that had kill'd another by Chance-medly must and yet is to be Indicted Chance-medly being Manslaughter at Common Law Sure in all these cases and all other the like cases of Blood it is most prudent and safe for every wise and conscientious Grand Jury-man that is satisfied there is Blood spilt and the life of a reasonable Creature unjustly taken away by such a person charged in the Indictment rather to presume it probable all other Circumstances may be true as they are laid in the Indictment so far as to make an Accusation against a guilty person then that they are not and so to leave it fairly to the Court to judge thereof and themselves free from the imputation of Blood by concealment and thereby put the whole matter with all its circumstances upon a most legal and impartial Tryal many times that appearing upon Tryal that appeared not before And the reason why a Petit Jury or Jury of Life and Death may extenuate an Offence and make it less than the Grand Jury is because hearing of both sides they may inquire of Circumstances which a Grand Jury cannot Besides as the Lord Coke informs that Oracle of the Law An Indictment is no part of the Tryal but an Information or Declaration for the King and the Evidence of Witnesses to a Grand Jury is no part of the Tryal For by Law the Tryal in that case is not by Witnesses but by the Verdict of Twelve men and so a manifest diversity between the Evidence to a Jury and a Tryal by a Jury If the Indictment were part of the Tryal then ought he that is a Noble-man and Lord of Parliament to be Indicted by his Peers for the Tryal of him ought to be by his Peers but the Indictment against a Peer of the Realm is always found by Freeholders and not by Peers The French word Enditer signifies in Law an Accusation found by an Inquest of Twelve or more upon their Oath and the Accusation is called Indictamentum And as the Appeal is ever the Suit of the party so the Indictment is always the Suit of the King and as it were his Declaration as the Appeal is the Declaration of the party Some derive it from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to accuse and as properly may it be called Indictamentum ab indidicando quia aliquid notum facit dicendo he that Accuseth or Appealeth another man or brings his Crime into question indictatus quasi indicatus one that hath his cause shewed out in publick deferre nomen alicujus judicare to Indict is to Accuse or Impeach It signifies in our Common Law as much as accusatio in the Civil Law though it have not the like effect Accusabilis i. e. accusatione aut reprehensione dignus one worthy of Reprehension An Indictment being like the precious Stone of India called Indica which as Pliny notes in rubbing it breaketh forth into a purple sweat So doth an Indictment of Murther which though it seem white and pale in the Grand Jurors hands afterwards by rubbing and pressing hard in Court breaks out into a purple or bloody sweat as my self have very often seen experienced when Grand Jurors have many times made great scruple even to find the Indictment at all what comes from the Grand Jury is more properly called a Presentment For the constant form and words in all Bills are Juratores pro Domino Rege super sacramentum suum praesentant observe they are stiled Juratores pro Domino Rege only nor can they be otherwise for they are to hear none but the Kings Evidence upon his own Declaration And whoever is to advance as the Grand Jurors are but the Interest of one side ought as rationally to be permitted to raise and advance it to the highest pitch that by any reasonable presumption it will bear as the other side have liberty to extenuate it to the lowest degree and mean that art and cunning which in these cases of Blood are seldom wanting can bring it unto the one being upon an Accusation against a criminous person who hath had his hands in Blood and is certainly guilty in truth of something in the crime he is accused of The other only upon his own excuse who can never upon the whole matter excuse himself à toto from the whole Crime of Blood If they are satisfied that it is an Offence against the King's Peace his Crown and Dignity and the life of another person it is enough for them to present the whole matter to the Court as the Court hath directed and advised the Bill to them For every Bill of Indictment that is formally and legally drawn up is presumed to have been seen advised and directed as before is said by the Court and the King's Counsel upon an Information of the Fact taken by them as for the substance of it is meet and fit to be put into such formal and legal terms for the King as it is by the Judges sent out of Court to the Grand Jurors it being a common practice for the Judges according to the matter of Fact to direct upon what Statute and Law and in what manner and form the Indictment shall be drawn and sent to the Grand Jury that if they find only probable matter contained in it of accusation in any kind they may so present it to the Court as their Presentment or Accusation the word Presentment coming from the Latin word Praesentio to smell or scent before praesentire in posterum to have a sense of that which is to come so if they have any sense or smell of Blood in the Indictment it is enough for them to leave it to a further quest of what shall come after the Grand Jurors being like the good Huntsman that observing where the Hare hath lately prickt or the Deer lately struck or hath dropped blood lays in his Hounds and leaves them to make the discovery so indeed should the Grand Jurors do the Jury of Life and Death in Cases of Blood and that the Blood of their fellow Christians And thence likewise the Grand Jurors Presentment is called an Inquisition and themselves Inquisitors from the Latin word Inquiro inquirere quod vulgo dicitur facere Informationem for every Inquisitor is as an Informer a promoter of the Accusation to the Court in the behalf of the King that it may be more judicially enquired into and determined which is much like a Citation of a person into the Ecclesiastical Courts for a publick fame which is either fit to be enquired further into and punished or the party purged or pronounced Innocent or like the Masters of Requests to the King Honourable persons that view all Petitions and Complaints before they be presented to the King and determine what are fit to be presented unto the King and what are fit to be rejected A strong Suspicion and the Fame of the Country may in many cases be Evidence sufficient for a Grand Jury
