kind of voluntary killing for whom there was no mercy by Gods Law as it is in the Margent of the Great Bible Wilful Murther cannot be pardoned without Gods high displeasure Nay as it is more fully in the Text it self Thine eye though the most compassionate sense shall not spare him but thou whoever thou be shalt put away innocent blood from Israel that it may go well with thee Now the putting away of Innocent blood is by revenging it on him that spilt it as it is in the 10. v. of the same Chapter That Innocent blood be not shed in the land which the Lord thy God giveth thee to inherit and so blood come upon thee that is that the Blood of the party slain be not imputed to thee This Imputation of blood which is of more weight than the Imputation of all Adams sin because the command is more immediate and legible to us it concerned all the Israelites in general but more especially doth it concern those chosen by Law to make Inquisition after Innocent blood unlawfully and wilfully shed as principally Grand Jurors are for whose sakes and that the following discourse may fix the better upon their Judgments and thereby make a right impression upon their Consciences to be more circumspect and careful in their Presentments in cases of Blood I have premised as I conceive what was the will and Law of God as he himself hath declared it and left it upon Record to us in his Judicials to his people Israel who received Laws and Judgments from God himself for their whole model and system of Political Government agreeable to which I might add the mind of our Saviour Christ under the Gospel who is the best Interpreter of the Law in bidding Peter put up his Sword and his interpretation upon the sixth Command He that is angry with his Brother unadvisedly shall be culpable of Judgment I shall in the next place endeavour to manifest how parallel the Laws of England have been and are to the Judicial Laws of God in the punishing of Murther and shedding Innocent blood and extending mercy where it is done praeter intentionem unawares and by misfortune or in the necessary defence of a mans own life or property and what Asylum is provided for such and how the course and practice of the Laws of England ought to be in presenting and making Inquisition by Grand Jurors after the same Not to look so far back to find what the Laws were in case of Felony and Murther as to the time of the Saxons Heptarchy in England when the Monarchy had many heads being Bellua multorum Capitum and so for the most part had so many several Laws each Prince either pleasing his own humor or adapting his Laws to the condition and quality of the people he had to govern which as they differed in their qualities and constitutions as much as the several Winds differ the several Climates from whence they blow out of the four Corners of the world from whence many of their Kingdoms were differenced and distinguished by names so did they differ in the nature and quality of their Laws some of the Saxon Kings had excellent Laws as Ina as saith Venerable Bede who flourished in that Kings time The mulct or breach of Peace was forty shillings in the Mercian Law In the West-Saxon Law fifty shillings The punishment of a Free-man was pecuniary and loss of liberty of a slave by whipping Treason against the Lord was Capital and could not be appeased with mony Amongst the Laws of Canutus the King it is said Si quis in Regia dimicaret Capitale esto nisi quidem Rex hoc illi crimen condonarit If any should quarrel or fight in the Kings Palace it was Capital except the King remitted the fault They were unwilling to put any man to death because of lessening their strength being so much divided that for the most part there was an aestimatio capitis a certain sum of mony or Corporal punishment set upon every Murtherer and Felon respecting the quality of the person killed or he that killed him yet amongst them there was strict inquiry after Blood by punishing the offender according to their Laws And to look for it amongst the Danes and their Laws would be to as little purpose for as it is well observed by Mr. Lambert Temporibus vero Regum Danorum sepultum fuit Jus in regno Leges Consuetudines simul sopitae temporibus eorum prava voluntas vis violentia magis regnabant quà m Judicium in terra In the time of the Danish Kings Right was buried Laws and Customes were laid asleep together the depraved Will Strength and Violence did reign and rule more than Judgment in the land Yet to make some amends we have it by good Tradition that good St. Edward the Confessor the last King of the Danes that was King of England yet of Saxon blood Collected out of the Danish Saxon and Mercian Laws an universal and general Law whence our Common Law is thought to have had its original which may be true of the Written Laws not of the Customary and unwritten Laws these being certainly more ancient Some say that Edward the Third before the Conquest set forth the Common Law called the Laws of Edward to this day which St. Edward espoused as his Act and falling last upon the work He carries the name One says King Canute composed our Common Law which St. Edward the Confessor observed This King Edward the Confessor was in his life of that Holiness that he received power from above to cure many Diseases amongst others the swelling of the Throat called by us The Kings evil a prerogative that continueth hereditary to his successors Kings of England to this day the powerful effect whereof hath been