a Graec. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui progredi possit praegredi debet he that will go on in vertue certainly ought principally to be chosen to attend the Courts of Justice It is called Justitia quasi juris statio vel status quod per Justitiam jus stat i. exercetur It is called Justice because it is the Standard of Right misera servitus ubi Jus vagum Justice being one of the Cardinal vertues ought to be attended by none but the virtuoso the most vertuous pious and ingenuous persons probi signifying not only faithful but skilful none can be presumed to be faithful in keeping an Oath that wants skill to know how to perform his duty What expectation can there be of a good Verdict from a bad or ignorant man Can he that is not capable to understand a Cause ever make a right Judgment of it Will a Liar present a truth a Thief convict his fellow thief a Man of blood a Murtherer or Who can expect Justice from him who neither to his God nor to himself is just or true He that believes Judges are quasi Dei Gods as the Scripture calls them or that God sits amongst and is present with Judges in Judgment as in the Scripture sense it is truth and ought to be believed cannot but apprehend how unreasonable it is to bring such a Jury before such a presence to act in a concernment of so high a nature as the life of a Man whose verdict ought to be veredictum a true saying quoddam Evangelium as the Gospel they swear upon dictum veritatis the saying of Truth it self especially as it is the verdict of the Jury of life and death who have the advantage of hearing not only the Accuser and his Witnesses but also the party accused and his Witnesses face to face They are called although a Petty Jury yet a Jury of life and death which the Grand Jury are not although they enquire of the same offence from the great power in their hands to acquit or condemn the life of a man according to their evidence Upon whose verdict the Judge according to Law grounds the Judgment of life or death of acquittal or condemnation and as a Jury may give a just verdict as to themselves upon a false Testimony given to them so may the Judge as to himself give a just Judgment upon a false verdict given by the Jury For as the Jurors are excusable that give their verdict secundum allegata probata per sacrum Testimonium by what is alledged and proved to them by the Oaths of Witnesses or confession of the party even so that Judge is excusable in foro Conscientiae that gives Judgment upon a verdict though false for he doth not therein Jus dare but Jus dicere secundum veredict Jur. upon the verdict of the Perit Jury and presentment of a Grand Jury and this is fully verified in two remarkable Cases noted in the Margent a sufficient caution to all Judges not to try any for Murther where they have not an infallible evidence of the death of the party slain And as every Juror ought to be probus homo an honest and a skilful man so ought every one to be legalis homo a person so qualified that the Law allows of for a man may be an honest prudent and just man and yet in the eye of the Law not a lawful Jury-man for in one sense he is not legalis homo that is not ligeus subditus Dom. Regis Angliae for the Law provides that the Kings Liege people shall be tried per pares by their equals their fellow Subjects In a proper sense he is said in Law not to be legalis homo that is homo utlagatus an outlawed person one that is extra legem positus who is no better than one that is extraneus an alien a stranger one not only put out of the protection of the Law but such a one as the Law will have nothing to do with as he so stands in Courts of Justice to serve as a Juror nay such a person being a Juror will make the verdict void and it is a good exception in arrest of Judgment that any of the Jurors were outlawed But in a larger sense he is not legalis homo such a legal and indifferent person as the Law requires who is either in such a degree of blood to the prisoner as the Law presumes him partial or in such an evil reputation as the Law presumes him unjust for as it is not fit for a Father to be of a Jury to try his Son or the Son the Father Brothers Uncles or near Relations to try one another so it is not fit that he that is particeps criminis or indeed criminalis homo a man that stands judicially accused indicted convicted or attainted for Felony to try another for Felony or indeed to be a grand Juror to present it the Law provides that each Juror ought to be a person rectus in Curia that stands right in Court above and against all natural rational and legal exceptions Qui accusat integrae famae sit non criminosus for certainly to clear the matter of fact as a Juror of life and death and wisely to discern the Cause in question upon a doubtful and perplext Evidence many times requires as great ability in the Jurors of life and