Decemb. 6. 1676. I do allow the Printing of this Book Fra. North. Advice to Grand Jurors IN Cases of Blood Asserting from LAW and REASON THAT At the King's Suit in all Cases where a person by Law is to be Indicted for killing of another Person that the Indictment ought to be drawn for Murther and that the Grand Jury ought to find it Murther where their Evidence is that the Party intended to be Indicted had his Hands in Blood and did kill the other Person By ZACHARY BABINGTON Gent. GEN. IX 6. Quicunque effuderit humanum sanguinem fundetur sanguis illius ad imaginem quippe Dei creatus est homo NUM XXXV 33. Nec aliter expiari potest nisi per ejus sanguinem qui alterius sanguinem effuderit LONDON Printed for John Amery at the Peacock against St. Dunstans Church in Fleet-street 1677. THE AUTHOR TO THE Reader HE that reads the ensuing Tract will soon find that much of the beginning of it is by way of Introduction to the Subject-matter of the Book and might well if not better have past under the Title of A Preface and therefore might have excused this in which I shall endeavour to shew the Grounds and Reasons that put me upon this Argument answering all Objections that may he made against the Author for being a Sanguinary Person in treating so positively upon this Subject shew the necessity of determining the Law herein in point of practice by Grand Jurors in Cases of Blood give some satisfaction to such as may object against the length of it whereas the Question is so short explain the Grand Jurors Oath and lastly endeavour to remove all Difficulties made by them upon the said Oath Two Reasons principally moved me to this Vndertaking The one was The great Contests and Differences I have too often observed between the Judges and Grand Jurors about finding of Bills in Cases of Blood whereby the whole matter of Fact with all its Circumstances might receive its full disquisition in Court and not in a Grand Juries Chamber the Grand Jurors as if they were Judges both of the Law and the Fact which is sufficiently demonstrated in the ensuing Discourse they are of neither finding the Indictment sometimes Manslaughter when they should find it Murther contrary to the sense and direction of the Learned Judge and of the King's Council whereby a Murtherer many times escapes The second Reason was That if the Law were not determined in this point betwixt the Judges and Grand Jurors the Consequence must needs be That Grand Jurors that hear but one side would in the end take the matter of Fact from the Second Jury that are proper Judges of it and should try it and the matter of Law from the Learned Judge that should give the Judgment of Law upon it and this is so plainly proved in the ensuing Discourse and hath been so often in practice that I know nothing can be said against it Peradventure some may say Sure he that wrote this Book is Vir Sanguinis that desires such severe Justice against every man that kills another man unlawfully that he must be Indicted of Murther Certainly this is a very great mistake which a considerate Reader or one that delights not in spilling of Blood cannot be guilty of here is no more desired or intended but that every Person that hath had his Hands in Innocent Blood receive a full and a legal Trial according to the Laws of the Land and the Liberty of a Subject to be tried at the King's Suit And I know no Kingdom or Nation in the World whose Subjects have a fairer more impartial and indifferent Trial in such Cases than the Subjects of England have who except as I have shewed they become their own Accusers must be accused by a Grand Jury and convicted or acquitted by another and afterwards if guilty receive Judgment from a Learned and Merciful Judge according to the Law of the Land I know by the Law of God amongst the Jews there was a certain Institution which we call Lex Talionis An Eye for an Eye a Tooth for a Tooth Life for Life and that there were Modifications and Qualifications to abate the extremity of it in several Cases to be considered as I have shewed there is by the Laws of England very parallel to them This is so far from being Sanguinary that I conceive it would rather prove a Remedy than a Mischief rather prevent shedding of Blood than occasion it rather be Lex Praeveniens than Puniens And certainly whoever opposeth this Opinion and proposeth a milder and lighter way of Trial against one that hath had his Hands in the Blood of his Fellow Creature will hardly himself avoid the Imputation of a Sanguinary Person This way proposed will prevent that evil practice too much used of labouring and packing Grand Jurors in point of favour when they are assured before that all Accusations by Grand Jurors for the unlawful killing of a Reasonable Creature must be Murther It would conduce very much to the dispatch of the Business in Court and be a great ease to Grand Jurors that now spend very much unnecessary time in Questions about the Law in such Cases which were better spent in examining the Fact and leaving the matter of Law to the Court. Concerning the necessity of this point to be determined he is a Stranger to the English Laws and to the English Nation that over-looks the just and profitable Consequence thereof there being nothing in this ensuing Tract asserted but what is agreeable as I conceive to the Statute and Common Laws of this Kingdom the best allowed Practice and the Opinions of all the Learned Judges at whose Feet I have had the happiness to sit many years both before the late Civil Wars and since the happy Restauration of our most Gracious Soveraign and agreeable to sound Reason the fullest and best Disquisition after Innocent Blood And who can but allow the necessity of it as to the English Nation at present when Duels are so frequent in England it being made matter of Triumph for one Hector as they call him to kill another if it be but for not pledging a Health or something that looks like an Affront to his Miss in placing her at a Ball in a Play-house the Tavern or the like and this must not only engage the two differing Parties although Persons of Quality to sacrifice their own Lives and sometimes two Seconds or more Persons of as equal quality to lose their Lives in the Conflict or by the Law if Death ensue to any of them in which Contest they are no more concerned than to second their Friend and with their own lives to justifie the Quarrel between the two differing Parties as if both of them had a good Cause and were in the right when as sometimes the Occasion is so trivial not fit for two Boys to dispute As to what may be Objected to the length
of this Tract I have only this to say That it is no more than I have accused my self for and did endeavour to have abstracted and omitted much of it but when I began to do it I was overcome by these Considerations That it was the first Essay of this kind that had been written as a Book That it was not like to meet with all Readers of like Capacities some perhaps might gather much out of a little whereas others would gather but a little out of much and the whole not of many hours reading which might be worse spent and therefore was willing to leave it as I had first framed it although I exposed my self to be censured for it And because Grand Jurors put so great an Obligation upon the Oath they take as Grand Jurors and from that as they conceive frame so strong an Objection That they are sworn to present all such things and matters as shall be given them in charge and that the Judges usually in their charges dilate and declare the Law as to all the several Species and Degrees of Murther Manslaughter c. what every unlawful killing of a man is in Law according to the several Circumstances of the Fact and therefore they as Grand Jurors are bound by their Oath to observe the Circumstances of every Fact before them what it is in Law as well as in Fact and so present to the Court both the Law and the Fact Judice inconsulto This being the greatest Objection that I have heard from any of them against what is here Asserted although something is said as to this Objection in the ensuing Discourse I shall here add something more to clear the point