most eminently manifested by the Touch of our most gracious King that now is since his happy Return into England upon very many thousands some to my knowledge that formerly derided that occult personal Kingly vertue inherent to the Imperial Scepter of England being of St. Thomas his faith that would not believe except they felt now remaining fully satisfied of the truth thereof from their own experience of the cure upon themselves The aforesaid St. Edward for his holiness charity and good actions was Canonized for a Saint having reigned over England twenty four years The Kings of England at this day in their Coronation Oath taken at the high Altar swear especially to observe and keep the Laws of this St. Edward These Laws so collected by this holy King Edward were by William the Conquerer to whom he had bequeathed this Kingdom of England by Will though afterwards he was forced to get it by the Sword confirmed in these words Hoc quoque praecipio ut omnes habeant teneant legem Regis Edwardi in omnibus rebus as Mr. Lambert hath it inter leges Gulielmi
Notwithstanding he informs us that this King William post acquisitionem Angliae after he had obtained and setled the Kingdom in peace in the fourth year of his Reign Concilio Baronum suorum by the advice of his Nobility he caused to be summoned throughout England the Nobles Wisemen and such as were skilful in the Laws Rights and Customes of England and elected twelve Knights out of every County who were sworn before the King to make a true Collection of the said Laws and Customes Nihil praetermittentes nil addentes nil praevaricando mutantes Amongst these Laws we do not find Murther punished with death It being so near the time of the Danes and Saxons it seems he made no violent alteration of their Laws but kept their custome of aestimatio Capitis or Corporal punishment We find amongst his Laws these words Interdico etiam ne quis occidatur vel suspendatur pro aliqua culpa sed eruantur oculi abscindantur testiculi vel pedes vel manus itaquod truncus vivus remaneat in signum proditionis nequitiae suae I command that none be killed or hanged for any offence but that his eyes be put out and his Testicles or feet or hands be cut off so that the Trunk of his body may remain alive in token of his Treason and wickedness any punishment then but loss of life and banishment for it is said amongst his Laws Prohibeo ut nullus vendat hominem extra patriam I forbid that any person be sold out of his Country Now although that these kinds of punishments are not commensurate to the offence or to the Law of God or to the Laws of England in cases of Murther there being not life for life yet who is there almost amongst the Sons of men that would not rather chuse to be hanged than to have his eyes put out his Testicles feet and hands cut off and to survive with such a brand of Ignominy Amongst the Laws of the Conquerer in the Title Lex Murdrorum it is there found If any be found Murthered the Village in whom he was so found was within eight days to deliver the Murtherer Justiciae Regis if he were not found within one Month and a day the Village was to pay forty marks if the Village were not able then the Hundred was to pay it and this mony was to be sealed up under the Seal of a Nobleman of the County and sent into the Exchequer there to remain a year and a day to the end that if the Hundred or Village could within a year and a day bring the body of the Murtherer to Justice they should have their mony again if they could not within that time take him the Parents of him that was murthered should have six mark and the King the rest if he had no Parents then his Lord or Master should have it if no Lord or Master then Selagus ejus i. e. fide cum eo ligatus that is his Pledge or Surety if he had none of these then the King should have all the forty Marks which was as much then as five hundred pounds now sub cujus protectione pace degunt universi If the Murtherer were found and would not defend his Innocency Judicio Dei scilicet aqua vel ferro that is stand in hot scalding-water or pass barefoot over hot-bars of Iron fieret de eo Justitia let Justice be executed up on him but what this Justice was or what punishment he should suffer some doubt there is Some say it was ad voluntatem Regis or the usual way of aestimatio Capitis or Corporal punishment and not to suffer death because as before is observed there is found amongst those Laws Ne quis occidatur vel suspendatur pro aliqua Culpa though others are of another Judgment that it was Capital if the King pleased whatever the punishment was you shall not read of any Insurrection or Rebellion before the Conquest when the view of Frank-pledge and other ancient Laws of this Realm were in their right use There are many that are full of Sr. Moore 's kindness and think it too much that a man should lose his life for crimes under Murther as for Theft c. but none so kind to a Murtherer for which anciently a loss of a Hand Eye Leg or other member was in use yet the party taken in the manner hand habend having the stoln thing in his hand in his possession might be killed amongst the Saxons he could not buy his Crime out and the Spanish condemning to the Gallies is thought by some the only way Mr. Daniel will have it that as yet writing of King Henry the Second's time they came not so far as Blood which is not so for King Henry the First abrogating the were-gilde by which a man might have bought out his offence made a Law says