know from the Prosecutor to what they must answer and have agreed and acquainted each other with the tales they will tell and have resolved to be careful that all their answers to cross Interrogatories may be conformable to their first stories And if these relate only to words spoken at several times in private to distinct Witnesses in such a case Evidence if given in open Court may seem to be very strong against the person accused though there be nothing of truth in it But if such Witnesses were privately and separately examined by the Grand Inquest as the Law requires and were to answer only such questions as they thought fit and in such order as was best in their judgments and most natural to find out the Truth of the Accusation so that the Witnesses could not guess what they should be asked first or last nor one conjecture what the other had said which they are certain of when they know beforehand what the Prosecutor will ask in Court of every of them and what they have resolved to answer if the Inquest should put them out of their Road and then compare all their several answers together they might possibly discern marks enough of falshood to shew that their Testimonies ought not to be depended upon where life is in question By what is now said the reasonableness of this Institution of Secrecy may be discerned in respect to the discovery of Truth and the protection of the Innocent from malicious Combinations and Perjuries Yet the same Secrecy of the Kings Council is no less necessary to reserve the guilty for punishment when the Evidence against any party accused is not manifest and full it may be kept without prejudice under Secrecy until further Enquiry and if sufficient proof can afterwards be made of the Offence an Indictment may be found by a Grand Inquest and the party brought to answer it But when the Examinations are in open Court or the Kings Councils any other way divulged and the Evidence is weak and less than the Law requires 't is not probable that it will be more or stronger and should an Indictment be found and the party tried by a Petit Jury whilst the Evidence is not full they must and ought to acquit him and then the further prosecution for the same Offence is for ever barred though his guilt should afterward be manifest and confessed by himself From hence may certainly be concluded that Secrecy in the Examinations and Enquiries of Gr. Juries is in all respects for the Interest and advantage of the King If he be concerned to have secret Treasons Felonies and all other enormities brought to light and that none of the Offenders should escape Justice if the gain of their Forfeitures be thought his interest which God forbid then the first notices of all dangerous crimes and wicked confederacies ought to be secretly and prudently pursued and searcht into by the Grand Inquest The accusers and Witnesses ought not to publish in a Court before a multitude what they pretend to know in such cases until the discretion of so many honest men of the neighbourhood hath first determined whether their testimony will amount to so good and full Evidence that it may be made publick with safety to the King and People in order to Justice Else they are obliged by Oath to lock up in their own breasts all the circumstances and presumptions of crimes until they or such as shall succeed in the same trust shall have discovered as they believe Evidence enough to convict the accused and then and not before they are to accuse the party upon Record by finding the Bills as it 's usually called But when Bills are offered without fatisfactory Evidence and they neither know nor can learn any more they ought for the King's sake to indorse Ignoramus upon them least his Honour and Justice be stained by causing or permitting such prosecution of his People in his own name and at his suit as shall appear upon their Trial and Acquittal to have been frivolous or else malicious designs upon their Lives and Fortunes If it should be said that whatsoever reasons there are for this Oath of Secrecy yet it cannot deprive the King of the benefit of having the Evidence made publick if he desires it and that the Grand Jury do not break their Oaths when the King or the Prosecutor for him will have it so 'T is not hard to shew that such Notions have no foundation in Law or Reason and seem to come from men who have not well studied the first principles of the English Government or of true Religion Whosoever hath learnt that the Kings of England were ordained for the good Government of the Kingdom in the Execution of the Laws must needs know that the King cannot lawfully seek any other benefit in judicial proceedings than that common Right and Justice be done to the People according to their Laws and Customs Their Safety and Prosperity are to be the objects of His continual Care and Study that being highest concern The greatness and Honour of a Prince consists in the Virtue Multitude Wealth and Prowess of his People and his greatest Glory is by the excellence of his Government so to have encouraged Virtue and Piety that few or no Criminals are to be found in his Dominions Those who have made this their principal aim have in