death as in the Judge to examine the cause and to give Judgment upon the Verdict there being much more of Black-art used to darken and obscure the truth of the fact in cases of Bloud amongst the Jurors especially if either a great Person or rich be concerned therein than possibly can be to prevent or prevaricate a right Judgment in the Judge or by any dust of gold power or favour to put out his eyes or falsifie his clear sight who sits every way above such a temptation The Jurors of England especially in the Circuits with their unequal yoke-fellows the Tales-men are for the most part the very scandal of the Laws practical of England who seldom serve but to serve a turn to obey a Superiour pleasure a Friend or to help away in a hurry a quick dispatch of practice This fault is not in the Laws of England but the male execution of them The Statute of the 27 Eliz. c. 6. provides that each Juror should have at least four pounds per annum in Lands Tenements or Rents and this must be their sufficiency where the debt or damages or both together amount to forty marks The general course of the world being to esteem men according to their Estates Quantum quisque sua nummorum servat in arca tantum habet fidei Jurors that have Estates to lose will be afraid to commit perjury The best things abused alwaies prove the worst the sweetest Wine makes the sharpest Vinegar not that the fault is in the Wine but in the use and
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
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.
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
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
a Beast and kill'd Cain And the Turks at this day believe that at the Day of Judgment when the Grave and Hell shall deliver up their dead Cain that Fratricide and murtherer shall lead and be as it were the Captain of the damned in Hell Amongst all the Laws of God which he himself appointed the Israelites his own People when they were to inhabite Canaan the Land of Promise there was not any mercy or City of Refuge appointed for a Murtherer or Man-slayer but only where it was done unawares as several clear Cases are put in Scripture to make this plain 35 Numb 23. v. If one throw a Stone that a man die thereof and saw him not but did it unawares So the 19. Deut. 5. When a man goeth to the wood with his Neighbour mark how strongly this Case is put with his Neighbour his Friend whom he had no unkindness for to hew wood and as his hand fetcheth a stroak with the Axe to cut down the Tree the head slippeth of from the helve and smiteth his Neighbour that he die in these and many such like cases there put he shall flee to the City of Refuge and stay there until the Congregation shall judge betwixt the Manslayer and the Avenger of blood whether he did it wittingly or unawares The Hebrews understand by the Congregation the Senators and Chief Judges of the City and although it were done unawares and so adjudged by the Congregation yet so hainous was the offence of Blood before God though nothing of mans will in it that even such Manslayer was never during his life afterwards to depart from the City until it was so adjudged by the Congregation or until the death of the High-Priest who was a type of Christ that set us all free for if he did depart then the Avenger of blood who was next Kinsman to the party slain might if he met him justifie the killing of him So it is very apparent that before these Cities of Refuge were appointed for mercy to him that had killed another unawares such a Man-slayer might have been killed by the Avenger of blood as well as he that had killed another wilfully and after they were ordained they could not be intended to shew Mercy or to be an Asylum or Sanctuary for any that had willingly wilfully or by a passionate assault killed another If it be objected as what sin or offender is there that hath not his Advocate that it is said in the 19. of Deut. 11. v. But if any man hate his Neighbour and lay await for him and rise against him and smite him that he die and then flie to any of those Cities he shall be fetcht thence and delivered into the hands of the Avenger of blood that he may die Thine eye though the tenderest part thou hast shall not spare him how comely soever his person may seem but thou shalt put Innocent blood from Israel that it may go well with thee If it shall be inferr'd from hence That the Cities of Refuge were ordained for all sorts of Manslaughter but where it was done of malice fore-thought ancient hatred or with a sedate and malicious mind hereby implying that he that kills another upon a sudden quarrel assault or in heat of blood as it is termed might flie to a City of Refuge and find Sanctuary It must needs be upon a very great mistake Nor can the Judicials of God herein put into several plain and illustrating Cases by