Hoveden Vt si quis in furto vel latrocinio deprehensus fuisset suspenderetur to hang the Thief with whom Vigorniensis and Rad. Niger agree And the Lo. Coke observes in the third Institutes that before the Reign of King Henry the First the Judgment for Felony was not alwaies the same but King Henry the First ordained by Parliament that the Judgment for all manner of Felonies should be that he should be hanged by the neck until he be dead After in the latter end of the Reign of King Henry the Third we find a Thief who had stoln twelve Oxen beheaded Capital punishments have not only been in use against Homicides and Felonies but other Transgressors also and amongst those who worshipped God rightly as is well observed we meet with no Divine precept before Judah which makes Whoredom worthy of death yea when he is told Tamar thy Daughter in law hath played the Harlot he answers Bring her forth and let her be burnt Amongst the Britains if the Wife killed her Husband she was to be burnt so are the English Laws to this day We may proceed says Grotius by conjecture of the Divine will with the help of Natural reason from like to like and that which is a Law against Felonies and Murthers may be extended to others as dangerously mischievous It is a hard dispute whether there be more mercy in death or putting out of Eyes cutting off Legs Arms c. or in the Gallies It is believed that the boldness and number of Malefactors begot the Law of death and those whom Death with so much Infamy so often reiterated before their eyes cannot fright will never think any Torment whatsoever where life is left them though with more misery than can be spoken terrible It is well observed by the Lo. Coke that Videbis ea saepe committi quae saepe vindicantur Those offences are often committed that are often punished and he gives his Reason for it That the frequency of the punishment makes it so familiar as it is not feared For Example
am not of their Opinion That the words ex malitia praecogitata came into Indictments immediately after the aforesaid Statute of 23 H. 8. Certainly there were Murthers committed and that frequently of malice fore-thought before the making of that Statute and those Murtherers had their Clergy also otherwise that Statute had never been made to take it away If the Grand Jurors shall say They will not find those words Ex malitia praecogitata put into the Indictment except the malice be plainly proved to them then farewel that distinction and inference of implied malice which the Law makes in many Cases and which otherwise cannot be made they may as well say That they will not find such words Treason that are Treasonable because no Act of Parliament or express Case at Common Law says those particular words are Treason or that they will find no Indictment of Burglary although the Goods stoln be found with the Thief and the dwelling House broke because no Witness stood by to see the breaking of the House entring into it and stealing thence the Goods Or against a Cut-purse though the Purse or Mony be found in his hand or because none see him take it forth of his Pocket or to find the Indictment because it is laid to be done Vi armis with force and arms and yet said to be done in the same Indictment clam secrete sine notitia privily secretly and without notice of the party which in Fact could not be done if it were done by force or arms Or to find an Indictment of Robbery done upon the High-way against those that rob in Vizards notwithstanding the mony be owned and found about them because the party cannot swear he saw their faces and that these were the men Or that such a one kill'd a man that comes out last from him with a bloody Sword in his hand and no person besides with him In all these Cases it is possible the Parties accused might find the Goods stoln and so might the bloody Sword be sound and another do the Fact but sure here is great and violent presumption sufficient for an Accusation for a Grand Jury to find an Indictment which is but an Accusation upon Record to bring the Delinquent or Party so strongly suspected to a Judicial Trial and as well may it be presumed when one Christian is kill'd by another it may be Murther that there may be a seed of malice in the will of him that did it by a voluntary and spontaneous motion in that act that may upon a greater Debate contain some circumstance in it that by some reason in Law better known to the Learned Judge than the Grand Jurors that may in Law prove malice expressed or implyed in the criminous Person And if it be so difficult in cases of blood for Grand Jurors to determine what is Murther and what is not let them consider how dangerous a thing it is for them to miscarry in their Presentment in cases of blood of innocent blood as is before manifested and so acquit the Murtherer and take the imputation of blood-guiltiness with them from the Assizes to their respective Families where it may and will cry against them and the whole Kingdom for vengeance I do therefore submit it to their serious consideration upon what hath been said Whether it be not much better and a safer way for them to submit their Judgments herein to the Rule of Law and the Resolutions of the Learned Judges than by their extenuating presentment for the Court can go no higher than they present to stifle Justice in the birth and to acquit a Murtherer For the Indictment although no part of the Trial yet is the very Basis and Foundation of all the other Proceedings And let