some places so well succeeded as to introduce such a Discipline and rectitude of manners as rendred every man a Law unto himself As it is reported in the History of Peru Gar. de la Veg. Hist de los Incas that though the Laws were so severe as to make very small Crimes capital yet it often fell out that not one man was put to Death in a year within the whole compass of that vast Empire The King 's only benefits in finding out and punishing Offenders by Courts of Justice are the preservation and Support of the Government the protection of the Innocent revenging their wrongs and preventing further mischiefs by the terrors of exemplary punishments The King is the head of Justice in the esteem of our Laws and the whole Kingdom is to expect right to be done them in his several Courts instituted by Law for that purpose Therefore Writs issue out in his name in all cases where relief is sought by the Subjects and the wrongs done to the Lives or Limbs of the People are said to be done against the Peace of the King his Crown and Dignity reckoning it a dishonour to him and his Government that Subjects should not whilst they live within the Law enjoy Peace and Security It ought to be taken for a scandal upon the King when he is represented in a Court of Justice as if he were partially concerned or rather inclined to desire that a party accused should be found guilty than that he should be declared innocent if he be so in Truth Doubtless the King ought to wish in all Enquiries
c. Unto which every man must answer But no man can be brought to answer for Publick Crimes at the King's Suit otherwise than by Indictment of a Grand Jury The whole Course of doing Justice upon Crimina's from the beginning of the process unto the Execution of the Sentence is and ever was esteemed to be the Kingdoms concernment as is evidenced by the frequent Complaints made in Parliament that Capital Offenders were pardon'd to the Peoples damage and wrong In the 13 Rich. 2. it is said that the King hearing the grievous Complaints of his Commons in Parliament of the outragious mischiefs which happened unto the Realm for that Treasons Murders and Rapes of Women be commonly done and committed and the more because Charters of pardon had been easily granted in such cases And thereupon it was enacted that no pardon for such crimes should be granted unless the same were particularly specified therein and that if a pardon were otherwise granted for the death of a man the Judges should notwithstanding enquire by a Grand Jury of the Neighbourhood concerning the death of every such person and if he were found to have been wilfully murdered such Charter of Pardon to be disallowed and provisions were made by imposing grievous Fines upon every person according to his Degree and Quality or Imprisonment who should presume to sue to the King for any pardons of the aforesaid crimes and that such persons might be known to the whole Kingdom their names were to be upon several Records The like had been done in many Statutes made by several Parliaments as in the 6 Ed. 1.9 the 2 Ed. 3.2 the 10 Ed. 3.2 and the 14 Ed. 3.15 wherein it was acknowledged by the King in Parliament That the Oath of the Crown had not been kept by reason of the Grant of Pardons contrary to the aforesaid Statutes and enacted that any such Charter of Pardon from thenceforth granted against the Oath of his Crown and the said Statutes the same should be holden for none In the 27 Edw. 3.2 It is further provided for preventing the Peoples damage by such pardons That from thenceforth in every Charter of Pardon of Felony which shall be granted at any mans suggestion the said suggestion and the name of him that maketh the suggestion shall be comprised in the same Charter and if after the same suggestion be found untrue the Charter shall be disallowed and holden for none And the Justices before whom such Charter shall be alledged shall enquire of the same suggestion and that as well of Charters granted before this time as of Charters which shall be granted in time to come and if they find them untrue then they shall disallow the Charter so alledged and shall moreover do as the Law demandeth Thus have Parliaments from time to time declared that the Offences against â—he Crown are against the publick welâ—are and that Kings are obliged by â—heir Oath and Office to cause Justice to â—e done upon Traitors and Felons â—or the Kingdoms sake according to â—he ancient common Law declared by Magna Charta in these â—ords Nulli negabimus 9 Hen. 3.29 nulli vendemus nulli difâ—remus Justitiam We will sell to no â—an we will not deny or defer to any â—an either Justice or Right And as the publick is concerned that the due and legal Methods be observed in the Prosecution of Offenders so likewise doth the security of every single man in the Nation depend upon it No man can assure himself he shall not be accused of the highest crimes Let a mans Innocence and prudence be what it will yet his most inoffensive Words and Actions are liable to be misconstrued and he may by Subornation and Conspiracy have things laid to his charge of which he is no ways guilty Who can speak or carry himself with that circumspection