God himself be reconciled if it should be so understood It is said in the 31. Exod. 13. If a man lay not wait but God deliver him into his hands then I will appoint thee a place whither he shall flie The meaning of the delivering him into his hands must of necessity be understood of such a providence that could not be foreseen and so not possible to be prevented by the Manslayer wherein there could be nothing of his will but purely chance and unawares as in the Cases put before of casting the Stone and killing one he saw not cutting of the wood and falling of the helm of the Axe or Bough from the Tree where many such Examples might be given which the Law of England now sums up in one head or Reason viz. Where one is doing a lawful and justifiable act in his Trade Calling or lawful Recreation and by chance and unawares another happens to be kill'd by him then he shall have a Pardon of course now instead of a City of Refuge as shall be hereafter shewed for it is very plain by express places of Scripture that all other voluntary killing of a man unlawfully found no Mercy no City of Refuge but there the Manslayer was to die by the hand of the Avenger of blood it appearing so before the Magistrate or Congregation As to instance in some few Cases out of Scripture 21. Exod. 12. He that smiteth a man that he die shall be slain for it if any destruction follow there he shall give life for life except it be unawares So in the 16 17 18. v. of the 31. of Numbers If any man smite another with an instrument of Iron that he die then he is a murtherer and the Murtherer shall die for it If he smite him by throwing a Stone that he die he that smote him is a Murtherer let the same murtherer be slain therefore the Avenger of blood himself shall slay the Murtherer When he meeteth him he shall slay him mark the Ingemination he shall surely slay him as it is in the 21. Exod. 12. He that smiteth a man that he die shall die the death that is shall surely die for this doubling of the word importat majorem certitudinem importeth greater certainty and yet in all these Cases not one word of malice lying in wait or enmity It is a general Law He that killeth should be killed again and this Law is grounded upon the Law of Nature for like as it is agreeable to Nature ut putridum membrum abscindatur ut reliqua conserventur that a rotten member should be cut off that the rest may be preserved so a Murtherer is to be killed ne plures occidantur lest more should be killed This Law is given unto Noah Gen. 9. when the World was restored and here it is but repeated and renewed The Laws of other Nations herein consent with Moses The Athenians did severely punish Murther expelling the Murtherer from the Temple of the Gods and from all Society and Colloquy of Men till he had his Judgment And by the Law Cornelia among the Romans He which had killed another with sword or poyson or by false Testimony lost his head if he were of the better sort if of meaner condition he was hanged on the Cross or cast unto Wild beasts that was himself like a Tiger amongst men Simler And the reason of the severity was because Murtherers deface the Image of God in Man
saith he what a lamentable case it is to see so many Christian men and women strangled on that cursed Tree of the Gallows insomuch as if in a large field a man might see together all the Christians that but in one year throughout England come to that untimely and ignominious death if there were any spark of Grace or Charity in him it would make his heart to bleed for pity and compassion I my self have known at one Assizes in the County of Monmouth where one hath had Judgment to die for stealing a Horse and Reprieved in order to procure his Pardon another narrowly acquitted of a Felony and made use of by the Goaler to be the Common-Hangman at the same Assizes that both these persons the one breaking the Goal the other having his liberty as being acquitted were both taken in one Felony and Burglary before the next Assizes committed to the Goal and received Judgment of death and were both hanged together So little doth favour terrour or example work a Reformation upon those that are hardened in their sins and want grace to make good use of them But it is thought horrible and grievous that a mans life the life of a Christian or any of the Members of his body should be taken away for so small a value as thirteen pence I take twelve pence to be but petit Larceny for which he shall be whipt it is very plain that the Statute of 3 Ed. 1. c. 15. declaring what Prisoners are Mainprizable or Barable says amongst other offences viz. or for Larceny which amounteth not above the value of twelve pence nay for less King Aethelstanes Laws begin with Thieves and speak thus First that a man spare no Thief who is in the manner having in his hands taken above eight pence it seems eight pence