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
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
practice is or hath been used to the contrary I conceive it fit to be better considered for it is not sufficient in all Cases much less in this without or against a Rule and Act of Parliament to justifie practice by practice this happily in the end might prove a Common Thief to be an honest man Besides observe the penning of other Statutes and that will give a clearer light to the understanding of these by the Statute made in the 27 of H. 8. c. 25. it was enacted That no person or persons of what estate or degree soever shall have power or authority to pardon or remit any Treasons Murthers Manslaughters or Felonies whatsoever they be c. Here you see the Makers of this Law mention the word and offence of Manslaughter in terminis and not leave it to be understood or to be comprehended in the word other Felonies though it is most comprehensively said or Felonies whatsoever they be So the Statute made in the first and second Ph. Mar. c. 13. That the Justices of the Peace one being of the Quorum when any Prisoner is brought before them for any Manslaughter or Felony before any Bailment or Mainprise shall take the examination of the Prisoner and Information of the Accuser and certifie it at the next Goal-delivery c. Here you see Manslaughter and Felony both exprest as necessary several times in the Act. So the Statute of the 23 H. 8. c. 12. that directs the manner of punishing of offences in the Kings Palace or House says All Treasons Misprisions of Treasons Murthers Manslaughters and other malicious Strikings c. and so divers other Acts of Parliament as might be shewed that make or intend any provision against Manslaughters do particularly name the word Manslaughter and never leave it to be intended or included in the word Felony It is true that by a Commission granted to certain persons to enquire of all Felonies they may thereby take Indictments of Murther though a Pardon of all Felonies will not avail him who hath committed Murther in regard of the Statute made 13 R. 2. 1. And the Commission of Oyer and Terminer made to the Judges every Assizes that enables them to enquire of all Offences hath these express words in it And of whatsoever Murthers Felonies Manslaughters Killings not leaving Manslaughters to be intended by the general words of Felonies or Killings Many more Inconveniences might be shewed but these with what hath been before shewed may be sufficient until better reasons appear to satisfie any understanding Grand Juror to esteem it much the better way to find such Bills Murther rather than Manslaughter there being every way less inconvenience in it in relation to the Laws of the Land until by the wisdom of a Parliament they are altered and much more of satisfaction and safety to their own private Consciences that stand so deeply engaged to discover Blood-guilty persons and to suppress and silence the cries of Innocent blood that by our Laws in the first place cries to Grand Jurors for Vengeance against the Murtherer and Manslayer It now remains that two Objections be answered that happily to such as do not well weigh and consider them may seem to be of some force against what hath been herein said to the contrary the one is The general liberty and constant practice Grand Jurors have taken ever since the making of the said Statute of the 23 H. 8. c. 1. to find as they please either Murther or Manslaughter not as the Indictment comes to their hands from the Kings Council but as they apprehend the Evidence that is brought to them taking upon themselves not only the sole Judgment of the Fact and what the Law is that ariseth upon the said Fact taking the Judgment of the Law therein from the Court although they hear but one side and putting in and putting out what they please in such Indictments notwithstanding it appears to them the party Indicted is guilty of shedding Innocent blood varying the species of Murther and Manslaughter as they please until after Arraignment of the Prisoner it be too late to amend it as I have often known The other Objection is and this seems to be of some weight and authority in Law against what hath been said That Mr. Justice Stamford in his book of The Pleas of the Crown is of another opinion viz. That a Grand Jury may find the Special matter in the Indictment that is to say that the Prisoner killed the other se defendendo or per Infortunium c. which the party upon his Arraignment may either confess or estrange himself from the fact and plead Not guilty To the first Objection as to the liberty and practice of Grand Jurors to the contrary so long used I Answer It hath been before in this Treatise sufficiently made out the great Inconvenience and mischief in Cases of Blood that is the consequence of such practice and that being granted