as not to have his harmless Words or Actions wrested to another sence than he intended Who can be secure from having a Paper pur into his Pockets or laid in his house of which he shall know nothing till his Accusation History affords many Examples of the detestable practices in this kind of wicked Court Parasites among which one may suffice for Instance out of Polibius an approved Author Polib lib. 5. Hermes a powerful Favourite under Antiochus the younger but a man noted to be a favourer of Liars was made use of against the innocent and brave Epigenes He had long watcht to kill him for that he found him a man of great Eloquence and Valour having also favour and Authority with the King He had unjustly but unsuccessfully accused him of Treason by false glosses put upon his faithful advice given to the King in open Council â—his not prevailing he by artifice got him put out of his Command and to retire from Court which done he laid 〈◊〉 Plot against him with the help and Counsel of one of his Complices Alexâ—s and writing Letters as if they had been sent from Molon who was then in open Rebellion against his Prince â—or fear amongst other Reasons of the Cruelty and Treachery of Hermes and corrupted one of Alexis's Servants with â—reat Promises who went to Epigenes â—o thrust the Letters secretly amongst â—is other Writings which when he had â—one Alexis came suddenly to Epigenes â—emanding of him if he had received any Letter from Molon and when he said he had none the other said he was confident he should find some wherefore entring the House to search he found the Letters and taking this occasion slew him lest if the Fact had been duly examined the Conspiracy had been discovered These things happening thus the King thought that he was justly slain in this manner the worthy Epigenes ended his days But this great mans designs did not rest here for within a while heightened with success he so arrogantly abused His Masters Authority as he grew dangerous to the King himself as well as to those about him insomuch as Antiochus was sorced for that he hated and feared Hermes to take away his Life by Stratagem thereby to secure himself By these and a thousand other ways the most unblemisht Innocence may be brought into the greatest dangers Since then every man is thus easily subject to question and what is one mans case this day may be another man 's to morrow it is undoubtedly every mans concern to see as far as in him lies in every case that the accused Person may have the benefit of all such provisions as the Law hath made for the defence of Innocence and Reputation Now to this end there is nothing so necessary as the secret and separate examination of Witnesses for though perhaps as hath been already observed it may be no very difficult thing for several persons who are permitted to discourse with each other freely and to hear or be told what each of their fellows had been asked and answered to agree in one story especially if the Jury may not ask what
satisfaction of their Consciences Every man whilst he lives innocently doth under God place his hopes of security in the Law which can give no protection if its due course be so interrupted that frauds cannot be discovered Witnesses may as well favour offenders as give false testimony against the guiltless and if they by hearing what each other saith are put into a way of concealing their villainous designs there can be no legal Revenge of the crimes already committed Others by their impunity will be encouraged to do the like And every quiet minded person will be equally exposed unto private injuries and such as may be done unto him under the colour of Law No man can promise unto himself any security for his Life or goods and they who do not suffer the uâ—most violences in their own persons may do it in their Children Friends and nearest Relations if he be deprived of the remedies that the Law ordains and forced to depend upon the Will of a Judge who may be and perhaps we may say are too often corrupted or swayed by their own Passions Interests or the Impulse of such as are greater than they This mischief is aggravated by a commonly received Opinion that whosoever speaks against an accused person is the Kings Witness and the worst of men in their worst designs do usually shelter themselves under that name whereas he only is the Kings Witness who speaks the truth whether it be for or against him that is accused As the Power of the King is the Power of the Law he can have no other intention than that of the Law which is to have Justice impartially administred and as he is the Father of his People he cannot but incline ever to the gentlest side unless it be possible for a Father to delight in the destruction or desire to enrich himself by the confiscation of his Childrens Estates If the most wicked Princes have had different thoughts they have been obliged to dissemble them We know of none worse than Nero but he was so far from acknowledging that he desired any mans condemnation that he looked upon the necessity of signing Warrants for the execution of Malefactors Sne. Vit. Ner. Vtinam nescirem letteras as a burthen and rather wished he had not learnt