and answer fully that Objection by setting down the Oath of a Grand Juror in terminis as also the Oath of a Juror of Life and Death and explain them both You shall diligently inquire and true presentment make of all such things and matters as shall be given you in charge or shall come to your knowledge concerning this present Service The King's Counsel your Fellows and your own you shall well and truly keep secret You shall present nothing for malice or evil will you bear to any person neither shall you leave any thing unpresented for love favour affection reward or any hopes thereof but in all things that shall concern this present Service you shall present the truth the whole truth and nothing else but the truth So help you God In the first place you see by the Oath they are sworn to be diligent in their Inquiry not to be sloathful or negligent being quickned by their Oath this diligence is to be exercised in an Inquiry and this Inquiry is to be made amongst themselves in what they know of their own knowledge or shall be brought unto them by the Testimony of others As to the matter of their Inquiry which next follows in the Oath and from which they frame their main Objection viz. all such things and matters as shall be given them in charge these words are general things and matters and certainly in the clearest Vnderstanding are intended the general Heads of all Offences by them Inquirable As all Murthers and that comprehends all manner of unlawful killing All Felonies and that comprehends all manner of stealing and so of other general Heads of Offences here Inquirable as Perjuries Forgeries Misdemeanours c. although the Learned Judge where he hath time and leisure doth in his Charge when he speaks of Murther declare the several Species and Differences in that Offence by Law and so of Felony the several manners of Felonies simple and compound And so of other Offences the words of the Oath so much insisted upon by them do no way oblige them by reason of such a Charge to determine by their presentment every nicety in Law that may arise upon every Fact before them otherwise than in that form and matter according to the nature of the Case the Court and the King's Council have framed and presented it to their Inquiry where the single Fact of unlawful killing another c. by the hands of such a one is proved unto them so far as in their Judgments it is fit matter of Accusation to bring the whole matter of Fact and all that may depend upon it to a farther and more full examination as is more fully manifested in the ensuing discourse for should the Judge only give them general heads of Offences in charge as he well may and many times doth without distinguishing the several kinds of them the Grand Jurors would then want a ground for this Objection besides I have ever taken it that not only that which is orally delivered unto them by the Judge but that also that is delivered unto them from the Judge in writing to be by them enquired of is part of their charge and that is every Indictment that is presented unto them or other matter in Writing commended by the Court to their Enquiry The Justices in Eyre that formerly were Itinerant over the Kingdom in whose rooms these Learned Judges succeed ever giving their charge and whatever was enquirable by the Grand Jurors in writing which if so understood as I know not how it will be avoided they are then by their Oath to present all such things as shall be given them in charge and so every Indictment of Murther delivered by the Court unto them is to be found by them where as hath been often said the unlawful killing is so far proved unto them as to make up an Accusation Then it follows in the Oath The Kings Counsel their Fellows and their own they shall keep secret By the Kings Counsel is to be understood any directions the Judge shall in Court give unto them in any matter before them as also the Evidence of Witnesses that shall be produced to them on the Kings behalf in any fact for no other Witnesses must be heard by them and likewise such Counsellors learned in the Law as shall manage the matter on the Kings behalf for no other Council is to be heard by them against the Bill none of this must be revealed or discovered by the Grand Jurors but faithfully kept secret according to their Oath from the party concerned his friends and all others except the Court demand any question from them upon their Evidence so likewise must they keep their Fellow Jurors Counsel and their own that is they are not to discover what any one of themselves have together counselled advised or debated in the business before them against such a person They are the Kings great Council upon this account and all such great Councils where the King is so much concerned take an Oath of Secrecy for otherwise by revealing such Counsels a Traytor a Murtherer and the greatest Felon may escape to the endangering of King and Kingdom and this offence in ancient time was holden for Treason or Felony In George's Case in Anno 27. lib. Ass
upon his Indictment was acquitted but the Lo. Coke in his third Institutes fol. 107. says Certain it is that such discovery is accompanied with Perjury and a great Misprision to be punished by Fine and Imprisonment And it is well provided by the Oath that each Juror is sworn to keep his own Counsel also for he that will not keep his own secrets will hardly keep anothers So much for the matter of the Oath what they are to do It follows in the Oath with what Integrity they ought to do their duty They are to present no person for any offence through any malice they have to the person nor omit any meerly for any favour they have for the person This is so plain it needs nothing but practice these two seem very easie but indeed are very difficult to flesh and blood Not to take revenge when one hath power to do it and not to shew favour when there is power and opportunity to express it not but that a Grand Juror may present another he is at difference withal if there be a real and true cause for it but it must not be done from malice and by way of revenge in presenting such a person before another as guilty Malice and Favour two great enemies to Justice are to be excluded all Courts of Justice as too partial and therefore the Oath well concludes That they shall present the truth the whole truth and nothing but the truth all these three expressions of truth have relation to the fact of Murther or unlawful killing for I shall in this place apply it to that Offence in a legal sense as to legal proceedings The truth that is Truth sufficient to make an accusation against a nocent person The whole truth not concealing any part of it wilfully but so presenting it that the whole matter of fact concerning the unlawful killing another may come in question to another Jury which cannot be unless it be found Murther the Common Law accounting all felonious and unlawful killing a reasonable Creature Murther until the difference and distinction appear upon the Verdict of another Jury that are to try it and the Judgment of the Court in point of Law upon that Verdict Observe the Note in the Margent what that Statute says adjudicetur coram Justiciar It shall be adjudged by the Judges or Justices not the Grand Jury what is Manslaughter per Infortunium and it can never be adjudged by the Judges but when it is tried before them which cannot be upon an Indictment of per Infortunium only as is more fully observed in the following discourse Observe likewise what follows in that Statute Sed locum habeat Murdrum de interfectis per feloniam So that by this Statute all felonious killing is Murther still as it was at the Common Law before and that Statute is not to be repealed by Grand Jurors And as there must not be in the Grand Jury Suppressio veri a suppression or lessening of the truth so there must not be Expressio falsi a false Accusation both are to be avoided and therefore it follows in the Oath And nothing but the truth that is no known falsity no false Accusation against any person must be presented whereby to bring an Innocent person to trial where there is nothing of the fact to be proved against him