then was in the nature of a Petit Larceny a Ram in the Saxons time was worth but four pence that which was heretofore sold for twelve pence would now be worth forty shillings In the Assize of Bread long after the Saxons in the 51th of H. 3. eight Bushels of Wheat are valued but at twelve pence In Edward the Third's time a Bushel of Wheat was but ten pence a Haymaker had but a penny a day Reapers of Corn two pence an Acre to be mowed for five pence Threshing a quarter of Wheat or Rie but two pence a Master-Carpenter three pence a day and his man two pence a Free Mason four pence others three pence their Boys one penny Plaisterers and their Knaves so named in the Act the same manner and to find themselves meat and drink See the Statute 25 E. 3. c. 1 and 3. And by the Statute made the 6th of H. 8. of much later time the wages of a Bayliff of Husbandry was but sixteen shillings eight pence and for Cloathing him five shillings with meat and drink a Chief Hinde or Shepherd twenty shillings and for his Cloathing five shillings every Common Servant sixteen shillings eight pence for Cloathing four shillings no Woman Servant above ten shillings her Cloathing four shillings and no Master might have given more And although twelve pence keeps not the old Rate but the Modern yet things are prized in trials of Life far below their worth and no man loseth his life in a single and simple Felony but where the thing stoln riseth to more than many twelve pences especially after the Old estimate but indeed the quality of the Offender circumstances of the offence and of the times are mainly considerable in our Law where any mans life is taken away in such a Felony But to return to our proper Subject and to manifest what the Laws of England were in Cases of blood not long after the Conquerer and how tender a regard the Law of England answerable to the Law of God had of the Life of man By a Canon of our Old English Church he that killed a Man in publick war though justifiable was enjoyned a Penance of forty days By the Common Law killing by misadventure unawares or in a mans own defence was Murther founded upon the Judicial Law before the Cities of Refuge and the forfeiture and punishment of both was as in case of Murther as appears plainly by the Statutes of Marlebridge and Gloucester the Forfeiture of Goods and Chattels remains as yet The words of the Statute of Marlebridge 52 H. 3. are as followeth Murther from henceforth shall not be adjudged before our Justices where it is found Misfortune only which shews before that Statute though a man were killed by Misfortune he had the same Judgment in Law as for Murther So that after the making of that Statute until the 6th of Edw. 1. Writs were granted of course where there was a surmise that the man was killed by Misfortune or se defendendo or in any other manner where the killing was not Felony and thereupon a Pardon of course or Grace was granted to the party who only forfeited his Goods and Chattels and by benefit of that Pardon had only his liberty out of prison which without he could not have This way of Mercy it seems did stretch too far and covered too many guilty persons as I fear yet it does under her wings when as their several Cases were not judicially examined indicted and tried before hand by a Grand Jury and a Jury of Life and Death before a Learned Judge as in ordinary Trials of Criminals whereby it came to pass that many Murthers and Manslaughters escaped under the favourable surmise of a per infortunium or se defendendo as if it were done by misfortune or in his own defence and so came off from a foul Murther by a Pardon of Course Now for remedy in this case came the Statute of Gloucester the words of which Statute are as followeth The King commandeth that no Writ shall be granted out of Chancery for the death of a man to enquire whether a man did kill another by Misfortune or in his own defence or in any other manner without Felony but he shall be put in prison until the coming of the Justices in Eyre or Justices assigned to the Gaol-delivery and shall put himself upon the Country before them for good and evil that is for life or death if in case it be found by the Country that he did it in his defence or by misfortune Then by the Report of the Justices to the King the King shall take him to his Grace if it please him The Report to the King is to Certifie the Record into the Chancery where the King is alwaies present and therefore it is called a Pardon of Course Stamford fo 15. whereas the Kings own hand and fiat is to other Pardons So that here it is very plain that he that will be acquitted and discharged out of Prison for Manslaughter per infortunium or se defendendo ex Gratia Regis must first put himself super Patriam