them consider how strict formerly the very Law of England was in King Edward the Second's time in cases of blood where the very will and intent to kill a man although it was not executed was punished for the Deed although the party wounded recovered of his wounds A memorable Case there was in that King's Reign cited by Justice Stamford where one compassed the death of another and did so grievously wound him that he left him for dead but afterwards the party recovered this was then adjudged Murther because his will appeared so plainly to have kill'd him For as Bracton says In maleficiis spectatur voluntas non exitus then was the Will by our Law as it is yet before God reputed for the Deed But now our Law couples the Will and the Act together in cases of blood but looks more upon the Act than the Will For though the Will do neither intend the Act as it is done nor approve of it after it is done yet if the Will in any part of the Act be criminous it makes the Offender in our Law in cases of blood guilty of the whole Fact with all the obliquity and evil in it As if a man intend only to beat another to strike him but not to kill him and the party die of the stroke it may be murther in him that gave the stroke So if three men come to make a Disseisin and one of the three kill a man the other two persons are guilty as principals in the murther although they neither consent to it will it or strike the Party nor came with that intent but only were in company to have done another Act. So if one to kill his Wife give her lying sick Poyson in a roasted Apple and she eating a little of it give the rest to a little Child of theirs which the Husband lest he should be suspected suffereth the Child to eat who dieth of the same poyson this is murther though the Wife recover for the Poyson ministred upon malice prepensed to one which by a contingency procureth the death of another whom he meant not to kill nor bear any malice to shall be as great an Offence as if it had taken the effect which he meant proceeding from a naughty and malicious intent So where two men combat together upon the evil and provoking words of a woman and the one killeth the other the woman in this case was Arraigned of the death of him that was kill'd and in this Case the Grand Jurors found it murther So if an ignorant person take upon him to give Physick to one that is not well and through his ignorance administreth that unto him that apparently kills him this is murther And so it might be instanced in many similar Cases which are not to be disputed by Grand Jurors but presented by them in re forma as the Indictment is advised by the King's Council and comes to their hands where they find as before is said a criminous Party in the Indictment and a Body found of a reasonable Creature certainly or probably kill'd by him although the Evidence be not express to every circumstance of aggravation as it is laid down in
upon the Country de bono malo the very words of the Act and that is upon a Jury of Life and Death and this he cannot do except the Grand Jury find the Bill of Indictment Murther or Manslaughter let the matter of fact be what it will for if the Grand Jury shall but find the truth of the fact as it appears in evidence to them or from their own knowledge which is that which they now so much stand upon that is the very special matter that makes it Manslaughter by misfortune or se defendendo the party can never come to be Arraigned upon such an Indictment for that is not Felony and if he shall be charged with it the Grand Jury having only found the special matter in the Indictment or Inquisition the party must either plead guilty or not guilty either confess and justifie the Fact or deny it if he confess he cannot Justifie it for mens lives are so precious in the eye of the Law that the death of a man cannot be Justified except in course of Justice in a lawful War or in a just defence of a mans life and property against such as would rob or designedly murther him The Defendant in Appeal cannot Justifie the death of a man at his own suit se defendendo but must plead not guilty Nay a Verdict of the Jury of Life and Death that A killed B se defendendo or per Infortunium is no good Verdict the special matter must be set down in writing by them that the Court may judge the killing to be upon inevitable necessity neither Grand Jury that hears but one side nor Jury of Life and Death that hear both sides are Judges in this case For upon the special matter found by the Jury of Life and Death if the Court shall not adjudge that special matter good in Law to acquit him of Murther or Manslaughter it may be either murther or manslaughter in him and the party may be hanged notwithstanding such Verdict of the Jury of Life and Death how can the Court be judge of the matter in Law when they hear not the matter in fact from the Witnesses on both sides and the Parties defence for himself which they can never do if the Grand Jury shall take upon them as they presume they may to find the Special matter themselves whereby the Party cannot be Arraigned that so he may put himself de bono malo super patriam as the Statute of Gloucester before-mentioned especially requires If the Party charged with such an Indictment from the Grand Jury where they will find only the Special matter shall confess it when he is charged with it as sure he may then the Evidence can never be heard in Court whereby the Judge may determine the point in Law whether the offence