or any probable Accusation if these three Truths in this Oath mentioned are not to be understood in this legal sense and according to the common practice of legal proceedings in these cases I must confess I am to be instructed how any Grand Juror that hears but one side can satisfie his Conscience that in a plain literal and Grammatical sense he can swear that every Presentment and Indictment that comes from the Grand Jury with a Billa vera contains in it the truth the whole truth and nothing but the truth and this is cleared by the last words of the Oath According to their best skill and knowledge for this must be understood skill and knowledge in the Law and Fact as to the practice and nature of the proceedings of the Law in such cases for it is rather discretio legis than hominis And thus have I according to my best sense and understanding of the Oath explained it and answered the common Objection to it by making it appear that there is nothing in the Oath that any way obligeth them against what I have either here or in the ensuing discourse advised them unto And that this may yet be more evident because I would make it as plain as I can though with too many Tautologies and Repetitions I shall also in terminis set down the Oath of the Jurors of Life and Death by which it doth appear that they only stand charged with the Prisoner as it is exprest in the Oath and the Grand Jury only with the Accusation against him You shall well and truly try and true deliverance make between our Sovereign Lord the King and the Prisoner at the Bar whom you shall have in Charge and a true Verdict give according to your Evidence So help you God Which is to be formally and legally drawn up in the nature of a Declaration at Law at the Kings suit the King being Plaintiff and the Prisoner Defendant which the Prisoner upon his Arraignment either confesseth and then he is convicted without hearing of any Evidence against him or otherwise pleads Not guilty to it to which the King by the Clerk of the Crown joyns Issue by Cul prit viz. that he is ready to prove him guilty and so the Issue being thus joyned Evidence for the King is given against him upon Oath to which he makes his defence in person or by Council if any point of Law arise to which he desires Council and the Court approve of it the Judge being as well of Council for the Prisoner as the King calls his Witnesses if he have any who speak upon their Credits and not upon their Oaths which is much for the advantage of the Prisoner the Law presuming in favour of life the Affirmative proof to be so clear against the Prisoner that nothing in the Negative can be proved upon Oath against it and after a full trial of what can be said and proved on both sides and a convenient time taken by the Jury to consider of it they bring in their Verdict either convict him or acquit him either find him guilty according to the Indictment found by the Grand Jury by hearing of one side or specially as they find the fact by hearing of both sides for they are not bound strictly to the matter and form of the Indictment as the Grand Jury have found it for they may by Law extenuate it to the least degree of offence that can be in that kind but they cannot aggravate it or exceed above what the Grand Jury have found for if they might do so they would become Accusers as well as Tryers
which would be against the Laws and liberty of the Subject And therefore the Grand Jurors have the greater reason to enlarge in their Declaration or Accusation for the King as in all Declarations at Law is usual as far as the Law will heighten all offences in Blood since the other Jury have so much liberty to lessen the damages and extenuate the Crime whatever the Accusation is Now upon what I have written in this Preface and the Book I am not ignorant how much I have subjected my self ad captum Lectoris to the various censures of the several Readers especially such as use to serve or may serve on Grand Juries Gentlemen I know of the best quality next to the Peers of the Realm and in which Employment for their King and Country it is an honour to serve And I hope it will be no dishonour nor indignity to any of them to entertain or at least to peruse this Advice how they may with the greatest prudence and fidelity pass through an Enquiry after Innocent Bloodshed when they are called unto it and leave nothing therein of this Crying Sin to be repented of that it was not fully Enquired of by them that so their exact care and Justice may keep themselves secure from the guilt of Innocent blood I doubt not but it will meet with some Readers so possessed with the contrary Opinion by an erroneous practice or misunderstanding of the Laws and of the Grand Jurors Oath that so soon as they read the Title will cast away the Book and cry a Paradox Others happily more unbiassed in their Opinions and of more moderation and ingenuity if they dislike will publickly confute it with stronger arguments and grounds of Law and Reason and better experience in point of practice and so determine the point and in that I shall have my end I am very certain that I entred not upon this Subject with an offensive mind but cum moderamine inculpatae tutelae not with a direct design to kill any but rather to fright weaken and drive away that Daemon of Passion in man to commit Murther and to give the best advice to Grand Jurors in Cases of Blood A small thing oft times hath the power to redress a great Inconvenience yea to take up a cruel Feud as Virgil saith of that of Bees when they are actually engaged in battel Hi motus animorum atque haec certamina tanta Pulveris exigui jactu compressa quiescent ADVICE TO Grand JURORS IN Cases of Blood IT is the great happiness freedom and liberty of the English Nation that in all common and ordinary Trials of offences Criminal and Capital as Treasons Murthers Felonies and Misdemeanors each Freeman and so are all the people of England as to this shall receive his Trial per pares by his equals which is well provided for by the great Charter of the Liberties of England in these words No Freeman shall be taken or Imprisoned or disseised of his Freehold Liberties or Free-customes nor be Outlawed banished or in any manner destroyed c. but by lawful Judgment of his Peers or by the Law of the Land This Chapter of Magna Charta is partly repeated in a later Statute and there Law of the Land is expounded Indictment process by Writ original and course of the Law Another Statute recites it and instead of the words Law of the Land puts in Process of the Law as equivalent and Synonimous signifying the same thing And again a Statute of that King says No man shall answer without Presentment before the Justices or matter of Record or by due Process and Writ original according to the old Law of the Land as it is well observed by the Lo. Cook that Oracle of the Law In pleas of the Crown and other Common offences and Nusances the King cannot in an ordinary way put any man to answer but he must be apprised by Indictment or other matter of Record For by the Law of the Land a Felon or a Murtherer cannot be convicted or attainted though he confess the Felony or Murther until a grand Jury have presented the offence nor can any person generally and ordinarily be convicted or attainted or have Judgment of life or Member upon any Criminal accusation but there must be two Juries pass upon him at least 24 persons the one a Grand Jury ex parte Regis to present the offence fit for a trial the other a petit or lesser Jury inter Regem personam accusat to try the truth of that Presentment The Grand Jury coming from all parts of the County the other Jury of the very neighbourhood de vicinetto where the offence was committed for vicini vicinorum facta optime praesumuntur scire and so in probability of Law are presumed to know something experimentally besides what they have by Testimony both of the quality of the person truth and nature of the offence with all its circumstances and happily the credit of the Accuser and his Witnesses It is not sufficient that they dwell in the County but they are to be of the Neighbourhood nay le plus procheins to the