established by the said Act of the 3 H. 8. That all Pannels of Grand Jurors put in by any Sheriff before any Justice of Goal-delivery and Justices of Peace one being of the Quorum in the open Sessions to enquire for the King shall be reformed by putting to and taking off the Names of the persons which so be impannelled by every Sheriff at the discretion of the said Justices before whom such Pannel shall be retorned and the Sheriff upon pain of twenty pound shall allow of such Pannel so reformed and retorned by the Justices the one half to the King the other to him that will sue for the same and the Kings Pardon shall not be a bar to his part that so sues So careful were the Law-makers to have faithful Jurors that should neither accuse the Innocent nor excuse the Nocent and that especially in Cases of Blood should make no concealment And lest all this care and reformation of Grand Jurors should do no good but that they should still espouse their own opinions and make head against the Court and wilfully conceal Offences they were charged to enquire of there is a Statute yet in force 3 H. 7. in which it is ordained That the Justices of Peace may in their discretions cause an Inquest to be Impannelled to enquire of the concealments of other Inquests taken before them of such matters and offences as are to be enquired and presented before Justices of Peace whereof complaint shall be made And if any concealment shall be found by any Inquest within one year after the said concealment every person of the said Inquest that made such concealment shall be amerced or fined at the discretion of such Justices of Peace the said Amerciaments so assessed in plain Sessions And these Amerciaments or Fines may be very high according to the nature of the Concealment and quality of the person This Statute only concerns and remedies Concealments by Grand Jurors before Justices of the Peace at the Sessions of the Peace as conceiving Grand Jurors would be bolder there and take more liberty in their Presentments than they durst before Justices of Assize Oyer and Terminer or Goal-delivery as also that such Justices and Judges knew better how to deal with them if they made any such concealments or misprision before them For the Grand Jurors being immediate and subordinate Ministers and Officers in and to the Court and answerable for their Duty there as Coroners Constables and other Ministers of the Court they may and must stand to the Judgment of the Court and in case of any wilful contempt misdemeanor and concealment may without Indictment for how can they be indicted at the same time by themselves be fined by the Court as any other Officer and Minister of the Court. And let Grand Jurors take heed lest by their remisness and peevishness they give not occasion to the making of the like Statute as was made in the 11. of H. 7. c. 3. upon the surmise in the Statute That whereas many great Offences as Riots unlawful Assemblies Extortions Maintenances Imbraceries and other Offences could not be duly punished by the due Order of the Law except it were first found and presented by the Verdict of Twelve men thereto duly sworn which will not find nor yet present the Truth observe here what occasions Grand Jurors had then given through their neglect It was therefore provided and enacted by this Statute That Justices of Assize and Justices of Peace upon Information for the King that is meerly upon the Testimony of Witnesses without Indictment or use of Grand Jurors should proceed to make out Process Punish and Condemn Offenders by their Discretion as if it were upon Indictments found by Grand Jurors Which Statute was a great Infringment of the Common Law and the Liberty of the Subject of England who ought not by Magna Charta and the Law of this Land to be proceeded against or condemned in their Persons or Estates in Criminals but by Indictment first had and found against them by Grand Jurors It is true that Treasons Murthers and Felonies and such Offences for which life and member should be lost are excepted out of this Act although they stand upon the same Reasons as the other Offences named in the Act For by this Act and new Law the Subject might lose his Liberty suffer Ransom Stigmatizing Pillory Imprisonment loss of Lands and Estate things very near to Life and Member And the Lord Coke tells us That Empson and Dudley two Judges by reason of this Act committed upon the Subjects insufferable Oppressions and therefore this Statute was justly Repealed after the Decease of H. 7. by the Statute of the 1. of H. 8. c. 6. A good Caveat to Parliaments says the Lord Coke to leave all Causes to be measured by the Golden and streight Mete-wand of the Law and not to the uncertain and crooked Cord of Discretion And as good a Caveat it is to Grand Jurors in cases of Blood not so much to be led by the crooked Cord of Discretion as the streight Rule of the Law and Directions of the learned Judges who should best know the Law and the