our Religion Lives and Liberties No History assords an Example of such Forgeries Perjuries Subornations and Combinations of infamous Wretches as have been lately discovered amongst them to defame Loyal Innocent Protestants and to shed their guiltless Blood in the Form and Course of Justice and to make the Kings most faithful Subjects appear to be the vilest Traitors unto him In this our miserable State Grand Juries are our only Security in as much as our Lives cannot be drawn into jeoperdy by all the malicious crasts of the Devil unless such a number of our honest Country Men shall be satisfied in the truth of the Accusations For prevention of such Plotters of wickedness as now abound was that Statute made in the 42 of E. 3.3 See the Stat. 42 E. 3.3 in these words To eschew the mischiefs and damage done to divers of the Commons by False Accusers which oftentimes have made the Accusations more for Revenge and singular Benefit than for the profit of the King or of his People which accused persons some have been taken and
their going such ought to be their speed to make known the Treason Or if in any case they be otherwise openly flagitious though they be not legally infamous or if they are men of desperate Fortunes so that the temptation of want is manifestly strong upon them and the restraint of Conscience can be supposed to be little or none at all what ever they say is at least to be heard with extraordinary caution if not totally rejected In Scotland such a degree of Poverty S. G. Mackâ—zy Crim. Law lib. 26.3 that a Witness cannot swear himself to be worth Ten Pounds is sufficient to lay him aside wholly in these high Concernments of Criminal Cases And in some other Kingdoms to be a loose liver is an Objection of the same force against any produced for Witnesses And for the better discovery of the Truth of any fact in question the Credit of the Witnesses and the value of the Testimonies it is the Duty of the Grand Inquest to be well informed concerning the Parties indicted of their usual Residence their Estates and manner of living their Companions and Friends with whom they are accustomed to converse such knowledge being necessary to make a good judgment upon most accusations but most of all in suspitions or Indictments of secret Treasons or Treasonable Words where the accusers can be of no credit if it be altogether incredible that such things as they testifie should come to their knowledge Sometimes the quality of the accused person may set him at such a distance from the Witnesses that he cannot be supposed to have conversed with them familiarly if his Wisdom and Conduct has been always such that it is not credible he would trust men so inconsiderable or meer strangers to him and such as are wholly uncapable to assist in the Design which they pretend to discover Can the Grand Inquest believe such Testimony to be of any value Or can they avoid suspecting Malice Combination and Subornation in such a case or can they shew themselves to be just and conscientious in their Duty if they do not suspend their Verdict until further Enquiry and write Ignoramus upon the Bill It is undoubtedly Law which we find reported in Stiles Stiles Repor 11. That Though there be Witnesses who prove the Bill yet the Grand Inquest is not bound to find it if they see cause to the contrary Now to make their Enquiry more instrumental and advantageous to the Execution of Justice they are enjoined by their Oath to keep secret the King's Counsel their fellows and their own Perhaps 't is not sufficiently understood or considered what duty is enjoyned to every man of a Grand Inquest by this clause of their Oath being seldom if ever explained to them in the general charge of the Judges at Sessions or Assises But it is necessary that they should apprehend what Counsel of the King is trusted with them Certainly there is or ought to be much more of it communicated to them than is commonly thought and in things of the greatest consequence To them ought to be committed in the several Counties where any Prosecutions are begun the first Informations and suspitions of all Treasons Murders Felonies Conspiracies and other Crimes which may subvert the Government endanger or hurt the King or destroy the Lives or Estates of the innocent People or any way disquiet or disturb the common Peace Our Law intends the Councils of the King to be continually upon the protection and security of the People and prevention of all their mischiefs and dangers by wicked lawless and injurious men And in order thereunto to be advising how to right his wronged Subjects in general if the publick safety be hazarded by Treasons of any kind or their Relations snatcht from them by Murderers or any way destroyed by malicious Conspirators in form of Law or their Estates taken away by Robbery and Thieves or the Peace broken And for these ends to bring to exemplary Justice all offenders to deterr others from the like Wickedness And until these Counsels of the King come to the Grand Jury he can bring no such Criminals to judgment or to answer to the Accusations and Suggestions against them Hence it becomes unavoidably necessary to reveal to the Grand Juries all that hath been discovered to the King or any of his Ministers Judges or Justices concerning any Treasons or other Offences whereof any man is accused And where suspicion hath caused any to be imprisoned all the grounds of their suspitions ought to be opened concerning the Principals and the Accessories as well before as after the fact all the circumstances and presumptions that may induce a belief of their Guilt and all notices whatsoever which may enable the Jury to make a more exact and effectual Enquiry and to present the whole Truth They themselves will not only be offenders against God by reason of their Oath but subject to legal punishments if they knowingly conceal any Criminals and leave them unpresented and none can be innocent who shall conceal from them any thing that may help and assist them in their Duty The