place of the fact as by Artic. super cap. 9. it is appointed They must be most near most sufficient and least suspicious ibid. The first being called a Grand Jury or a Great Jury either in respect of their number being above twelve the general certainty of all other Juries and may be as many as the Court please but usually exceed not 23 and in good prudence when there is much or weighty business there ought not to be a lesser number for if there be less or more they may be so divided that there can be no verdict as by experience hath been observed for less than twelve agreeing cannot make a Legal verdict Or they are called Grand in respect of the quality of their Persons and greatness of their Estates ability of their Judgments being of good Education or lastly which I conceive the best reason that propter excellentiam they are styled Juratores pro Domino Rege pro Corpore Com. Jurors for our Soveraign Lord the King for the County of S. and as the Commons in Parliament are to the whole Kingdom they have an unlimited power to present all offences committed in their County that are contra Pacem Coronam dignitatem Regis against the Peace the Crown and dignity of the King against either Statute or Common Law they being the great and grand Spring or Primum mobile of the Court that gives motion to all the other wheels their Presentment being the key that either opens or shuts the proceedings of the Court in every offence And therefore it is that the Law of England takes care that as well the Grand Jury as the other Jury consist of persons that are probi legales homines good and lawful men each man must be probus quasi probatus an approved honest man vel
abuse of it were better care taken in return of Jurors I dare say the trial by twelve would not be more ancient than excellent the Excellency of it appears in the long constant and general use of it amongst the people of England This way of trial to have all their Estates Injuries and Lives tried by twelve men and those Neighbours of our own degree and parity and without exception upon a lawful challenge certainly nothing can be said more for the commendation of it than the constant practice and unanimous approbation of it in England to this day since the first beginning of it The trial by twelve being very ancient though Mr. Daniel and Polydor Virgil deny it to be ancienter than the Norman Conquest But Polydor as says the excellent Sr. H. Savil was an Italian and a stranger in our Common-wealth and so deceived It is of English Saxon descent as by the Laws of King Etheldred cap. 4. thus In all Hundreds let Assemblies be and twelve Free-men of the most ancient together shall swear not to condemn the Innocent nor absolve the guilty It was in use with the French in the Age of Charlemaine They that would see more of this let them read that learned and ancient Book written by Judge Fortescue in commendation of the Laws of England I shall leave this Subject having briefly touched upon the happiness and liberty the Subjects of England enjoy to have their trials for their Estates and Lives per pares by Juries of twelve men what manner of persons Grand Jurors and those Jurors ought to be and of the excellency and antiquity of such trials in the next place after I have shewed the heynousness of Murther both by the Laws of God and the Laws of this Land and made some little parallel therein I shall briefly shew That it is the duty of all Grand Jurors in all Cases of blood touching the death of any reasonable creature by violence or by the hand or act of any other reasonable Creature where the Bill of Indictment is brought unto them for Murther in case they find upon the Evidence any probability that the person said to be killed in the Indictment was slain by the person charged to do it in the Indictment to put Billa vera to that Indictment without foreclosing the Court by judging amongst themselves the points of Law that may arise in that case as whether it be Murther Manslaughter at Common Law or upon the Statute Se def per Infortunium Justifiable or otherwise none of these special matters being to be found by them that are but Inquisitors and Accusers for the King not tryers of the offence hearing but Witnesses on one side and whose presentment or verdict is not final but must be put to Issue betwixt the King and the party to be tried by another Jury whether there be truth in it or no whatever the practice of Grand Jurors hath been of late to the contrary this being the chief aim and design of this Tract I have not met with any amongst Christians and I believe there is none amongst Heathens or rational Creatures but believe whatever their practices are to the contrary that the shedding of Innocent bloud is a great offence a crying sin To take away the life of a Plant is but the vigour in the juyce and the life of a Beast is but the vigour in the bloud but the life of a Man is a spirit and spiritual substance the breath of God breathed into him and not to be extinguished unjustly by the hand of man Certainly vox sanguinis est vox clamantis it is one of the four sins that the Scripture calls Clamantia Peccata Crying Sins that cry to God for vengeance even in this world upon the Manslayer Immediately after the Floud God commanded that blood unjustly shed should be required by the Magistrate of the Manquiller It is within the Magna Charta of God himself and by an Act of Parliament made in Heaven never to be repealed It is enacted that he that sheds mans blood by man shall his blood be shed At the hand of every mans Brother will I require the life of man says God himself God many times allowed of Restitution and other satisfactions in other Felonies but never in case of blood for who can make satisfaction for the life of a Man The first Murtherer that we read of was the Devil who the Scripture says was a Murtherer from the beginning in quantum traxit in peccatum in drawing our First Parents into sin and so to death The next that we read of for the Devil would not be long before he had tempted more to his own sin was Cain that kill'd his Brother Abel and it seems very desperately shed much of his blood in many parts of his body for the word is in the Plural number vox Sanguinum the voice of his Bloods or because the Bloods of the future posterity of Abel that he might have had were shed in him by the Murther of Cain It is true that Cain's blood was not shed by that Law although he kill'd his Brother the World being not then peopled nor that Law then so positively given by God and the example and terrour to others could not then be so great which is oft the great end of punishment ut poena ad paucos metus ad omnes perveniat and therefore Cain was to survive by God's special appointment not by any favour of God towards him but that he might have Gods mark as a Murtherer upon him to the Terrour of all others that should see him What visible mark and distinction this was is but conjectured at some think it was a horrible shaking over his whole body as the Septuagint translate who for Thou shalt be a Vagabond and Runagate read He should sigh and tremble or an exceeding shame and confusion in that he ran from place to place to hide himself or some visible mark in his face as Lyranus thinketh Some Hebrews think it was a horn in his forehead some a letter some that a Dog led him The Scripture is plain that for this Murther he was to be a Fugitive and a Vagabond upon the face of the Earth one as the Text says that went from the presence of the Lord to whom the Earth was accursed and certainly the guilt and shame he carried about him like the bloody Jews that murthered Christ and are to this day Vagabonds over the Earth or those bloody surviving Regicides that murthered the best of Kings yet live with that black mark of King-killing upon them was and is a Judgment greater than death it self as it is in the Psalms Slay them not lest my people forget it but scatter them abroad amongst the people and put them down O Lord our defence And that was the Judgment of Cain who before his natural death some say was kill'd by Lamech who shot in a Bush at
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