truest measure thereof For if the Rule be true as indeed it is Quod nihil relictum est arbitrio Judicis that nothing is left to the Will of the Judge much less arbitrio Juratorum to the will of Grand Jurors they having been through too much connivance by an evil practice corrupted herein But errores ad sua principia referre est refellere To bring Errors to their beginning is to see their last Now haply Grand Jurors may conceive and argue thus That to extenuate an Offence is not to conceal it if they find it not Murther yet they find it in some degree of Manslaughter c. Besides if the Kings Council will put into the Indictment the words Ex malitia praecogitata c. which only make it Murther and which is matter of Fact they must make it out to us that there was malice either from our own knowledge of it or that it is clearly proved to us from words or deeds express by such an act that lies in proof or we are not bound to find those words but must strike them out of the Indictment or find an Ignoramus Or if the Witnesses themselves shall inform us that it was a sudden falling out or done by misfortune Se defendendo in his own defence or to defend himself against one that would have robbed him in his House or upon the High-way or that he that did it was a Watchman a Constable or lawful Officer or Keeper of a Park or Warren and in doing his Duty or that he that did it was a natural Fool one not Compos mentis a Mad-man or a young Child that did it and by his young and tender years not capable of malice and so could not be guilty of Murther or if there had been former fallings out and
the said poysons were not contained in the Indictment yet the Evidence of giving them was sufficient to maintain the Indictment for the substance of the Indictment was as before is said Whether he were poysoned or not And when the cause of the Murther is laid in the Indictment to be poyson no Evidence can be given of another cause because they be distinct and other causes So if the Murther be laid by one kind of Weapon as by a Sword Dagger Stilletto Stick Tobacco-pipe Knife Sheers or other like Weapon it makes no difference the Evidence will be sufficient if the party be slain by any of these because they are all under one Classis or cause And afterwards Anne Turner Sr. Gervase Elwys and Richard Francklyn a Physician Purveyor of the Poysons were Indicted as Accessaries before the fact done And it was Resolved by all the said Judges that either the proofs of the poyson contained in the Indictment or of any other poyson although it were out of the Indictment were sufficient to prove them Accessaries for the substance of the Indictment against them as Accessaries was Whether they did procure Weston to poyson Sr. Thomas Overbury or no So that it may be observed here what in the Case above was observed by the Lo. Coke that Jurors were not to expect a direct and precise Proof in every point laid in the Indictment shewing how impossible it were to Convict a Poysoner who useth not to take any Witnesses to the composing of his slibber-sawces neither do other Murtherers to the contriving of their malice and manner of killing another but keep the fire burning in their own bosoms until it break out Nor in all Cases of Murther is it material that express Malice be proved to the Jury of Life and Death though they be to Convict the Prisoner much less or not at all is it material to prove it to the Grand Jury who are but to present it not to the Jury of Life and death in any case where the Law only implies it for such proof is in the Judgment of the Court and not in the Jury which the Jury must submit unto and be over-ruled in much less is this implied Malice to be proved to the Grand Jury for it lies not in the proof of Witnesses but in the construction of the Law as is said before and yet the Grand Jury must find those words Ex malitia praecogitata c. as if they were proved expresly unto them by Witnesses or otherwise the Jurors of Life and Death cannot enquire of the offence as Murther And the Jury of Life and Death in such a Case must find those words expresly although they cannot be proved unto them but are only implied and supplied by Law or else the party accused can never be Convicted of Murther as might be instanced in very many cases take some for all viz. One in prison kills his Keeper and makes an escape where no malice or falling out can be proved a stranger or other person kills a Watchman Constable or other Officer that hath good warrant to stay him though happily there be no cause for his stay being an Innocent person or another person and not the same they intended here 's no Malice yet this is Murther ex malitia praecogitata c. One goes into the Street or High-way and kills the first man he meets although he did never see him before The Father or Mother takes their sucking Child and dasheth out