first notices of Crimes or suspicions of the Criminals by whomsoever brought in and the intentions of searching them out and prosecuting them legally are called the King's Counsel because the principal care of executing Justice is entrusted to him and they are to be prosecuted at his Suit and in his name and such proceedings are called Pleas of the Crown From hence may be easily concluded that the Kings Counsel which by the Oath of the Grand Inquest is to be kept secret includeth all the persons offered to them to be indicted and all the matters brought in Evidence before them all circumstances whatsoever whereof they are informed which may any way conduce to the discovery of Offences all intimations given them of Abettors and Encouragers of Treasons Felonies or Perjuries and Conspiracies or of the Receivers Harbourers Nourishers and Concealers of such Criminals Likewise the Oath which enjoins the Counsel of their Fellows and their own to be kept implies that they shall not reveal any of their personal knowledge concerning Offences or Offenders nor their intentions to indict any man thereupon nor any of the Proposals and Advices amongst them of ways to enquire into the truth of any matter before them either about the Crimes themselves or the accusers and Witnesses or the party accused nor the debates thereupon amongst themselves nor the diversity of opinionins any case before them Certainly this Duty of secresie concerning the Kings Counsel was imposed upon the Grand Inquest with great reason in order to the publick good It was intended that they should have all the advantages which the several cases will afford to make effectual Enquiries after Criminals to offer them to Justice If packs of Thieves private Murderers secret Traitors or Conspirators and Suborners can get Intelligence of all that is known of their Villanies all the parties concerned may
be taken from him by the Gaoler or the Court and given to his Prosecutors And all Advice Assistance from Councils or friends and his nearest Relations shall be denied him none suffered by word or writing to inform him of the indifferency or honesty or the Partiality or malice of the Pannels returned whom the Law allows him to Challenge or refuse either peremptorily or for good Reasons offered should he be thus deprived of all the good provisions of the Law for his safety To what Frauds Perjuries Subornations is not he and every man Exposed who may be accused What Deceits may there not be put upon Juries and what Probability is there of finding security in Innocence What an admirable Execution would this be of their Commission To make diligent Inquisition after all manner of Falshoods Deceipts wrongs and Frauds and thereupon to do Justice according to Law When at the same Time if so Managed a Method would be introduced of ruining and destroying any Man in the form of Justice Such practices would be the highest dishonour to the King imaginable whose name is used and so far Misrepresent the Kingly Office as to make that appear to have been Erected to vex and destroy the People which was intended and ordained to help and preserve them The Law so far abhors such proceedings that it intends that every Man should be strictly bound to be Exactly just in their several Imployments relating to the Execution of Justice The Sergeant of the Kings Council Sir George Jeffrys among the rest who prosecute in the King's name and are consulted in the forming bills of Indictment and advice about the witnesses and their Testimonies against the Accused These if they would remember it when they are made Sergeants take an Oath Cokes 2d Institutes Pag. 214. as well truly to serve the People whereof the party accused is one as the King himself and to minister the Kings matters duely and truely after the course of the Law to their Cunning Not to use their Cunning Craft to hide the Truth and destroy the accused if they can They are also obliged by the Statute of Westm 1. Cap. 29. To put no manner of Deceit or Collusion upon the Kings Court nor secretly to consent to any such Tricks as may abuse or beguile the Court or the party be it in Causes Civil or Criminal And it is ordained that if any of them be convicted of such practices he shall be imprisoned for a year never be heard to plead again in any Court and if the Mischievous consequence of their Treacheries be great they are Subject to further and greater punishments Our Auntient Law Book called the Mirror of Justice Cap. 2. Sect. 4. says That every Sergeant Pleader is chargeable by his Oath not to maintain or defend any wrong or Falshood to his Knowledge but shall leave his Client when he shall perceive the wrong intended by him Also that he shall not move or proffer any false Testimony nor consent to any Lyes Deceits or Corruptions whatsoever in his pleadings As a further Security unto the People against all Attempts upon their Laws Exemplary Justice hath been done in several Ages upon such Judges and Justiciaries as through Corruption Submission unto unjust Commands or any other Sinister consideration have dared to swerve from them The punishments of these wicked Men remain upon Record as Monuments of their Infamy to be a Terror unto all that shall succeed them In the Reign of the Saxons the most notable Example was given by King Alfred who caus'd above forty Judges to be hanged in a Short Space for several wrongs done to the People as is related in the Mirror of Justice Some of them suffered for imposing upon Juries and forcing them to give Verdicts according to their will And one as it seems had taken the Considence to examine a Jury that he might find which of them would Submit to his will and Setting aside him who would nor condemned a Man upon the Verdict of Eleven Since the Coming in of the Normans our Parliaments have not been less severe against such Judges as have suffered the course of Justice to be perverted or the Rights and Liberties of the People to be invaded In the time of Edward the 1st Anno 1289. The Parliament finding