to write than to be obliged to do it They who by spreading such barbarous errours would create unto the King an interest different from that of his People which he is to preserve whilst they pretend to serve him in destroying of them they deprive him of his honour and dignity Justice is done in all places in the name of the chief Magistrate it being presumed that he doth embrace every one of his Subjects with equal tenderness until the guilty are by legal proofs discriminated from the Innocent and amongst us the Kings name may be used in civil cases as well as criminal But it is as impossible for him rightly to desire I should be condemned for killing a man whom I have not killed or a Treason that I have not committed as that my Land should be unjustly taken from me by a judgment in his Bench or I should be condemned to pay a debt that I do not owe. In both cases we sue unto him for Justice and demand it as our right We are all concerned in it publickly and privately and the King as well as all the Officers of Justice are by their several Oaths obliged in their respective capacities to perform it They are bound to give their assistance to find out Offenders and the Kings Attorney is by his Oath to prosecute them if he be required and he is not only the Kings servant in such cases but the Nations or rather cannot otherwise serve the King than by seeing Justice done in the Nation Whensoever any man receives an injury in his Person Wife Children Friends or goods the King is injured in as much as he is by his Office to prevent such mischief and ought to be concerned in the Welfare of every one of his Subjects but the parties to whom the injuries are done are the immediate sufferers and the prosecution is principally made that they may be repared or revenged and other innocent persons secured by the punishment of Offenders in which the King can be no otherwise concerned than as he is to see his Office faithfully performed and his People protected The Kings suit therefore is in the behalf of his People yet the Laws leave unto euery man a Liberty in case of Treasons Murthers Rapes Robberies c. to sue in the Kings name and crave his aid or by way of appeal in his own The same Law looks upon Felons or Traitors as publick Enemies and by authorizing every one to pursue or apprehend them teacheth us that every man in his place ought to do it The same Act whereby one or a few are injured threatneth all and every mans private interest so concurs with that of the publick that all depends upon the exact preservation of the Method prescribed by the Law for the impartial inquisition after suspected Offenders and most tender care of preserving such as are innocent As this cannot possibly be effected without secret and separate examinations the forbidding of them is no less than to change the Course which is enjoyned by Law confirmed by custom and grounded upon reason and Justice If on the other side any man believe that such as in the Kings name prosecute suspected Delinquents ought only to try how they may bring them to be condemned he may be pleased to consider that all such persons ought according unto Law to produce no Witness whom they do not think to be true No Evidence which they do not believe good nor can conceal any thing that may justifie the accused No trick or artifice can be lawfully used to deceive a Grand Jury or induce them to find or reject a Bill otherwise than as they are led by their own Consciences All Lawyers were antiently sworn to put no deceit upon the Courts for their Clients sake and there are Statutes still in force to punish them if they do it but there is an eternal obligation upon such as are of Counsel against persons accused of crimes not to use such arts as may bring the innocent to be condemned and thereby pervert that which is not called the judgment of man but of God because man renders it in the stead and by the Commandment of God such practises exalt the Jurisdiction of Tribunals but infect and pollute them with that innocent Blood which will be their over-throw And least of all can it be called a service to the King since none could ever stand against the cry of it This is necessarily implyed in the Attorney general his Oath to serve the King in his Kingly Office wherein the Law presumes he can do no wrong But the greatest of all wrongs and that which hath been most destructive unto Thrones is by Fraud to circumvent
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