Record in Chancery to the King himself in Cases of Blood By this it may appear to all that are rational and unprejudiced that have not formerly asserted the contrary Opinion and therefore like the Opiniators of this Age will for no other reason maintain it That Grand Jurors are not lest so free herein to find what they please or as they would have it strictly according to their Evidence as the Gentlemen of these latter times have taken upon them to do and even to stand upon it against the Learned Judges themselves and their Directions and Advice Besides how greatly do they injure the party accused for if he be Guilty of no higher an Offence than Manslaughter per Infortunium or se Defendendo and the Grand Jury will not find it Murder whereby he may put himself as the Statute of Gloucester directs de bono malo super patriam he can never by a pardon of course receive a total and final discharge from the said Offence For if he should be Indicted at any time again of Murder for the death of that Party as he may be at any time after during his life notwithstanding such pardon where it was not found Murder or Manslaughter at the first he can make no Plea to such Indictment in discharge of it he cannot plead auter foits Acquit or Convict or Attaint of the same Offence because he never put himself de bono malo super patriam upon his Country his life was never in hazard for it whereas if he have been once presented by the Grand Jury for Murder and thereupon Arraigned received a full Tryal and according to the Statute of Gloucester had been acquitted of the Murder and the special matter of per Infortunium or se Defendendo found in their Verdict which by the Law ought to be so found by the Jury of Life and Death under their Hands that the Judge upon hearing the whole matter may be satisfied it is found according to Evidence given in Court and thereupon adjudge what that Offence is in Law If in this case the party that hath received such a full Tryal and hath sued out a Certiorari out of Chancery and upon the Return of that hath had the Special matter the whole Record of proceedings certified by the Judge before whom the Record remains and thereupon hath procured his pardon of course out of Chancery such person can never be called in question again for the same Offence but he may plead that Record and Verdict of Acquittal from the Murder or Manslaughter notwithstanding it might happen to be proved afterwards either Murder or Manslaughter it shall discharge and acquit him for ever And if the Grand Jury as in this case ought to find every per Infortunium Murder notwithstanding by the Evidence it appear no more to them à multo fortiori they ought to find every Offence that appears to them upon Evidence to be but Manslaughter Murder For the Bill of Indictment as it comes from their hands is but the Kings Declaration of the matter of Fact to which the Prisoner may plead Not Guilty and joyn Issue with the King and have it tryed Whether he be Guilty or not modo forma as it is laid in the Indictment or may confess and justifie as he shall find cause For this Indictment or Presentment of the Grand Jury in the behalf of the King against the Prisoner sets forth an Act done Vi Armis against the Kings Peace his Crown and Dignity all which are violated dishonoured weakned in the loss of a Subject in the shedding of Innocent Blood by which his Land is defiled and his Laws violated and this according to the Laws of God and Man prima facie may be Murder and therefore ought as well as all Declarations at Law to be set forth in the fullest circumstances of aggravation a Fact of Blood which far exceeds all other Facts will bear especially in laying the ground work and foundation of the Charge because it cannot heighten or increase but may lessen and decrease like the Moon in the full to its lowest wane even to nothing upon a full Examination and Debate of the whole matter by hearing of Parties and Witnesses on both sides and receiving in the face and audience of the Court such a scrutiny and narrow search as blood requires into all circumstances and aggravations of the Offence that are laid in the Indictment by the Learned Judge who is of Counsel as well for the Prisoner as the King and must not let the Prisoner suffer for want of Counsel in Law that a Grand Jury cannot possibly do they hearing but only Witnesses on one side and not the Prisoner besides their want of Judgment and Knowledge in the Law in all Cases of Blood whereas if the Grand Jury shall take upon them which they ought not to do to put out of the Indictment and Declaration of the King the words Ex malitia praecogitata the only words that make it Murder the Court can never Judicially examine the malice which is commonly a secret latent thing carried on with a great privacy and cunning and appears not in all cases of Murder express and no Evidence can prove further to a Grand Jury whereas the Law in many cases implies a malice to make it Murder although the Parties never saw or heard of each other before which lies not in proof of Witnesses but ariseth as a point of Law upon the circumstances of the Fact which not a Grand Jury but the Court is Judge of being matter of Law which Judgment in Law is wholly frustrated and taken from the Court when the Grand Jurors put out these words Ex malitia praecogitata which only make it Murder out of the Indictment And by such favour indulgence or wilfulness in Grand Jurors many times the greatest Murder escapes by a per Infortunium se Defendendo or at least by a Manslaughter For if the Grand Jurors shall only find it Manslaughter the Prisoner upon his Arraignment presently if he can but read get any one to help him or corrupt the Ordinary no great difficulty to do confesses the Indictment and prevents all further tryal upon that Offence and so neither the Judge nor Court can ever come to understand although there be twenty Witnesses against the Prisoner what Evidence the Grand Jury had to find it no higher than Manslaughter nor shall ever come judicially to examine the nature quality or malice if any be circumstances and truth of the Fact although in it self the foulest Murder that can be as my own above Forty years experience attending the Crown Court in one Circuit under many Learned Judges hath too often experienced together with the common practice of labouring Grand Jurors to such a Presentment and contriving with the Prisoner to confess the Manslaughter lest the truth and foulness of the Murder should too clearly manifest it self as truth ever will upon a Judicial faithful
and careful Examination of the Fact by the Learned Judge upon hearing the Party and Evidence on both sides It is true as appears by two several Acts of Parliament noted in the Margent that at the making of those Acts there was a complaint in Parliament That Indictments were stuffed with more words than the Offence required and that of purpose to aggravate the Offence more than it was grievous in it self For as it is well observed by Mr. Poulton That the circumstances of every Offence do augment or diminish it according to the qualities thereof And by those two Acts of Parliament it may be observed there was a reformation and redress made therein by leaving out some formal aggravating words but then material used in those times in all Indictments of Felony and Murther as by the Statute of the 4th of H. 4. 