That all the Judges except Two had swerv'd from their duty condemned them to several punishments according unto their Crimes As Banishment Perpetual Imprisonment Ex Chron. Anno 10 Ed. 1. or the Loss of all their Estates c. Their Particular Offences are specified in a speech made by the Arch-Bishop of Canterbury in Parliament They had broken Magna Charta Incited the King against his People Violated the Laws under pretence of expounding them And impudently presumed to prefer their own Councils to the King before the Advices of Parliament as appears by the speech c. Hereunto annext The like was done in Ed. the 2d Time when Hugh De Spencer was charged for having prevailed with the King to break his Oath to the People in doing Things against the Law by his own Authority In Edward the 3d. Time Judge Thorpe was hanged for having in the like manner brought the King to break his Oath Dan. History p. 260 261. And the happy Reign of that great King affords many Instances of the like nature amongst which the punishment of Sr. Henry Green and Sr. William Skipwith deserve to be observed and put into an Equal rank with those of his brave and victorious Grand-father In Richard the Second's Time See all the English Histories of Walsingham Fabian Speed c. in the 11 and 21 years of Richard the 2d Eleven of the Judges forgetting the dreadful Punishments of their Predecessors subscribed malicious Indictments against Law and gave false Interpretations of our Antient Laws to the King thereby to bring many of his most Eminent worthiest Subjects to suffer as Traytors at his Will Subjected the Authority and very being of Parliaments to his absolute pleasure And made him believe that all the Laws lay in his own breast Hereupon sentence of death passed upon them and tho upon their repentance and confessing they had been swayed by fear and threatnings from the King Two only were Executed all the others were for ever banished as unworthy to enjoy the benefit of that Law which they had so perfidiously and basely betrayed It were an Endless work to recite all the Examples of this kind that are found in our Histories and Records but that of Empson and Dudley must not be omitted They had craftily contrived to abolish Grand Juries and to draw the Lives and Estates of the People into question without Indictments by them and by surprise and other wicked practices they gained an Act of Parliament for their countenance Hereupon false Accusations followed without number Oppression and Injustice broke forth like a Flood And to gain the Kings Favor they filled his Coffers
The Indictments against them mentioned in Anderson's Reports Pa. 156. 157. are worth reading whereby they are charged with Treason for Subverting the Laws and Customs of the Land in their proceedings without Grand Juries and procuring the murmuring hatred of the People against the King to the great danger of him the Kingdom Nothing could satisfy the Kingdom tho the King was dead whom they had flattered and served but such Justice done upon them and many of their Instruments and Officers as may for ever make the Ears of Judges to tingle And it is not to be forgotten that the Judges in Queen Eliz. time in the Case of R. Cavendish in Anderson's Reports P. 152 and 155. were as they told the Queen and her Councellors by the punishment of former Judges especially of Empson and Dudley deterred from obeying her illegal Commands The Queen had sent several Letters under her Signet Great Men pressed them to obey her Patent under the Great Seal and the Reasons of their disobedience being required They answered That the Queen her self and the Judges also had taken an Oath to keep the Laws And if they should obey her Commands the Laws would not warrant them and they should therein break their Oath to the Offence of God and their Country and the Common-wealth wherein they were born And say they if we had no fear of God yet the Examples and punishments of others before us who did offend the Laws do remember and recal us from the like Offences Whosoever being in the like places may design or be put upon the like practices will do well to consider these Examples and not to think that he who obliquely Endeavors to render Grand Jurys useless is less Criminal than he that would absolutely abolish them That which doth not act according to its Institution is as if it were not in being And whoever doth without prejudice consider this matter will see that it is not less pernicious to deny Juries the use of those Methods of discovering Truth which the Law hath appointed and so by degrees turn them into a meer matter of form than openly and avowedly to destroy them Surely such a gradual Method of destroying our Native Right is the most dangerous in its consequence The safety which our Fore-fathers for many hundreds of years enjoyed under this part of the Law especially and have transmitted to us is so apparent to the meanest Capacity that whoever shall go about to take it away or give it up is like to meet with the fate of Ishmael to have every mans hand against him because his is against every Man Artifices of this Kind will ruine us more silently and so with less opposition and yet as certainly as the other more moved oppression This only is the difference that one way we should be slaves immediately and the other insensibly But with this further disadvantage too that our slavery should be the more unavoydable and the faster rivited upon us because it would be under colour of Law which Practice in Time would obtain Few men at first see the danger of little changes in Fundamentals and those who design them usually act with so much craft as besides the giving specious Reasons they take great Care that the true Reason shall not appear Every design therefore of changing the Constitution ought to be most warily observed and timely opposed Nor is it only the Interest of the People that such Fundamentals should be duly guarded for whose benefit they were at first so carefully layed and whom the Judges are sworn to