the Brains of it against the wall Two persons are fighting a Duel together upon cool blood upon premeditate malice and a third person comes to part them and is killed by one of them this is Murther ex malitia praecogitata in him that killed him if not in both although neither of them ever saw him before and yet no malice to this man One wilfully kicks or wounds a Woman great with Child whereby the Child is wounded in her she is afterwards safely delivered of the Child the Child alive the wound or bruise by the kick or blow appearing upon the Child mortally whereof afterwards it dies this is Murther ex malit praecog and yet what malice had this man to the Child he never did see Divers persons are unlawfully hunting in a Park one of them kills the Keeper after the Keeper had duly according to his Office admonished him to stand all the rest of the Company although a mile off in the said Park and out of sight are guilty of wilful Murther of the Keeper and yet nothing of malice can be expresly proved One is shooting at a Cock or a Hen and kills another person this is Murther his act was unlawful One finding a Gun or Pistol charged lying upon a Table or other place takes it up into his hands draws up the Cock not thinking it to be charged and in a jesting way gives fire at one in the Room the Gun goes off and kills him this is Murther he had nothing to do to meddle with the Gun it was out of his Calling and none of his he must Jest at his peril A Drunken-man gets upon a Horse which a sober person might ride quietly and in a Fair or Market occasions the Horse to run over another person and kills him this is Murther A gives B the lie with many other provoking words as Coward Thief Murtherer whereupon B strikes A and kills him this is Murther ex malitia c. words are not a sufficient provocation for one man to kill another If one killeth another without any provocation actual of the part of him that is slain this is Murther the Law implieth Malice If a man knowing that many People are coming along the Street from a Sermon throw a Stone over a wall or house intending only thereby to fear them and thereupon one is killed with the Stone this is Murther although he knew not the party slain If A assault B to rob him and in resisting A killeth B this is Murther by malice implied although he never knew him If one meaning to steal a Deer in a Park shooteth at the Deer and by glance of the Arrow killeth a Boy that is hidden in a Bush this is Murther the Act being unlawful though here was no intent to hurt the Boy knowing nothing of his being there If a Woman being quick with Child do wilfully with a potion or otherwise intend the destruction of the Child in her womb the Child being born alive dieth of the potion battery or other cause this is Murther If one keep a Mastiff-dog that is used to bite people near the Common Highway or a Bull or Beast that hath hurt any one after notice they kill any one it will be Murther in the Owner although not present when the fact was done and yet in this and the other precedent Cases here is no express Malice to be proved but what the Law construes to be so which can in no
sense be left to the Grand Jury to be judge of But in all these Cases and many more must be ruled and over-ruled by the Judgment of the Court in point of Law Although no Malice in these Cases can be proved to the Grand Jury or petit Jury yet the Indictment must be expresly drawn and so found by the Grand Jury with these words to make it Murther Ex malitia sua praecogitata c. that is that he killed him out of his malice fore-thought not that these words make a new offence of Felony and Murther that was not Felony and Murther before and so esteemed in all Cases where it was done voluntarily and by assault and this appears plainly by the Statute of Marlebridge formerly mentioned 35 H. 3. where it is said Murther from henceforth shall not be adjudged before our Justices where it is found by Misfortune only but it shall take place in such as are slain by Felony and not otherwise By this Statute it is plain that killing one unawares by misfortune was Murther before this Statute and that after this Statute all other killing where it is Felony shall be Murther as before this Statute Felony is a general term which comprehendeth divers hainous offences for which the Offender ought to suffer death and lose their Goods and Lands They are called Felonies of the Latin word Fel which is in English Gall in French Feil or of the ancient English word Fell or Fierce or because they are intended to be done with a cruel bitter fell fierce or mischievous mind So the Statute de Officio Coronatoris made 4 Ed. 1. where the Coroner is well directed his duty where any person is slain or suddenly dead how he should behave himself which is worth his reading It follows in the said Act in these words And if any be