2. the words then constantly used in all Indictments of Felony without which the Indictments were not good were Insidiatores viarum depopulatores agrorum provides that those words should be left out in all such Indictments and yet the Indictments should be good without them And well they might leave them out for how useless and impertinent as to the Essence of the Indictment were those words and yet the effect of them must be still observed As also by the Statute of the 37 H. 8. c. 8. the words Vi Armis viz. cum baculis cultellis arcubus sagittis or such other like words before time commonly used and comprised in all Indictments and Inquisitions of Treason Murther Felony Trespass and other Criminal Offences shall not of necessity for they were so before be put or comprised in any Inquisition or Indictment but it shall be good only with these words Vi Armis c. leaving out the other against any advantage that may be taken as formerly it was by Writ of Error Plea or otherwise for these words were to very little purpose to be of necessity used in every Indictment For as to some Indictments there could be nothing of pertinency or congruity to the Offence in them And yet let it here be observed by the way That in those times and before those Statutes formerly mentioned continually in all Indictments those words were used and the Indictments found by the Grand Jurors without any proof made to them of such circumstances then essential as Insidiatores viarum depopulatores agrorum liers in wait to deceive upon the High-ways and destroyers of Husbandry or as in the other Statute Cum baculis cultellis arcubus sagittis viz. with Staves Knives Bows and Arrows when perhaps he that committed the Offence had not one of these Weapons about him or was guilty of the least of these circumstances of Aggravation which were then held necessary to every Indictment which shews how observable at that time Grand Jurors were to the directions of the Court and to the Kings Council in drawing the Indictments and Circumstances of it Whether such Circumstances lay in proof or no But in neither of these Statutes nor any other Statute is there any Exceptions made to these words in any Indictment for the killing of a man Ex malitia praecogitata then used in all Indictments for the killing of any person unlawfully which as is said before are of great consequence and use to be put into all Indictments against any person that hath shed innocent blood For as Mr. Poulton in the very Folio before quoted saith writing upon the two former Statutes last mentioned If one be Indicted of Murther or Manslaughter there must be of necessity in the Indictment a stroke supposed viz. tali die anno felonicè ex malitia praecogitata interfecit murdravit Here it is plain that the Indictment of Manslaughter as well as Murther must have these words Ex malitia c. in it Neither let any think that it is prest further in foro legis than it will bear in foro conscientiae or that by this means Grand Jurors are used but as Cyphers like the Ordinary at the Assizes pro forma tantum and that the Arguments of Law and Reason here used seem'd to perswade them like those of the Church of Rome to be of an implicite Faith to believe as their Leaders would have them and to do as they require them and yet to be under the Obligation of an Oath to present the truth of the matter of Fact It is far otherwise being rightly considered they are not sworn to try the whole truth of the Offence so as nothing may be altered in what they find for then there would be no need of another Jury they are neither to convict the Party nor determine the Law Whether it be Murther or Manslaughter or of what kind or Species it is as it appears to them upon the hearing of but one side and that but of Witnesses not of the Party that is left as is said before to the second Jury who are properly Tryers of the Offence de vicineto of the very Neighbourhood not Inquirers only as Grand Jurors from every part of the County where Parties and Witnesses and Council on both sides if occasion be may be lawfully heard The Grand Jury are only sworn to inquire and true presentment make of all such things and matters as shall be given them in charge to present nothing for malice c. nor leave any thing unpresented for favour c. From hence often Grand Jurors frame an Argument to themselves that it is part of their Oath to present all such things as shall be given them in charge that generally the Judges in their charges dilate upon the several Species and differences in Murther As what Offence the Law makes Murther what Manslaughter at Common Law what upon the Statute what per Infortunium what se Defendendo what is malice expressed and what is malice implied and therefore wherever they find these specifical differences by their Evidence they are so to present it and not otherwise This is upon a great mistake nor is it or can it be so intended by the Judges for although it is true that the Judges for the most part not all of them in their charges to the Grand Jury which I humbly conceive were better omitted do usually mention and branch out the several specifical differences and distinctions the Books of Law make in shedding of Blood in Murther and Manslaughter I conceive more to inform the whole Country and to shew their Learning and the Law therein than intentionally that the Grand Jury should presently some of them perhaps never serving before uno intuitu take it into the consideration of their Oath and make it the nice Duty of their Inquiry which indeed they can never attain unto or determine the Law therein by only hearing of an Accusation of one side from which they are only to prepare fit matter for the Court to proceed further upon and to make
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
to find a Bill and here I will leave to the observation of Grand Jurors what I find in Mr. Justice Stamfords Pleas of the Crown and which he himself observeth out of Bracton a very ancient and learned Lawyer as Bracton's order in Cases of Suspicion upon Indictments of Felons de secta Regum The words are these Nunc autem dicendum est de Indictamentis per famam Patriae quum praesumptionem inducunt cui standum est donec indictatus se à tali Suspicione purgaverit ex fama quidem oritur suspicio ex fama Suspicione oritur gravis praesumptio Tamen probationem admittit in contrarium sive purgationem Suspicio quidem multiplex esse potest primo si fama oritur apud bonos graves Item ex facto praecedenti oriatur suspicio cui etiam standum est donec probetur in contrarium c. and so goes on to let us know the several badges and marks of Suspicion advising that those that will take Publick fame for an Evidence take it from those that are of good Fame and not of evil persons as he goes on Non de malevolis maledicis sed providis fide dignis personis non semel sed saepius quia clamor innuit defamatio manifestat Tumultus enim clamor populi quandoque fiunt de multis quae super veritatem non fundantur Ideo vanae voces populi non sunt audiendae ut ne dicatur Jesus crucifigitur Barabas autem liberatur The whole Chapter is well worth the reading And it may not be amiss to observe that the ancient forms of Indictments or Bills began thus Inquiratur pro domino Rege Let it be enquired of for our Soveraign Lord the King as the offence is laid in the Indictment whether the offence be so as is there supposed which is as much as if the Grand Jury should say We judge it fit that it be farther enquired of whether it be truly so indeed as it is here supposed for the Offence as it is laid in the Indictment as it comes from the Grand Jury before it receive a farther trial and enquiry of another Jury is no more but Crimen suppositum impositum an offence supposed and laid to ones charge to answer and this clearly appears by the Record of every Acquittal or Conviction of any that is tried upon an Indictment for the words of the Acquittal or Conviction as they are drawn up in the Record are these viz. Juratores that is to say the Jury of Life and Death dicunt super Sacramentum suum quod praedictus A.B. non est vel est Culpabilis de Felonia Murdro praedict in Indictamento praed specificat ei superius imponit modo forma prout per Indictamentum praed superius versus cum supponitur so that supponitur imponitur supposed and imposed is all that can be inferr'd from the Indictment the Grand Juries Presentment upon hearing of one side being the Supposition and the other Jury upon hearing of both sides the Imposition or Supponitur and that relates to the substance of the Indictment as the Grand Jury suppose it to be the Imponitur and that relates to the modo forma of the Offence and the circumstances of it as it is laid in the Indictment as it is found by the Jury of Life and Death and these Circumstances indeed are the proper enquiry of the Jury of Life and Death upon the hearing of Evidence on both sides as appears