serve but of the King too for whose sake those pretend to act who would subvert them Our Kings as well as Judges are sworn to maintain the Laws They have themselves in several Statutes required the Judges at their peril to administer Equal Justice to every Man notwithstanding any Letters or Commands c. even from themselves to the contrary And when any failure hath been the greatest and most powerful of them have ever been the readiest to give Redress It appears by the preface to the Statutes of 20th Ed. 3. that the Judicial proceedings had been perverted That Letters writs and Commands had been sent from the King and great Men to the Justices and that Persons belonging to the Court of the King the Queen the Prince of Wales had maintained abetted Quarrels c. Whereby the Laws had been violated and many wrongs done But the King was so far from justifying his own Letters or those illegal practices That the preamble of those Statutes saith they were made for the relief of the People in their sufferings by them That brave King in the height of his glory and vigor of his Age chose rather to confess his Error than to continue in it as is Evident by his own words Edward by the Grace of God c. Because by divers Complaints made unto us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept and Execution of the same disturbed many times by maintenances and procurements as well in the Court as the Country We greatly moved of Conscience in this matter and for this Cause desiring as much for the pleasure of God and ease and quietness of our Subjects as to save our Conscience and for to save and keep our said Oath by the Assent c. Enact That Judges shall do Justice notwithstanding Writs Letters or Commands from himself c. and that none of the King's House or belonging to the King Queen or Prince of wales do maintain Quarrells c. King James in his Speech to the Judges in the Starchamber Anno. 1616. told them That He had after many years resolved to renew his Oath made at his Coronation concerning Justice and the promise therein contained for maintaining the Law of the Land And in the next Page save one says I was sworn to maintain the Law of the Land and therefore had been perjured if I had broken it God is my Judge I never intended it And His Majesty that now is hath made frequent Declarations and Protestations of his being far from all thoughts of designing an Arbitrary Government and that the Nation might be confident He would rule by Law Now if after all this any Officer of the Kings should pretend Instructions from his Master to demand so material an Alteration of proceedings in the highest Cases against Law as are above mentioned And the Court who are required to slight and reject the most solemn Commands under the Great Seal if contrary to Law should upon a Verbal Intimation allow of such a Demand and so break in upon this Bulwark of out Liberties which the Law has erected Might it not give too just an occasion to suspect that all the legal securities of our Lives and Properties are unable to protect us And may not such fears rob the King of his greatest Treasure and Strength the Peoples hearts when they
consult together how to hide their crimes and prevent such further Enquiries as can be made after them they may form Sham-Stories by agreement that may have appearance of truth to mislead and delude the Jury in their Examination and avoid contradicting each other they may remove or conceal all such things as might occasion a fuller Discovery of their Crimes or become circumstantial Evidences against any of their Associates if one or more of them be known or taken or is to be indicted There hath been Confederates in high Crimes who have secured themselves from the Justice done upon some of their Companions by their confident appearance and denial of the Fact having been emboldened therein from their knowledge of all the grounds of suspition and all the Witnesses examined about them and the matter of their Testimonies 'T is too well known what helps of discovering the whole Popish Plot were lost through the want of keeping secret the Kings Counsel therein before the matter was brought either to the Parliament or to any Grand Inquest and thereby they were disabled for the effectual Execution of their Offices and could never search into the Bowels of that dangerous Treason in any County But our Law having placed this great trust of Enquiry in the prudence and faithfulness of the Grand Inquest was careful that they might not disable themselves for their own trust by the indiscretion or worser fault of any of their own number in revealing the Kings Counsel or their own And as it was intended hereby to preserve unto them all reasonable helps for their bringing to light the hidden mischiefs that might disturb the common Peace so it was necessary to prevent the Flight of Criminals if the Evidence against one that is accused should be publickly known whether it should be sufficient for an Indictment of him and how far it extends to others his Confederates and Accomplices might easily have notice of their danger and take opportunity to escape from Justice Yet the reason will be still more manifest for keeping secret the accusations and the Evidence by the Grand Inquest if it be well considered how useful and necessary it is for discovering truth in the Examinations of Witnesses in many if not in most cases that may come before them when if by this Privacy Witnesses may be examined in such manner and Order as prudence and occasion direct and no one of them be suffered to know who hath been examined before him nor what questions have been asked him nor what answers he hath given it may probably be found out whether a Witness hath been biassed in his Testimony by Malice or Revenge or the fear or favour of men in Power or the love or hopes of Lucre and gain in present or future or Promises of impunity for some enormous Crime The simplicity of Truth in a Witness may appear by the natural plainness easiness and directness of his Answers