upon the whole matter be Murther or Manslaughter or as they find it and that is meer matter of Law whether super totam materiam of the Evidence and that must be Evidence on both sides it be murther Manslaughter in general Manslaughter upon the Statute per Infortunium se defendendo justifiable as against a Thief or in loco tempore belli and how exceeding dangerous and inconvenient were it for Grand Jurors so far to anticipate the Judgment of the Court and to take upon themselves upon the hearing only of Witnesses on one side and perhaps not all of them neither the sole Judgment of Law in all these Cases by not finding the Indictment which is but the Kings Declaration for the loss of his Subject in the same manner as it is advised by the Kings Council Ingrossed sworn in Court and delivered to them especially for that is alwaies intended where they have probable Evidence for they need no more to prove such a person killed by the hands of such a person such a day year and place Nay by the Statute of Gloucester they must either find the Indictment in such a case Murther for all Indictments about the killing of a man were so before that Statute and no Law since to alter it or the party can never have a Certiorari out of Chancery for his Pardon of Course whereby he may be discharged out of Prison for by the strictness of Law he ought to remain in Prison without Bail until his pardon be procured which Pardon saves not his Goods or personal Estate but only pardons his Offence his violation of the King's Peace which is violated in the loss of a Subject according to the Statute of Gloucester and procures his liberty and discharge out of Prison The words contained in the Writ of Certiorari out of Chancery in order to the obtaining of a Pardon of Grace and removing the Record into Chancery that there the King may see by the Record the truth and nature of the offence according to the Statute of Gloucester being well observed make it very plain that the Special matter of Fact must be found by the second Jury the Jury of Life and Death and which is so suggested in Chancery before the Issuing forth of such Writ as by the Writ more fully appears viz. Quia ut accepimus quòd A. B. indictatus per Inquisitionem patriae compert extitisset quod idem A interfecit praedict C. se def non per feloniam aut malitiam praecogitat unde dictus A. Gaol nostr praedict remiss est ad gratiam nostram iude expectand nos ea de causa super tenor Record process Inquisitionis praed Certiorari volentes vobis mandamus quod si ita est tunc tenor Record pro process praedict cum omnibus ea tangent in Cancell nostram sub sigillis vestris distincte aperte mittatis Observe how this ancient Writ complies with and explains the Statute of Glouc. in this case here is in it Indictatus that is by the Grand Jury and per Inquisitionem patriae compert exâ—itisset that is the Jury of Life and Death for that is the only Trial in our Law by the Country per Patriam and whoever is tried by that Jury posuit se de bono malo super patriam which must be for Felony and Murther the very words of the Statute for this Jury is to find in their Writ that it was se defendendo non per felon aut malitiam praecogitat as it is in the Verdict and observe by the Writ he is not to be discharged out of Gaol before his pardon of Course procured for it is in the Writ Gaol nostrae praed remiss est it seems he was there before ad gratiam nostr inde expectand c. and further observe the Mandamus in this Writ si ita est if it be so that the Offence hath received such a trial by two Juries then Certifie the Record otherwise not and what Judge that doth not truly understand this si ita est which he can never truly do from a Grand Jury will Certifie such a
a more diligent inquiry after Such distinctions and directions from the Judge being much more proper for a Jury of Life and Death when any Question of Blood comes before them to be considered of and to be tryed and determined who have the only means to do it by hearing all Parties all Evidence on both sides as also the directions of the Court as to the quality and nature of the Offence to give them a true light to make a right distinction therein It is well said by a Learned Writer of the Law An Indictment is an Inquiry finding some Offence against the King It was the Kings Action whereupon the Party shall be Arraigned or put to Answer by the King and tryed by another Jury Every strong suspicion of such an Offence though it be in case of Felony appearing of Record hath the force of an Indictment as in an Action of Trespass for Goods carried away if the Defendant plead Not Guilty and be found Guilty he is a Felon c. So in an Appeal of Murther if the Plaintiff after Declaration be Non-suit the King shall proceed upon that Appeal as upon an Indictment found So He. And as it is in Doctor and Student The Grand Jury is only charged with the effect of the Bill viz. whether he be guilty of the Felony or Murther in the Indictment within the Shire and not whether he be guilty modo forma as in the Bill is specified And so when they say Billa vera they say truly as they take the effect of the Bill to be so it is though the Bill vary from the day year and place so it vary not from the Shire as if there were false Latin in the Bill they might well say Billa vera for their Verdict stretcheth but to the Felony not to the truth of the Latin There is very much difference in Law betwixt an Inquiry and a Trial betwixt a Presentment and a