sometimes caused to come before the King's Council by Writ and otherwise upon grievous pain against the Law It is assented and accorded for the good Government of the Commons That no man be put to answer without presentment before Justices or matter of Record c. according to the old Law of the Land and if any thing be done to the contrary it shall be void in Law c. And saith the Statute of the 25 of E. 3.4 None shall be taken by Petition or Suggestion made to the King or to his Council unless it be by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deeds be done c. That is to say by a Grand Jury All our Lives are thus by Law trusted to the Care of our Grand Inquests that none may be put to answer for their lives unless they Indict them If a causless Indictment of any man should carelesly pass from them his guiltless Blood or what Prejudice soever the Accused should thereby suffer must rest upon them who by breach of their Trust were the occasions of it their fault cannot be excused by the prosecution of an Attorney or Solicitor General or any other Accuser if it were in their power to be more truly informed in the Case Whosoever prevents not an Evil when he may consents to it Now to oblige these Juries to the more conscientious care to Indict all that shall appear to them Criminals and to save every Innocent if it may be from unjust Vexation and danger by Malice and Conspiracy our Ancestors appointed an Oath to be imposed upon them which cannot be altered except by Act of Parliament Therefore every Grand Jury Man is sworn as the Foreman in the words following viz. You shall diligently enquire and true Presentment make of all such Articles matters and things as shall be given you in charge And of all other matters and things as shall come to your own knowledge touching this present service The King's Council your Fellows and your own you shall keep secret You shall present no person for Hatred or Malice neither shall you leave any one unpresented for Favour or Affection for Love or Gain or any hopes thereof but in all things you shall present the Truth the whole Truth and nothing but the Truâ—â— to the best of your knowledge so hâ—â— you God The Tenor of the Oath plain saving in those words All suâ—â— matters and things as shall be given 〈◊〉 in charge But whensoever a general Commission of Over and Terminer issued all Capital Offences are alwaies 〈◊〉 principal matters given in charge to 〈◊〉 Grand Jury which is enough for 〈◊〉 present discourse oâ— their duty Heâ—â— then it evidently appears that eveâ— Grand Jury is bound to enquire dâ—â— gently after the Truth of every thiâ—â— for which they shall Indict or Present â—ny Man They are not only bound 〈◊〉 by the Eternal Law of loving the Neighbour to be as tender of the 〈◊〉 and good Name of every man as of the own and therefore to take heed to the Truth in Accusing or Indicting any man but their express Oath binds them to 〈◊〉 diligent in their Enquiries that is 〈◊〉 receive no suggestion of any Crime 〈◊〉 Truth without examining all the Câ—â—cumstances about it that fall within the knowledge they ought to consider the first Informers and enquire as far as they can into their Aims and Pretences in their prosecutions if Revenge or Gain should appear to be their ends there ought to be the greater suspition of the Truth of their Accusations the Law intending all Indictments to be for the benefit of the King and of his People as appears by the Stat. of 42 E. 3.3 Next the Jury are bound to enquire into the matters themselves whereof any man is accused as to the time place and all other circumstances of the Fact alledged There have been false Informers that have suggested things impossible for instance That Thirty Thousand Men in Arms were kept in readiness for an Exploit in a secret place as if they could have been hid in a Chamber or a Cabinet The Jury ought also to enquire after the Witnesses their condition and quality their fame and reputation their means of subsistence and the occasion whereby the Facts whereof they bear witness came to their knowledge Sometimes persons of debaucheâ— lives and low condition have deposeâ— Discourses and Treasonable Council against Persons of Honour and Virtue so unlikely to come to their Knowledge if such things had been that their pretence of being privy to them was strong Evidence that their whole story was false and feigned It is also agreeable unto our ancient Law and Practice and of great Consequence in cases 〈◊〉 Treason or Felony that the Jury enquire after the time when first the matters deposed came to the Witnesses knowledge and whether they pursued the directions of the Law in the immediatâ— Discovery and pursuit of the Traitor oâ— Felon by Hue and Cry or otherwise oâ— how long they concealed the same their Testimony being of little or no value iâ— they have made themselves partakeâ— of the Crime by their voluntary Concealment Neither may the Jury lawfully omiâ— to enquire concerning the Parties Accused of their Quality Reputation and the manner of their Conversation with many other Circumstances from whence they may be greatly helped to make right Inferences of the Falshood or Truth of the Crimes whereof any man shall be accused The Jury ought to be ignorant of nothing whereof they can enquire or be informed that may in their understandings enable them to make a true Presentment or Indictment of the matters before them When a Grand Jury is sworn to enquire diligently after all Treasons c. 't is natural and necessary to their business to think of whom they should enquire and 't is plainly and easily resolved that they ought to enquire of every man that can or will inform them and if any kind of Treason be suggested to them to have been done by any man or number of men their duty is the same in that particular as it was in the general that is to seek diligently to find the truth 'T is certainly inconsistent with their Oaths to shut their Ears against any lawful man that can tell them any thing relating unto a crime in question before them No man will believe nor can they themselves think that they desire to find anâ— present the truth of a fact if they shaâ—â— refuse to hear any man who shall pretend such knowledge of it or such material Circumstances as may be useful to discover it whether that which shall be said by the pretenders will answer the Juries expectations must reâ—â— in their Judgments when they have heaâ—â— them It seems therefore from the word of the Oath that there is no bound or limit set save their own understanding or Conscience to restrain them to and number or sort of persons of whom they