to whatsoever is propounded to him by the equality of his Temper and suitableness of his Answers to questions of several kinds and perhaps to some that may be asked for Trial sake only of his uprightness in other matters And the Falsness Malice or ill Design of another may be justly suspected from his studiousness and difficulty in answering his Artifice and cunning in what he relates not agreeable to his way of breeding and parts his reserved indirect and evasive Replies to easie Questions his pretences of doubtfulness and want of remembring things of such short dates or such Notoriety that 't is not credible he could be ignorant or forgetful of them In this manner the Truth may be evidenced to the satisfaction of the Jurors Consciences by the very demeanor of the Witnesses in their private Examinations in as much as the greatest certainty doth often arise from the careful observation and comparing of such minute matters of which a distinct account is not possible to be giver to a Court And for that Reason among others the Juries are made the only absolute Judges of their Evidence Yet further their private Examinations may discover truth out of some disagreement of the Witnesses when separately interrogated and every of the Grand Inquest ask them Questions for his own satisfaction about the matters which have come to his particular knowledge and this freely without Awe or Control of Judges or distrust of his own parts or fear to be checked for asking impertinent questions Conspiracies against the lives of the Innocent in a form of Justice have been frequently detected by such secret and separate Examination of Witnesses The Story of Susanna is famous that two of their Elders and Judges of great Credit Authority testified in the open Assembly a malicious invention against her with all the solemnity used in Capital Cases and Sentences of Death passed upon her and was ready to be executed had not wise Daniel cryed out in her behalf Are ye such Fools O Israelites that without Examination or Knowledge of the Truth Note that the Testimony given in the Assembly without separating the Witnesses trying the Truth by circumstances was esteemed ye â—ave condemned a Daughter â—f Israel Return said he again to judgment and put â—hese two one far from another and I will examine them And being asked separately though in publick the testimony having been so given before concerning the place of the fact then in question No Examination or knowledg of the Truth they had not agreed upon that Circumstance as they had upon their Story and so their falshood became manifest one saying the Adultery was committed under a Lentisk Tree the other it was under a Prime Tree And upon that conviction of the false Witnesses the whole Assembly cried with a loud voice and praised God These false Witnesses were put to death as their Law required We have also a late Instance of the usefulness of private and separate Examinations in the case of the Lord Howard against whom the Attorney General prosecuted an Accusation of Treason the last Midsummer Term before the Grand Inquest for Middlesex Mrs. Fitz-Harris and Teresa Peacock her Maid swore words of Treason against him positively and agreed in every point whilst they were together But by the prudence of the Inquest being put asunder and the Mistriss asked how her Maid came to be admitted to the knowledge of such Matters she had an Evasion ready pretending her Maid to have craftily harkened behind a Wainscot Door and so heard the Treason But the Maid not suspecting what her Mistriss had said continued her first Story that she heard the Treason from the Lord Howard himself and was as much trusted by him as her Mistriss By this Circumstance the falshood and Perjury which Mrs. Fitz-Harris hath since acknowledged was discovered and the snare for the Life of the injured Lord was broken as is manifest by his liberty now obtained by Law Witnesses may come prepared and tell plausible Stories in open Court if they
questions they shall think it for the satisfaction of their own Consciences but that they shall be so far under the correction and censure of the â—udges as to have the questions which they put called by them trifles impertinent and unfit for the Witnesses â—o speak to yet if they be examined aâ—art with that due care of sifting out â—ll the Circumstances which the Law requires where every man of the Jury is at full liberty to enquire into any thing for his clearer information and that with what deliberation they think fit and all this be done with that secrecy which the law commands it will be almost impossible for a man to suffer under a false Accusation Nor has the Law been less careful for the Reputation of the Subjects of England than for their Lives and Estates and this seems to be one reason why in criminal Cases a man shall not be brought to an open legal Trial by a Petit Jury till the Grand Jury have first found the Bill The Law having entrusted the Grand Inquest in a special manner with their good names they are therefore not only to enquire whether the fact that is laid was done by the party accused but into the circumstances thereof too whether it were done traiterously feloniously or maliciously c. according to the manner charged which Circumstances are not barely matter of form but do constitute the very essence of the Crime and lastly into the Credit of the Witnesses and that of the party accused and unless they find both the Fact proved upon him and strong presumptions of such aggravating circumstances attending it as the Law requires in the specification of such Crime and likewise are satisfied in the credibility of the Witnesses they ought not to expose the Subject to an open Trial in the face of the County to a certain loss of his Reputation and hazard of his Life and Estate Moreover should this practice of publick Examination prevail and the Jurors Oath of Secrecy continue how partial and unequal a thing would it be to declare that to all the World which will blast a mans good