Conviction besides the Judges do now give it in charge to the Grand Jurors and so part of their duty if not of their Oath that when they have such an Indictment of Murther come to their hands if they find upon their Evidence that the party said to be slain in the Indictment by the person there charged with it with the time and place and manner how they are to enquire no farther into the nature of it what offence this is in Law but to find it as it stands in the Indictment which for ought they know upon a further and more clear discussion of it in Court may appear as full as it is laid in the Indictment however it passeth fairly out of their hands they may more clearly than Pilate wash their hands in Innocency from the Innocent blood of such a person and very well discharge their Oath the Law and a good Conscience letting it pass from them with the Indorsment of Billa vera a Bill that hath truth in it fit to be considered further by the Court and another Jury And as Indictments at the Kings Suit do succeed Appeals at the parties Suit so ought they to be drawn and presented as large and as full for the King as an Appeal of death for the party which ever was for Murther if the party Appellant would so have it and that may very reasonably be applied to Indictments that the Statute of Gloucester directs in Appeals viz. That no Appeal shall be abated so soon as they have been heretofore But if the Appellant in an Appeal do declare the Deed the year the day the hour the time of the King and the Town where the Deed was done and with what weapon he was slain the Appeal shall stand in effect Now so great an exactness of the year day and hour is not required in an Indictment as in an Appeal being the only violent prosecution of the party in favour of life many Niceties were stood upon more than in other Actions And Mr. Justice Stamford says A man is not of necessity compellable at Common Law at this day to put into his Declaration the hour the day was necessary to be put down in an Appeal for if the Appellee can prove by certain Demonstrations and Testimony of credible Witnesses that he was the same day at another place at such a distance as it was not possible for him to be there the day of the committing of the fact or twenty miles off the same hour the murther was committed the Appeal shall abate Yea so many were the Niceties of Appeals which formerly were in use not only in Murther but in all cases of Felony and so full of Bribery and corruption in the easie composition of all sorts of Murthers and Felonies and did so much delay the Kings prosecution by Indictment which was not to begin until the year and day past after such Felony and murther in which time commonly the Appellant grew slow in his prosecution and was many times agreed with and by the end of the year Witnesses were dead and gone all was cold and forgotten as also that the Appellant must sue in proper person which suit was long and costly and made the party Appellant weary to sue For remedy whereof the Statute of the third of H. 7. was made That the King shall not stay until the year and day were past but proceed at any time after the Murther committed as also that the Appellant shall proceed in his Appeal by Attorney all helps the Law could devise to prevent delays in cases of Murther and to find out and punish the blood-guilty person observe the penning of that Statute were there nothing else to be said in this Argument how necessary it is that all Indictments be made Murther that are brought at the Kings suit within the year and day as the King by this Statute is enabled to do the words whereof are as followeth And if it happen that any person named as principal or accessary be acquitted of any such Murther at the Kings suit within the year and the day that then the said Justices shall not suffer him to go at large but either remit to Gaol or Bail him at discretion until the year and day be past And further in the said Statute it is said If the MURTHERER escape the Town shall be amerced as also that the Coroners shall return their Inquisitions before the Justices of Gaol-delivery and they shall proceed against such Murtherers and as it is before in the said Statute The King shall not stay until the year and day were past but proceed at any time after the Murther committed So that prima facie the Statute looks upon all Manslayers unlawfully to be guilty of Murther And so the Indictment ought to be drawn or they cannot be continued in Gaol nor Bailed by this Statute until the year and day be out nor the Town amerced for such escape nor the offender proceeded against by the King within the year and day
by Indictment Now generally in these days since the making of that Statute all proceedings in Murther and Felony are by Indictment at the Kings suit not but that the prosecution by Appeal is still in force and the party hath his election which way he will proceed either by Appeal at his own suit or by Indictment at the Kings suit yea even after the Trial had by the Kings suit in some cases although at the Kings suit they have been acquitted of the murther but that the abuse of these and many other obsolete Laws hath taken away the frequent use of them except it be through the miscarriage of Grand Jurors and Jurors of life and death in cases of murther the one in not fully presenting the murther the other in not conscientiously giving a Verdict according to their Evidence and thereby provoking the party whose Relation is slain to