made after Treasons Felonies c. that there were none to be found in his Kingdom and that whosoever is accused might be able to answer so well and truly for himself as to shew the Accusation to be erroneous or false and to be acquitted of it Something of this appears in the common Custom of England that the Clerks of the Kings Courts of Justice when any man hath pleaded not guilty to an Indictment prays forthwith that God would send him a good deliverance The Destruction of every Criminal â—s a loss to a Prince and ought to be grievous to him in the common regard of humanity and the more particular Relation of his Office and the name of Father The Kings Interest and Honour is more concerned in the Protection of the Innocent than in the punishment of the Guilty This maxime can never run them into excesses for it hath ever been lookt upon as a mark of great Wisdom and Virtue in some Princes and States upon several occasions â—o destroy all Evidences against Delinquents and nothing is more usual than â—o compose the most dangerous distempers of Nations by Acts of general Amnesty which were utterly unjust if it â—t were as great a crime to suffer the Guilty to escape as to destroy the Innocent We do not only find those Princes represented in History under odious Characters who have basely murthered the Innocent but such as by their Spies and Informers were too inquisitive after the guilty whereas none was ever blamed for Clemency or for being too gentle Interpreters of the Laws Tho. Trajan was an excellent Prince endowed with all hereical Virtues yet the most eloquent Writers and his best friends found nothing more to be praised in his Government than that in his time all men might think what they pleased Tacit. lib. 1. Hist and every man speak what he thought and he had no better way of distinguishing himself from his wicked Predecessors than by hanging up the Spies and Informers whom they had employed for the discovery of crimes But if the punishment of Offenders were as universally necessary as the Protection of the Innocent he were as much to be abhorred as Nero and that clemency which is so highly praised were to be lookt upon as the worst of vices and those who have hitherto been taken for the best of Princes were altogether as detestable as the worst Moreover all humane Laws were ordained for the preservation of the Innocent and for their sakes only are punishments inflicted that those of our own Country do solely regard this was well understood by Fortesâ—ue who saith Fort. de Laud. Leg. Ang. ch 27. Indeed I could â—ather wish Twenty Evildoers to escape death through â—itty than one man to be unjustly condemned Such Blood hath cried to Heaven for Vengeance against Families and Kingdoms and their utter destruction hath ensued If a Criminal should be acquitted by too great lenity caution or otherwise he may be reserved for future Justice from Man or God if he doth not repent but 't is impossible that satisfaction or reparation should be made for innocent Bloodshed in the forms of Justice Without all question the Kings only just Interest in the Evidence given against the party accused and in the manner of taking it is to have the truth made manifest that Justice may there upon be done impartially And if accusations may be first examined in secret more strictly and exactly to prevent Fraud and Perjury than is possible to be done in open Court as hath before appeared then 't is for the Kings benefit to have it so And nothing done in or by a Court about the Trial of the accused is for the King in the sense of our Law unless it some way conduce to justice in the case The Witnesses which the Prosecutor brings are no further for the King than they tell the truth and the whole Truth impartially and by whomsoever any others may be called upon the Enquiry or the Trial to be examined if they sincerely deliver the truth of the matters in question they are therein the Kings Witnesses though the accused be acquitted by reason of their Testimonies If such as are offered by the Attorney General to prove Treason against any man shall be found to swear falsly maliciously or for Reward or Promises though they depose positively facts of Treason against the accused yet they are truly and properly Witnesses against the King by endeavouring to prevent Justice and destroy his Subjects Their Malice and Villany being confessed or proved the Kings Attorny ought ex Officio to prosecute them in the Kings name