name and religiously cenceal what they may know tending to his Justification To examine Witnesses perhaps suborned certainly prepared and have Evidence dressed up with all the advantages that Lawyers wits can give it of the foulest Crimes a man can be guilty of and this given before some thousands against him and yet for the same Court to swear those whom the Law makes Judges in the case not to reveal one word of those reasons which have satisfied their Consciences of his Innocence What is this but an Artifice of slandring men it may be of the most unspotted cnnversation and of abusing Authority not so much to find men guilty as to make them infamous After this Ignominy is fixed what Judgment can the Auditors and from them the World make but of high probability of guilt in the party accused and Perjury in the Jury This course if it should be continued must needs be of most dangerous consequence to all sorts of men it will both subject every one without relief to be defamed and fright the best and most consciencious men from serving on Grand Juries which is a most necessary part of their duty Now since there is in our Government as in every one that is well constituted there ought to be great liberty of Accusation that no man may be encouraged to do ill through hopes of impunity if by this means a Method be opened for the blasting the most innocent mans honour and deterring the most honest from being his Judges what remains but that every mans Reputation which is most dear unto such as are good is held precariously and it will be in the power of great men to pervert the Laws and take away whose Life and Estate they please or at least to fasten imputations of the most detested crimes upon any whom for secret reasons they have a mind to defame The consequences of which scandal as they are very mischievous to every man so in a Trading Country in a more especial manner to all who live by any vocation of that kind The greatest part of Trade is driven upon credit most men of any considerable Employment dealing for much more than they are truly worth and every mans credit depends as well upon his behaviour to the Government he lives under as upon his private honesty in his transactions between man and man so that the suspicion only of his being obnoxious to the Government is enough to set all his Creditors upon his back and put a Stop to all his Affairs perhaps to his utter ruine What expedition and violence will they all use to recover their debts when he shall be publickly charged with such crimes as forfeit Life and Estate Though there should not be one word of the Accusation true yet they knowing the charge and the seeming proofs in the Court and the consequences of it and not being acquainted with the truth as it appears to the Jury self interest will make his Creditors to draw in their effects which is no more than a new contrivance under colour of Law of undoing honest men If to prevent any of these mischiefs the Jury should discover their fellows and their own Counsel as the Court by publick Examination doth it would not only be a wilful breach of their Oath but a betraying of the trust which the Law has reposed in them for the security of the Subject For to subject the reasons of their Verdicts upon Bills to the censure of the Judges were to divest themselves of the Power which the Law has given them for most important considerations without account or control and to interest those in it whom the Law has not in this case trusted and so by degrees the course of Justice in one of the most material parts may be changed and a fundamental security of our Liberty and Property insensibly lost On the other hand if for fear of being unworthily reproached as Ignoramus Jury-Men obstinate fellows that obstruct Justice and disserve the King the Grand Jury shall suffer the Judges or the Kings Counsel to prevail with them to indorse Billa vera when their Consciences are not satified in the truth of the Accusation they act directly against their Oaths oppress the innocent whom they ought to protect as far as in them lies subject their Country themselves and posterity to Arbitrary powers pervert the administration of justice and overthrow the Government which is instituted for the obtaining of it and subsists by it This seems to be the greatest Treason that can be committed against the whole Kingdom and threatens ruine unto every man in private in it None can be safe against authorized Malice and notwithstanding the care of our Ancestors Rapine Murther and the worst of crimes may be advanced by the formality of Verdicts if Grand Juries be overawed or not suffered to enquire into the Truth to the
dare not rely upon Him in His Kingly Office and trust for safety and Protection by the Laws Our English History affords many Instances of those that have pretended to serve our King in this manner by undermining the Peoples Right and Liberties whose practices have sometimes proved of fatal consequence to the Kings themselves but more frequently ended in their own destruction But after all imagining it could be made out that this Method of private Examinations by a Grand Jury which from what has been said before hath appeared to be so Extremely necessary for the publick good and to every private mans security were inconvenient or Mischievous and therefore fit to be changed Yet being so Essential a part of the Common Law it is no otherwise alterable than by Parliament We find by Presidents that the bare forms of Indictments could not be reformed by the Judges The words Depopulatores agrorum Insidiatores viarum Viet Armis Baculis Cultellis Arcubus sagittis could not be left out but by Advice of the Kingdom in Parliament A writ issued in the Time of K. Ed. 3. giving Power to hear and determine Offences and all the Justices resolved Cok. 4. Inst Pag. 164. That they could not lawfully act having their Authority by Writ where they ought to have had it by Commission Tho it was in the form and words that the Legal Commission ought to be John