the nice and chargeable remedy of an Appeal upon such Appeals several have been executed after they have been acquitted by trial at the Kings suit upon Indictment one Woman in my time in Berkshire for petty Treason for killing her Husband after she had been acquitted for the same fact at the Kings suit by Indictment was convicted upon the Appeal and burnt at a stake Look how high the Appellant shall draw his Appeal against the Appellee or Defendant as if for Murther in this case if the Appellant shall surcease to prosecute such Appeal as by Nonsuit Release Retraxit the Woman by marrying a Husband pendente lite or by the Act of God as if the Appellant die or by the Act of the Law as if the Appellant take the priviledge Now in all the former Cases where the Appeal ceaseth by the Act of the Appellant that is he that prosecuteth the Appeal after declaration in the Appeal the Defendant shall not go at liberty but shall be Arraigned upon the same Declaration at the Kings suit for that it doth appear by the Declaration there is a Murther committed and the year day and place when and where the same was committed and the same is not tried and the Law will not allow such great Offences whereof it taketh notice to be concealed and remain unpunished neither will the King at his suit suffer it to be extenuated into a lesser degree of Murther than the Appellant did so careful have the Laws ever been in punishing of Murther and revenging Innocent blood which it seems and as before is observed whilst Appeals were in use and the Kings suit must stay until the year and day were past many Murtherers escaped unpunished and the killing of men was made as now it is a trick of Youth Valour Hectoring and Jest in regard of so great impunity it found by frequent Pardons Indulgence of Grand Jurors and others And truly it is much with us in this Age as it was in those daies when Appeals were in use and had the preheminence of the Kings suit Never more killing of men by Duels Tavern and Game-house Quarrels and yet never more impunity to such Mankillers such valiant murtherers of their fellow Christians especially if the Mankiller have either a fame for Honour or Valour Mony or Interest of Friends to procure pity or pardon and compassion from the Grand Jury to find it Manslaughter if they will go so high where it is Murther and then through that false glass to represent it to a most Merciful King and thereby obtain a Pardon for the whole offence or else upon his Arraignment shall confess the Manslaughter and procure a respect of his burning in the hand because a Gent-hand killed the man and afterwards procure a Pardon for that burning in the Hand which the King may grant it being no part of the Judgment but a notifying the Person that by that Mark he may be known again once to have had his Clergy that he may not have it a second time Many Recent and fresh Instances in particular Cases of blood might be given were it safe or seasonable to make reflections of divers Murthers that have too easily slipt through the hands of Justice by the aversness ignorance or partiality of Grand Jurors in not observing the direction of the Judges in this particular of finding Bills Murther instead of Manslaughter yea and that many times upon directions given in Court after open Evidence which open Evidence to a Grand Jury especially in Cases of blood ought to be avoided as much as may be in regard it doth too much lay open and betray the Kings Evidence to standers by it may be Friends of the Prisoner that may make too much use of it for the benefit of the Prisoner and prejudice of truth besides many Witnesses although upon their Oath will not speak so fully in Court before the Bill found and happily in the presence of the Party or his Friends as in a Grand Juries Chamber more private besides where it is before-hand known what witness-pinching endeavours will be used to keep him off or by some sinister way to be complied with to lessen or hinder his Testimony to the second Jury if there be occasion besides the Kings Evidence before Issue joyned betwixt the King and the Prisoner is alwaies to be secret only open to the Grand Jurors who are alwaies styled Juratores pro domino Rege the Kings Jury and are sworn to keep the Kings Counsel their Felons and their own now the Witnesses for the King are said to be of the Kings Council which would abate much of their Oath if Evidence and the Kings Informations in Cases of Bloud should be open and common And as you have heard what great Inconveniences were in the use and abuse of Appeals in the Reign of King Henry the Seventh so indeed as many if not more Instances of mischief and inconvenience might be given of Grand Jurors in this Age the best things corrupted proving the worst you may conceive what great complaints have formerly been made against Grand Jurors in Parliament in erring upon both hands by taking too much liberty to themselves and not observing the directions of the Court that there was a necessity of making an Act of Parliament in the 3 H. 8. immediately after Appeals began to fall off as you may read in that Act of Parliament made to reform them and to reform the Sheriffs power in retorning them the whole Authority of retorning Inquests to take Indictments being by force of the Statute of the 11 H. 4. in Sheriffs and Bayliffs of Franchises It is observed by the Statute of the 3 of H. 8. that by reason of Bribing of Sheriffs and their Bayliffs and Officers many true and substantial persons were divers times wrongfully indicted of Murther Felonies and other Misdemeanours to the utter loss of their Lives Goods and Lands And sometimes also great Felonies and Murthers were concealed and not presented by the Grand Jurors partially retorned by the Sheriffs or their Ministers for the prevention whereof it was