and at his suit for their Offences against him in such Depositions pretended to have been for him and the legal form of the Indictment ought to be for their swearing falsly and maliciously against the Peace of the King his Crown and Dignity The Prosecutors themselves notwithstanding their big words and assuming to themselves to be for the King if their prosecution shall be proved to be malicious or by Conspiracy against the Life or Fortune of the accused they are therein against the King and ought to be indicted at the King's Suit for such Prosecutions done against his Crown and Dignity And if an Attorney General should be found knowingly guilty of abetting such a Conspiracy his Office could not excuse or legally exempt him from suffering the villanous judgment to the destruction of him and his Family 'T is esteemed in the Law one of the most odious Offences against the King to attempt in his name to destroy the Innocent for whose Protection he himself was ordained Qu. Elizabeth had the true sense of our Law Co. Inst 3d part p. 79. when the Lord Burleigh upon Sir Edward Coke her then Attorney's coming into her presence told her this is he who prosecutes pro Domina Regina for our Lady the Queen and she said she would have the form of the Records altered for it should be Attornatus Generalis qui pro Domina veritate sequitur The Attorney General who prosecutes for our Lady the Truth Whoever is trusted in that employment dishonours his Master and Office if he gives occasion to the Subjects to believe that his Master seeks other profits or advantages by Accusations than the common Peace and Welfare He ought not to excite a jealousie in any of their minds that confiscations of Estates are designed or desired by any of the King's Ministers whosoever makes such advantages to the Crown their principal aim in accusing are either Robbers and Murderers in the Scripture sense in seeking innocent Blood for gain or in the mildest Construction supposing the Accusation to be on good grounds they shew themselves to be of corrupt minds and a scandal to their Master and the Government Profit or loss of that kind ought to have no place in judicial proceedings against suspected Criminals but truth is only to be regarded and for this reason the judgments given in Court of
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
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
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
Dominorum Henrici Johannis ac per terribiles fulminationes Excommunicationis sententiae in transgressores communium libertatum Angliae quae in chartis praedictis continentur corroboratas cum spes praeconcepta de libertatibus illis observandis fideliter ab omnibus putaretur stabilis indubitata Rex conciliis malorum Ministrorum praeventus seductus easdem infringendo contravenire non formidavit credens deceptive pro munere absolvi à transgressione quod esset manifestum regni exterminium Aliud etiam nos omnes angit intrinsecus quod Justiciarii subtiliter ex malitia sua ac per diversa argumenta avaritiae intolerabilis superbiae Regem contra fideles suos multipliciter provocaverunt incitaverunt sanoque salubri consilio Ligeorum Angliae contrarium reddideruut consilia sua vana impudenter praeponere affirmare non erubuerunt seu formidaverunt ac si plus babiles essent ad consulendam conservandam Rempublicam quam tota Universitas Regni in unum collecta Ita de illis possit vere dici viri qui turbaverunt terram concusserunt Regnum sub fuco gravitatis totum populum graviter oppresserunt praetextuque solummodo exponendi vereres Leges novas non dicam Leges sed malas consuetudines introduxerunt vomuerunt ita quod per ignorantiam nonnullorum ac per partialitatem aliorum qui vel per munera vel timorem aliquorum potentum innodati fuerunt nulla fuit stabilitas Legum nec alicui de populo Justitiam dignabantur exhibere opera eorum sunt opera nequitiae opus iniquitatis in manibus pedes eorum ad malum current festinant ac viam recti nescierunt Quid dicam non est judicium in gressibus suis agros violenter tulerunt rapuerunt domos oppresserunt virum domum ejus imo virum Haereditatem suam vae Judices qui sicut Lupi vespere non relinquebant ossa in mane Justus Judex adducit Consiliarios in stultum finem Judices in stuporem mox alta voce justum Judicium terrae recipietis His auditis omnium aures tinniebant totaque Communitas ingemuerunt Vide Mat. West Anno 1289. p. 376. li. 13. dicentes heu nobis heu ubi est Angliae toties empta toties concessa toties scripta toties jurata Libertas Alii de Criminalibus sese à visibus populi subtrahentes in locis secretis cum amicis tacite latitaverunt Anno vero 1290. 