found Culpable of the Murther the Coroner shall immediately go to his house and Inventory his Goods Chattels Lands c. as in that Act is further directed I only mention it to shew that all that were found so slain the Coroner was to enquire of it as Murther or otherwise there could be no Inventorying of Goods valuing or seizing of Lands c. or committing the Offender to the Goal by the Coroner as plainly doth appear by that Act. So the Statute of the second of Ed. 6. where one is stricken in one County and dies in another it being doubtful before where the Trial should be gives power to the party concerned to bring an Appeal who had not power to Appeal in that case before of Murther only in the County where the party dies and in that case can bring no Appeal of Manslaughter as in the streightned sense some would take the word Manslaughter by this Statute is declared That where any Murther or Felony which word Felony here cannot comprehend Manslaughter shall be committed in one County and there be Accessaries to the same in another County upon an Indictment found in the County where such Accessaries are guilty the Certificate of the Conviction or attainder of the Principal shall be good to proceed against such Accessaries So that if the Principal be not Indicted of Murther I conceive it is doubtful upon this Statute to proceed to the Condemnation and Judgment of the Accessary in another County for by no congruity can the words or Felony comprehend Manslaughter A Pardon of all Felonies will hardly pardon Manslaughter or be allowed of So in the 4th of H. 7. cap. 13. there are these words in the Statute Whereas upon trust of the priviledge of the Church divers persons have been the more bold to commit Murther c. because they have been continually admitted to the benefit of the Clergy as oft as they offended It is enacted That every one being once admitted to have the benefit of his Clergy if not within Holy Orders shall not a second time be admitted for such an offence And that every person so Convicted for Murther to be marked with an M upon the brawn of the left Thumb and for another Felony with a T. Here it is plain that the word Murther comprehend all manner of Manslaughter all manner of Felonious killing every Murther being Manslaughter and every Manslaughter then as Murther they being Termini convertibiles equally signifying the Genus of Man-killing you may perceive by what hath been said before that Felony cannot comprehend Manslaughter or Murther for here the one is to be burnt with an M for Murther the Felon with a T for Theft both which marks upon the respective Convictions are as I conceive in those Cases by vertue of this Statute observed to this day although we now apply the Letter M to such as the Jury of Life and Death upon an Indictment of Murther from the Grand Jury shall Convict of Manslaughter that is upon the point shall find this Special matter that is to say that there was no Malice expresse or implied in him that killed the other but in a sudden heat of blood occasioned by an actual not verbal provocation in him that was killed This contradistinction betwixt the two words Murther and Manslaughter as I conceive came into our Laws only since the Statute of the 23 H. 8. c. 1. that takes away Clergy that is will not accept of them to be Clerks that kill another maliciously I find not this distinction before either in the Levitical Laws the Laws of God or the Laws of England No Sanctuary or place of Refuge as is said before by the Law of God being allowed for such a distinction but both should have been pluck't from the Horns of the Altar and by our Law in both cases notwithstanding this Novel distinction they were equally admitted to Clergies I mean by the Common Law The said Statute of the 4 H. 7. c. 13. being the first Statute that I find that appoints burning in the Hand for Murther and Felony and takes away Clergy for the Second offence of the same kind where Clergy hath been allowed before and it is observable that in this Statute it is called Murther with or without the words Ex malitia praecogitata not having respect to our Modern distinction which holds only as is said in the enquiry of the Jury of Life and Death who have the whole matter of Fact before them with all the circumstances thereof as it ariseth from both sides which the Grand Jurors neither have nor ought to have Then comes the Statute of the 23 H. 8. formerly mentioned being the first Statute that takes away Clergy for the first offence of Murther called in this Statute Wilful Murther of Malice prepensed this Statute being made to rectifie the great abuse in Ordinaries in suffering notorious Thieves and Murtherers to make purgation and provides That no person which hereafter shall be found guilty after the Laws of this Land of any petit Treason or for any Wilful Murther of Malice prepensed