Dier 59. g Jurato creditur in Judicio And to say the truth saith the Lord Coke we never read in any Act of Parliament ancient Author Book-case or Record that in Criminal Cases the party accused should not have Witnesses sworn for him and therefore there is not so much as Scintilla Juris against it Cok. 3. Inst fol. 79. Finch 25. Case of presentment and Indictment h In ancient time it was usual to Arraign one taken in the manner without any Appeal or Indictment i Doctor Student lib. 2. cap. Abridgment 6 E. 1. 9. 3 H. 7. c. 1. MURTHER 3 H. 7. c. 1. 3 H. 8. 3 H. 7. 11 H. 7. c. 3. k Coke 3. Inst fol. 26. 1. Inst Sect. 194. Fortescue c. 26. 72. Stamford l. 2. fol. 90. l The Judges did advise in drawing the Indictment against Leak 4 Jac. Coke 3. Inst Tit. Treason fol. 16. m Bracton 's Order in le Suspicion ou Endictments del Felons lib. 3. cap. 22. paragr 1. fol. 143. Stamf. fol. 97. v. Mackally's Case li. 9. fo 67. n Murther is a wilful killing of a man upon malice forethought but this must either be expressed in proof or implied by Law it seemeth to come of the Saxon word Mordren which so signifieth and Mordridus is the Murtherer even to this day amongst them in Saxony from whence we have most of our words Or it may be derived of Mort est dire as Mors dira Terms of the Law title Murther fol. 207. o Si sit aliquis qui mulitrem pregnantem percusserit si puerperium non formatum vil animatum fuerit maximè si animatum fecit homicid Stamf. fol. 12. In this fol. you shall find Justice Stamford using the words homicid murdrum as signifying the same v. Stamf. fol. 21. c. 13. Coke li. 9. fo 67. 6. in Mackally's Case 3. Inst fol. 57. 3 Inst fol. 56. 22 Ed. 3. Coron 263. p Murther is interpretative in the Law and not to be left to Grand Jurors opinions q Aliquando vero clanculum nemine vidente ita ut sciri non possit quid sit actum hujusmodi homicidium dici poterit Murdrum Stamf. 6. 1. fol. 12. Hales Petty Case in his Comment Terms of the Law Felony 160. fol. 4 Ed. 1. 2 Ed. 6. c. 24. 4 H. 7. c. 13. r When Clergy began appears not by any Common Law book it takes its root from a Constitution of the Pope that the Priests should not be accused before a Secular Judge Co. Magna Charta 636. It hath been confirmed by divers Parliaments and so favourably used by the temporal Judges that it hath been allowed to all Lay-men that could read which is more than the Common Law requires Stamford fol. 123. The first that mentions this Priviledge at Common Law is Bracton that wrote in the time of King Henry the Third Bracton lib. 3. fol. 123. The next is the Statute of Westm 3 Ed. 1. c. 2. By the Popes Constitutions the Priviledge of Clergy extended to all Offences whatsoever and the Prelates of England by Colour thereof did claim the same as generally vide 9 Ed. 2. Articuli Cleri Yet within this Kingdom Clergy was allowed only in Cases of Murther petty Treason and Felony not in Treason against the King himself 23 H. 8. c. 1. s That is voluntary and of set purpose though it be done upon a sudden occasion for if it be voluntary the Law implieth Malice Coke 3. Inst fol. 62. t Within five years of the time of King Henry the Second there were above a 100 Murthers by Priests and men within Holy Orders u The Exemption of the Clergy taken away by the Laws of Clarendon Graft 1187. Cok. lib. 9. 69. Plow Com. 101 22 H. 8. c. 19. 22 H. 8. c. 14. 25 H. 8. c. 3. 28 H. 8. c. 1. 32 H. 8. c. 3. 1 Ed. 6. c. 12. Poysoning murther although no malice be proved 2 Ed. 6. c. 24. Cok. l. 9. f. 117. 5 Ed. 6. c. 9. This is not much pertinent to this purpose but that it takes away Clergy and relates to several Statutes before mentioned concerning murther 5 Ed. 6. 25 H. 8. c. 3. 1 Ed. 6. c. 12. Cok. l. 11. f. 31. Stat. 2 3 P. M. c. 17. Stat. 4 5 P. M. c. 4. Dier f. 183 186. Cok. I. 11. f. 35. 1 Jac. c. 8. 21 Jac. c. 27. 1 Jac. c. 8. 21 Jac. c. 27. x Note this here the Grand Jury find as it is laid in the Indictment by the Kings Counsel that the Child was born alive although they have not the least Evidence for it and yet I trust they are not forsworn y Sir Wadham Windham Kt. one of the Justices of the Common Pleas. z The name of Murther was not changed but the Law retains it continually for the heinousness of the Crime Stamford fol. 19. If not the name then not the words that make it so 23 H. 8. Stamf. fol. 17. Pl. Coron Tit. Coron Fitz. V. 15 Ed. 2. p. 383. Vid. Tit. Memorat p. 331 350. Hales Petit Case le Com. 261. a. 18 El. Pl. 474. 22 H. 8. c. 14. made perpetual by 32 H. 8. 3. Brook Challenge 217. 33 H. 8. 1 2 Ph. Mar. Hil. Ja. R. Stamford lib. 2. fol. 149. Poulton De Pace fol. 211. 4 Ed. 4. 11. 14 Ed. 4. 7. 6 H. 4. 2. No Forfeiture but of Goods Fit Esch 19. Coke 3 Inst fol. 27. 6 H. 8. c. 6. Stamf. fol. 157. 23 H. 8. c. 13. Every Manslaughter is Felony but not e converso 27 H. 8. c. 25. 1 2 Ph. Mar. c. 13. 23 H. 8. c. 12. Kel fol. 98. 23 H. 8. c. 1. Stamf. fol. ult 6. Coke 3 Inst fol. 18. Stamf. Pl. Cor. 63. 26 Ass p. 52. Coke 3 Inst fol. 53. v. 3 4 Ph. Mar. Justice Dalison 's Rep. Stamf. Pl. Cor. 160. 8 H. 6. c. 29. Stamf. Pl. Cor. 160. 2 H. 5. c. 3. Sr. W. Stamford Kt. one of the Justices of the Common Pleas.