18. Ed. 1. deprehensis omnibus Angliae Justiciariis de repetundis praeter Jo. Metingham Eliam de Bleckingham quos honor is ergo nominatos volui judicio Parliamenti vindicatum est in alios atque alios carcere exilio fortunarumque omnium dispendio in singulos mulcta gravissima amissione officii Spelmans Glossary p. 1. co 1.416 alios protulerunt in medium unde merito fere omnes ab officiis depositi amoti unus à terra exulatus alii perpetuis prisonis incarcerati alii que gravibus pecuniarum solutionibus juste adjudicati fuerunt AFter that the King for the space of three Years and more had remained beyond Sea and returned out of Gascoign and France into England he was much vexed and disturbed by the continual clamour both of the Clergy and Laity desiring to be relieved against the Justices and other His Majesizes Ministers of several oppressions and injuries done unto them contrary to the good Laws and customs of the Realm whereupon King Edward by his Royal Letters to the several Sheriffs of England commanded that in all Counties Cities and Market Towns a Proclamation should be made that all who found themselves agrieved should repair to Westminster at the next Parliament and there shew their grievances where as well the great as the less should receive fit remedies and speedy Justice according as the King was obliged by the Bond of his Coronation Oath And now that great day was come that day of judging even the Justices and the other Ministers of the Kings Council which by no Collusion or Reward no Argument or Art of Pleading they could elude or avoid The Clergy therefore and the People being gathered together and seated in the great Palace of Westminster the Archbishop of Canterbury a man of eminent Piety and as it were a Pillar of the holy Church the Kingdom rising from his Seat and fetching a profound sigh spoke in this manner Let this Assembly know that we are called together concerning the great and weighty Affairs of the Kingdom too much alas of late disturbed and still out of Order unanimously faithfully and effectually with our Lord the King to treat and ordain Ye have all heard the grievous complaints of the most intollerable injuries and oppressions of the daily desolations committed both on Church and State by this corrupt Council of our Lord the King contrary to our great Charters so many and so often purchased and redeemed granted and confirmed to us by the several Oaths of our Lord the King that now is and of our Lords King Henry and John and corroborated by the dreadful thundrings of the sentence of Ecommunication against the Invaders of our common Liberties of England in our said Charters contained and when we had conceived firm and undoubted hopes that these our Liberties would have been faithfully preserved by all men the King circumvented and seduced by the councils of evil Ministers hath not been afraid to violate it by infringing them falsly believing that he could for Rewards be absolved from that offence which would be the manifest destruction of the Kingdom There is another thing also that grieves our Spirits that the Justices subtilly and maliciously by diverse Arguments of covetousness and intollerable Pride have the King against his faithful Subjects sundry ways incited and provok'd counselling him contrary to the good and wholsome Advice of all the Liegemen of England and have not blush'd nor been afraid impudently to assert and prefer their own foolish Councils as if they were more fit to consult and preserve the Commonweal than all the Estates of the Kingdom together assembled so that it may be truly said of them they are the men that troubled the Land and disturb'd the Nation under a false colour of gravity have the whole People grievously opprest and under pretence of expounding the antient Laws have introduced new I will not say Laws but evil Customs so that through the Ignorance of some partiality of others who for reward or fear of great Men have been engaged there was no certainty of Law and they scorned to administer justice to the people their deeds are deeds of wickedness the work of Iniquity is in their hand their feet make hast to evil the way of truth have they not known what shall I say there is no Judgment in their paths build their Houses in injustice and their Tabernacles in Unrighteousness Wee be to them that covet large possessions that break open Houses and destroy the Man and his Inheritance Woe be to such Judges who are like Wolves in the Evening and leave not a bone till the morning The Righteous Judge will bring such Counsellors to a foolish end and such Judges to confusion ye shall all presently with a loud cry receive the just sentence of the Land At the hearing of these things all Ears tingled and the whole Community lifted up their Voice and mourned saying Alas alas for us what is become of that English Liberty which we have so often purchased which by so many Concessions so many Statutes so many Oaths hath been confirmed to us Hereupon several of the Criminals withdrew into secret places being concealed by their friends some of them were brought forth into the midst of the People and deservedly turned out of their Offices one was banished the Land and others were grievously Fined or Condemned to perpetual Imprisonment This is confirmed by Spelman An. 1290. All the Justices of England saith he were An. 18. Ed. 1. apprehended for Corruption except John Mettingham and Elias Bleckingham whom I name for their honour and by Judgment of Parliament condemned some to Imprisonment others Banishment or Confiscation of their Estates and none escaped without grievous Fines and the loss of their Offices FINIS
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