Knivett Chief Justice by Advice of all the Judges resolved that the said Writ was Contra Legem And where divers Indictments were before them found against T. S. the same all that was done by colour of that Writ was Damned If in such seeming little Things as these and many others that may be instanced the Wisdom of the Nation hath not thought fit to intrust the Judges but reserved the Consideration of them to the Legislative Power It cannot be imagined that they should subject to the discretion and pleasure of the Judges those important Points in the Established course of the administring Justice whereupon depends the safety of all the Subjects Lives and fortunes If Judges will take upon themselves to alter the constant practice they must either alter the Oath of the Grand Jury or continue it If they should alter it so as to make it sail with any such new Method and thus in appearance charitably provide that the Grand Jury should not take a mock Oath or forswear themselves they then make an Incroachment upon the Authority of Parliaments who only can make new or change old Legal Oaths and all the proceedings thereupon would be void If they should continue constantly to impose the same Oath as well when they have notice from the King that the Jury shall not be bound to keep his Secrets and their own as when they have none They must assume to make the same form of Law to be of force and no force and the same words to bind the Conscience as they will have them Whereby they would prophane the Natural Religion of an Oath and bring a foul Scandal upon Christianity by trifling worse than Heathens in that sacred matter And whilst the Judges find themselves under the necessity of administring the Oath unto Grand Juries and not suffer them to observe it according unto their consciences they would confess the illegality of their own Proceedings and can never be able to repair the Breaches by pretending a tacite Implication if the King will but must unavoidably fall under that approved Maxim of our Law Maledicta est Interpretatio quae corrumpit Textum It is a Cursed Interpretation that dissolves the Text. There are Two Vulgar Errours concerning the duty of Grand Juries which if not removed will in Time destroy all the benefit we can expect from that Constitution by turning them into a meer matter of form which were designed for so great Ends. Many have of late thought and affirmed it for Law that the Grand Jury is neither to make so strict Inquiry into matters before them Nor to look for so clear Evidence of the Crime as the Petit Jury but that of their Presentments being to pass a second Examination they ought to indict upon a Superficial Inquiry and bare Probabilities Whereas should either of these Opinions be admitted the Prejudice to the subject would be equal to the total laying aside Grand Juries There being in Truth no difference between arraigning without any Presentment from them at all and their Presenting upon slight grounds For the first that Grand Juries ought not to make so Strict Inquiry it were to be wisht that we might know how it comes to pass that an Oath should be obligatory unto a Petit Jury and not unto the Grand Or in what Points they may lawfully and with good Conscience omit that Exactness whether in Relation to the Witnesses and their credibility Or the fact and all its circumstances Or the Testimony and its weight Or lastly in Reference to the Prisoner and Probability of his guilt And withal upon what grounds of Law or Reason their Opinion is founded On the contrary he that will consider either the Oath they take or the Commission where their duty is described will find in all Points that there lies an Equal obligation upon them and the Petit Juries They swear diligently to inquire and true Presentment make c. and to Present the Truth the whole Truth and Nothing but the Truth c. And in the Commission of Oyer Terminer their duty with that of the Commissioners is thus described Ad Inquirendum per Sacramentum Proborum legalium hominum c. per quos rei veritas melius sciri poterit de quibuscunque proditionibus c. confoederationibus Falsis allegantiis nec non Accessoriis Eorundem c. per quoscunque qualitercunque habit fact perpetrat sive Commiss Et per quos Et per quem cui vel quibus quando qualiter vel quomodo de aliis articulis Circumstantiis praemis eorum aliquod vel aliqua qualitercunque concernen To inquire by the Oath of honest and lawful Men c. By whom the Truth of the matter may be best known of all manner of Treasons c. Confederacies false Testimonies c. As also the Accessories c. by whomsoever or howsoever done perpetrated or committed by whom or to whom how in what way or in what manner And of other Articles and Circumstances premised and of any other Thing or Things howsoever concerning the same Now for any Man after this to maintain that Grand Juries are not to inquire or not carefully is as much as in plain terms to say they are bound to act contrary to the Commission and their Oath And to affirm that they can discharge their duty according to the obligations of Law and Conscience which they lie under without a strict Inquiry into Particulars is to affirm that the End can be obtained without the means necessary unto it The Truth is