clearly by the penning and drawing up of these Records and all this is no more than in every common Declaration at the suit of the Party only this Indictment is as a Declaration upon Oath and must therefore for the satisfaction of those that are sworn contain that which for substance seems to them prima facie to be a probable truth and a transgression of a Law not strictly looking into the matter and form aggravations and circumstances of the Fact as it is laid in the Indictment for those do but attend and usher in the Fact but Grand Jurors are principally to eye and look upon the single Fact and act it self and finding one that hath had his hands in blood and that probably upon a farther Enquiry may become reus a guilty person by killing of another person they are to put their Billa vera unto it although they have no proof at all of the Aggravations and Circumstances that attend the Fact Evidence many times arising out of the parties own mouth against himself upon a strict examination in Court more than the Witnesses against him have proved And it is well observed in the Book called The Terms of the Law upon these two words Billa vera where it is said that Billa vera is the Indorsment of the Grand Jury upon any Presentment or Indictment which they find to be probably true mark these words probably true nor do I take the Adjective Vera in this place to signifie True but meet reason or fit and so it is often used in Terence and by the Grammarians Verum est it is fit so that Billa vera upon the Bill doth not signifie a true Bill that hath nothing but truth in it but a meet or fit Bill for the further enquiry of another Jury which ever succeeds such an Indorsment of Billa vera by a Grand Jury certainly it is upon a great mistake although I confess it is often used in Law-Books and by wise men to call the Presentment of a Grand Jury a Verdict to say that their Indorsing Billa vera or Ignoramus which is all they do is their Verdict there being a great difference between Billa vera and Veredictum which signifies dictum veritatis and even induceth a Conviction for nothing can properly be called a Verdict but where it is given by a Jury after an Issue joyned upon hearing of both sides Veredictum is as it were quoddam Evangelium like a little Gospel of Truth for indeed every Verdict which convicts a man to the loss of Life or Estate ought to be as true as the Gospel the Jurors swear upon for upon the Issue of a Verdict the Lives and Estates of all persons depend And therefore an Attaint lies in Law against those Jurors that give a false Verdict contrary to the truth of their Evidence which is a Villainous Judgment a very great Judgment in Law And this Attaint did never by Law lie or was brought against Grand Jurors for any false Presentment for they do but barely present an offence upon hearing of one side and therefore can be no Verdict as from them the Grand Jury being for number indefinite that being properly called a Verdict from such a Jury where the Law makes a determinate number of twelve or twenty four and no more Besides it is alwaies said in the Record where such a Jury finds a Verdict Juratores super Sacramentum suum dicunt c. But where the Grand Jury present
Robbing of Churches Robbing of Persons in their houses or upon the High-way wilful burning of Houses or Barns with Corn or Accessaries before the same shall be from henceforth admitted to the benefit of their Clergy but suffer death as if they had been no Clerks it seems all that were that is as many as the Ordinary then esteemed so Clerks although they were guilty of Murther petty Treason and Felony suffered not death so great favour and immunity had they in those times for such bloody and crying sins so prevalent were the Clergy and those within Holy Orders in those daies that this very Act of Parliament that takes away Clergy from others that commit Murther Burglary and Robbery and other Offences before-named excepts all within Holy Orders from the same pains and dangers other persons must suffer for the same Offences which freedom and Indulgence continued to them in Holy Orders as they call it until the 28 H. 8. c. 1. which provides That they within Holy Orders as to such and other Offences shall be under the same pains and dangers that others be Now this Statute makes none of the former offences Felony or Murther that was not so before the making of this Statute but only takes from them that commit any of these offences the benefit of their Clergy certainly there wanted not those that committed wilful Murther of Malice prepensed as we now distinguish it before the making of this Statute as those that committed Sacriledge robbed persons in their Houses and upon the High-way wilfully fired Houses and Barns with Corn and were Abettors to the said Offences so it is very plain that this Statute makes no alteration as to the drawing and penning of Indictments of Murther Sacriledge Robbery Burglary c. but only takes away Clergy from every person who after the making of that Statute should be found guilty as the words of the Act are after the Laws of this Land for any of the aforesaid Offences So that according as the Indictment of Murther was by the Laws of this Land before the making of this Act so must it be after the making of this Act wilful Murther in the Statute 32 H. 8. c. 12. and this Statute of the 23. of the same King comprehends as well that which we call Manslaughter and every killing where the will of man is freely engaged as it doth wilful Murther of Malice prepensed compare them together in the one you will find Clergy taken away for wilful Murther of malice prepensed and Sanctuary from wilful Murther and generally such Offences as were prohibited Sanctuary by former Statutes are now prohibited Clergy by later Statutes The words Ex malitia praecogitata murdravit which now make all this contest before the making of this Statute in any case of Murther neither aggravated nor extenuated the Offence made it neither more nor less penal But since the making of this Act those words are made necessary in all Indictments and Convictions of Murther and principally and only in cases of wilful Murther to be considered and weighed by the Court and Jury of Life and Death upon hearing and debating the matter with all its circumstances as hath been said before on both sides those words being matter of Law mixt with matter of Fact and are not to be expunged by a Grand Jury because they cannot afterwards be supplyed nor implyed by the Court and Jury of Life and Death after the Arraignment of the Prisoner should there appear upon Tryal never so great cause yet Felonicè and some other words though material may be supplyed in a Special Verdict If upon an Indictment of Murther quod Felonicè percussit c. the Jury find percussit tantum yet the Verdict is good for the Judges of the Court are to resolve upon the special matter whether it was Felonicè c. or not Coke lib. 9. 