that Grand Juries have both a larger field for their Inquiry and are in many respects better capacitated to make a strict one than the Petit Juries These last are confined as to the Person and the Crime specified in the Indictment But They are at large obliged to search into the whole matter that any ways concerns every case before them and all the Offences contained in it all the Criminal Circumstances whatsoever and into every Thing howsoever concerning the same They are bound to inquire whether their Information of Suspected Treasons or Felonies brought by Accusers be made by Conspiracy or Subornation Who are the Conspirators or false Witnesses By whom abetted or maintained Against whom and how many the Conspiracy is layed When and how and in what course it was to have been prosecuted But none of these most intricate matters which need the most strict and diligent Inquiries can come under the Cognisance of the Petit Jury They can only examine so much as relates to the Credit of those Witnesses brought to prove the Charge against the Parties Indicted Wherein also they have neither Power nor convenient time to send for persons or Papers if they think them needful Nor to resolve any doubts of the Lawfulness and Credibility of the Testimonies Yet further if the Crimes objected are manifest 't is then the Grand Juries duty to inquire after all the Persons any ways concerned in them and the several Kinds of Offences whereof every one ought joyntly or separately to be indicted as they shall discover them to have been Principals or Accessories Parties or privy thereunto or to have comforted or Knowingly relieved either the Traitors or Felons or conceal'd the offences of others But the Inquisition into all these matters which require all possible strictness in searching as being of the highest importance unto the publick Justice and safety is wholly out of the Power Trust of the Petit Juries The guilt or Innocence of the Parties put upon their Tryals the Evidence thereof given is the only Objects of their Inquiries It is not their work nor within their trust to search into all the guilt or Crimes of the Parties whom they try They are bound to move within the Circle of the Indictment made by the Grand Jury who are to appoint and specify the offences for which the Accused shall be tried by the Petit Jury When a Prosecutor suggests that any Man is criminal and ought to be indicted it belongs to the Grand Jury to hear all the proof he can offer to use all other means they can whereby they may come to understand the Truth of the suggestion every thing or circumstance that may concern it Then they are carefully to examine the nature of the Facts according unto the Rules of the Com. Law or the express words of the Statutes whereby offences are distinguished and punishments allotted unto each of them T is true that upon heating the Party or his Witnesses the Petit Jury may acquit or judge the Facts in the Indictment to be less heinous or malitious then they were presented by the Grand Jury but cannot aggravate them which being considered it will Easily appear by the intent and Nature of the Powers given unto Grand Juries that they are by their Oaths obliged and their institution ordained to keep all injustice from entring the first gates of our Courts of Judicature and to secure the innocent not only from punishment but from all disgrace vexation Expence or danger To understand our Law clearly herein the Jurors must first know the lawful grounds whereupon they may and ought to indict and then what truly and justly ought to be taken for the ground of an Indictment The principal and most certain is the Jurors personal knowledge by their own Eyes or Ears of the Crimes whereof they indict Or so many pregnant concurring Circumstances as fully convince them of the guilt of the Accused When these are wanting the Depositions of Witnesses and their Authority are their best guides in finding Indictments When such Testimonies make the charge manifest and clear to the Jury they are called Evidence because they make the guilt of the Criminal evident and are like the Light that discovers what was not seen before All Witnesses for that reason are usually called the Evidence taking their name from what they ought to be Yet Witnesses may swear directly and positively to an Accusation and be no Evidence of its truth to the Jury sometimes such Remarks may be made upon the Witnesses as well in relation to their Reputation and Lives as to the Matter Manner and Circumstance of their Depositions that from thence the falshood may appear or be strongly suspected It is therefore necessary to know what they mean by a probable Cause or Evidence who say that our Law requires no more for an Indictment Probable is a Logical Term relating to such propositions as have an appearance but no certainty of Truth shewing rather what is not than what is the matter of Syllogisms These may be allowed in Rhetorick which worketh upon passions and makes use of such Colors as are fit to move them whether true or false but not in Logick whose Object is Truth as it principally intends to obviate the Errours that may arise from the credit given unto appearances by distinguishing the uncertain from the certain verisimile à vero it cannot admit of such Propositions as may be false as well as true it being as impossible to draw a certain conclusion from uncertain premises as to raise a solid Building upon a tottering or sinking Foundation This ought principally to be considered in Courts of Justice which are not erected to bring men into condemnation but to find who deserves to be condemned and those Rules are to be followed by them which are least liable to deception For this Reason the Council of the Areopagites and some others of the best Judicatures that have been in the World utterly rejected the use of Rhetorick looking upon the Art of persuading by uncertain probabilities as little differing from that of deceiving directly contrary to their ends who by the knowledge of truth desired to be led into the doing of Justice But if the Art that made use of their probabilities was banisht from uncorrupted Tribunals as a hindrance unto the discovery of Truth they that would ground Verdicts totally upon them declare an open neglect of it and as it is said that uno absurdo dato mille sequuntur if Juries were to be guided by probabilities the next question would be concerning the more or less probable or what degree of probability is required to persuade them to find a Bill This being impossible to fix the whole Proceedings would be brought to depend upon the Fancies of Men and as nothing is so slight but it may move them there is no security that innocent Persons may not be brought every day into danger and trouble By this means certain