69. And if the Court adjudge it Murther then the Jurors in the conclusion of their Verdict find him guilty of the Murther contained in the Indictment and to shew the power of a Jury of Life and Death who indeed should have the fullest and highest Charge can be laid against the prisoner for the Offence he is to be tryed If A. be Appealed or Indicted of Murther viz. that he of malice prepensed kill'd B. A pleads that he is not guilty modo forma yet the Jury may find A guilty of Manslaughter without malice prepensed because the killing of A. is the matter and malice prepensed is but a circumstance Plow Com. 101. And generally where modo forma are not of the substance of the Issue but words of form there it sufficeth although the Verdict doth not find the precise Issue 22 H. 8. c. 19. The first Statute that I find these words mentioned in of malice prepensed is the 22 H. 8. c. 14. where it is said If any person for any petty Treason Murther or Felony have obtained the King's Pardon or is otherwise discharged out of Sanctuary and afterwards commit another petty Treason Felony or Manslaughter by Chance-medly and not Murther of malice prepensed and afterwards take Sanctuary again for any such petty Treason Felony or Manslaughter by Chance-medly the same person shall enjoy a second priviledge of Sanctuary So that he that committed Murther of malice prepensed could not enjoy the benefit of Sanctuary a second time Then comes the Statute of the 25 H. 8. c. 3. and remedies divers defects that were in the said Statute of the 23 H. 8. Forasmuch as the said Act extended only to such persons as were found guilty after the due course of the Laws of this Land divers and great Robbers Murtherers Burglars and Felons did commit those Offences perceiving and clearly understanding by the words of the said Statute that they should not lose the benefit of Clergy unless they be found guilty after the due course of the Law upon their Arraignment of and upon the said Murthers and Felonies so by them done and committed by reason whereof divers of the said persons upon their Arraignment of the said Offences and Felonies upon their Indictments against them would stand mute and sometimes challenge peremptorily over the number of Twenty or else would not answer directly to the same Indictments whereupon they were Arraigned according to Law It was therefore provided by this Statute That every person that hereafter should he Indicted of petty Treason wilful burning of Houses Murther Robbery or Burglary or other Felony according to the tenour or meaning of the said Statute of the 23 H. 8. and thereupon Arraigned and do stand mute of malice or froward mind or challenge peremptorily above the number of Twenty or else will not or do not answer directly to the same Indictment and Felony whereupon he is so Arraigned shall lose the benefit of Clergy in like manner and form as if he had directly pleaded to the same petty Treason Murther Robbery or other
was found before by the Grand Jury and that makes too specially Verdicts or else generally Not guilty if they find him guilty of the Special matter as the Grand Jury found before them and the Judge and Court shall afterwards adjudge as they may having heard the Evidence that super totam materiam it is either Murther or Manslaughter then no Judgment of Death or Clergy can be given upon that Indictment or Verdict but all must be tried over again and a new Circuit of business upon a second Indictment of Murther or Manslaughter and how dilatory and idle would this be at an Assizes in course of Justice and in case of Blood If Judge Stamford were alive again although a person of great Learning and Judgment he would surely with some other Errors in that book recant this neither is it of any advantage to the Prisoner to have it found Specially by the Grand Jury for he can never plead either such an Acquittal or Conviction in Bar to an Indictment of Murther or Manslaughter in the same case as before is shewed and whoever shall read and well consider this seventh Chapter written by Judge Stamford in The Pleas of the Crown wherein this Opinion is especially towards the end of it when he comes to observe the Letter of the Statute of Gloucester and how the Certificate of such a Pardon of course shall be obtained must of necessity hold his first Opinion in that Chapter for the Special matter to be found in the Indictment to be very inconsiderately expressed for the reasons aforesaid And why may not this Learned Judge for humanum est Errare mistake in this as in some other Opinions in that Book of his styled The Pleas of the Crown for which he is detected by the Lo. Coke and others that followed him who standing upon his shoulders must needs see farther than he did or could As to instance in some few As first that Respit of Execution where a Woman is priviment enfent where a Woman after Judgment pleads her Belly shall be granted only says he in Felony whereas it is grantable both in high Treason and petit Treason A second is That the year and the day after the Murther and Homicide committed shall be accounted after the blow given or poyson administred whereas it ought to be accounted after the death for then the party was murthered and not after the stroke or poyson given Coke lib. 4. fol. 41 42. in Heydon's Case A third observed by the Lord Coke writing upon the Statute 8 H. 6. c. 12. which makes it Felony to steal away Records upon these words in the said Statute Their Procurers Counsellors and Abettors saith this Act expresly extendeth to Accessaries before and leaveth Accessaries after to the construction of Law yet there may be Accessaries after the Fact for whensoever an offence is made a Felony by Act of Parliament there shall be Accessaries to it both before and after as if it had been a Felony by the Common Law And therefore though this Act expresseth only Accessaries before yet it taketh not away Accessaries after but leaveth them to the Law contrary to the Opinion of Mr. Justice Stamford And again by the Statute of the 8 H. 6. c. 29. Insufficiency or want of Freehold is no cause of Challenge to Aliens who are Impanelled with Aliens notwithstanding Mr. Justice Stamford's Opinion Pl. Coron 160. for this Statute saith That the Statute 2 H. 5. c. 3. shall extend only to Enquests betwixt Denizen and Denizen But enough and perhaps too much hath been said in mentioning the mistakes of that Reverend and Learned Judge Sr. William Stamford in that Book of his termed Placita Coronae Pleas of the Crown which it seems by the Title of it hath been corrected amended and enlarged since the first Impression of it which I have not urged in the least to detract from the Learning and Honour of that great and learned Judge or from the value of that Book which notwithstanding there may be a few mistakes found in it yet is of as high esteem as any Book of the Law extant upon that Subject but principally to shew that he may as well erre in his Opinion concerning Grand Jurors finding the Special matter as in those mentioned and that no human Author in the Law or any other Science is infallible and that we must be very careful how we ground any Law upon the bare Opinion of any one or two persons though of never so great parts or esteem whereby to justifie or maintain a great Inconvenience in practice especially in Cases of Blood as before hath been shewn FINIS Duellum quasi duorum bellum Done without Authority is a war against Authority That which the Victor thinks to be his honour proves his dishonour His Life his Lands and Goods are by Law forfeited and his Blood corrupted Infoelix pugna ubi majus periculum incumbit victori quam victo †The Oath of a Grand Juror Stamf. fol. 36. 27. lib. Ass Murdrum de caetero non adjudicetur coram Justiciar ubi infortunium tantummodo adjudicatum est sed locum habeat Murdrum de interfectis per feloniam tantum non aliter Statut. de Marlebridge 52 H. 3. c. 26. * Utramque partem ni audias ne judices Qui judicat aliquid parte inaudita altera licet aequum judicaret haud aequus est Yet Grand Jurors take themselves to be Judges of the Fact * If he have Council he must pray it before he plead Not guilty he cannot after 3. Inst fol. 129. †And that is one reason why regularly he cannot have Council The second reason is the Court ought to see the Indictment Trial and other proceedings good in Law lest by an erroneous Judgment they attaint the Prisoner 3. Inst. 137. fol. 29. Secta pacis is by Indictment which is the King's Suit and as it were his Declaration The King formerly did not pardon homicidium but Sectam pacis nostrae quae ad nos pertinet de homicidiis 3. Inst fol. 235. a 25 E. 3. 4. 5 E. 3. 9. 42 E. 3. 3. Vit. Abbot St. Alban 143. b 37 E. 3. 18. c Cook 3. Inst Tit. Indict 136. d Except by Utlawry e No Peer or Subject can be Convicted by Verdict but the Offence must be found by twenty four f It is not sufficient that they dwell in the County but they are to be of the Neighbourhood nay le plus procheines to the place of the fact as by Artic. super cap. 9. it is appointed They must he most near most sufficient and least suspicious ibid. g The Kings Jury h Jus à Jovis nomine Jus qu. Jovis os omne enim Jus Justitia à Deo est i v. Statut. 3. Ed. 1. c. 11. Forasmuch as many being indicted of Murther and Culpable of the same by favourable Inquests taken by the Sheriff and by the Kings