as it cannot be denied I suppose no wise man will think that the long practice of such an Errour will justifie it or encourage the longer continuance of it in the highest Courts of Law and Justice and in so high and tender an Offence as the disquisition of Blood is although in Inferiour County Courts where many times are ignorant Judges and mean Clerks and in ordinary Offences this Maxime may hold good that Communis Error facit Jus that the common practice of an Error makes it the Law of the Court and not convenient to be altered yet I have never observed that Maxime to take place in the highest Courts of Justice in this Kingdom before the Judges of the Courts at Westminster Justices of Oyer and Terminer Justices of Goal-delivery and Justices of Assize who sit not to practice but to correct and destroy Errors of all kinds especially in Trials of mens Lives in Cases of Blood and whoever shall urge that Maxime against what I have here said doth by that sufficiently grant what I have here endeavoured to prove viz. the errour and inconvenience of such practice which ought no more to be continued than a long custome when it is found to be unreasonable but I shall never allow neither can it be proved that there hath been in this Kingdom such liberty and practice allowed and indulged by the Reverend and Learned Judges to Grand Jurors to find and alter Indictments brought unto them in cases of Blood as they themselves please and judge convenient they being as hath been said before not the Judges nor the Triers but Presenters of a fact of Blood fit for the Judgment of the Jury of Life and Death who only are the proper Judges of the Fact for none can be said to be proper Judges of any Fact in Controversie that hear but one side for Grand Jurors hear no more and therefore ought in Law Reason and Conscience where they find a guilty person that hath had his hands in Blood
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
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
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 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
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
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
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
a more diligent inquiry after Such distinctions and directions from the Judge being much more proper for a Jury of Life and Death when any Question of Blood comes before them to be considered of and to be tryed and determined who have the only means to do it by hearing all Parties all Evidence on both sides as also the directions of the Court as to the quality and nature of the Offence to give them a true light to make a right distinction therein It is well said by a Learned Writer of the Law An Indictment is an Inquiry finding some Offence against the King It was the Kings Action whereupon the Party shall be Arraigned or put to Answer by the King and tryed by another Jury Every strong suspicion of such an Offence though it be in case of Felony appearing of Record hath the force of an Indictment as in an Action of Trespass for Goods carried away if the Defendant plead Not Guilty and be found Guilty he is a Felon c. So in an Appeal of Murther if the Plaintiff after Declaration be Non-suit the King shall proceed upon that Appeal as upon an Indictment found So He. And as it is in Doctor and Student The Grand Jury is only charged with the effect of the Bill viz. whether he be guilty of the Felony or Murther in the Indictment within the Shire and not whether he be guilty modo forma as in the Bill is specified And so when they say Billa vera they say truly as they take the effect of the Bill to be so it is though the Bill vary from the day year and place so it vary not from the Shire as if there were false Latin in the Bill they might well say Billa vera for their Verdict stretcheth but to the Felony not to the truth of the Latin There is very much difference in Law betwixt an Inquiry and a Trial betwixt a Presentment and a Conviction besides the Judges do now give it in charge to the Grand Jurors and so part of their duty if not of their Oath that when they have such an Indictment of Murther come to their hands if they find upon their Evidence that the party said to be slain in the Indictment by the person there charged with it with the time and place and manner how they are to enquire no farther into the nature of it what offence this is in Law but to find it as it stands in the Indictment which for ought they know upon a further and more clear discussion of it in Court may appear as full as it is laid in the Indictment however it passeth fairly out of their hands they may more clearly than Pilate wash their hands in Innocency from the Innocent blood of such a person and very well discharge their Oath the Law and a good Conscience letting it pass from them with the Indorsment of Billa vera a Bill that hath truth in it fit to be considered further by the Court and another Jury And as Indictments at the Kings Suit do succeed Appeals at the parties Suit so ought they to be drawn and presented as large and as full for the King as an Appeal of death for the party which ever was for Murther if the party Appellant would so have it and that may very reasonably be applied to Indictments that the Statute of Gloucester directs in Appeals viz. That no Appeal shall be abated so soon as they have been heretofore But if the Appellant in an Appeal do declare the Deed the year the day the hour the time of the King and the Town where the Deed was done and with what weapon he was slain the Appeal shall stand in effect Now so great an exactness of the year day and hour is not required in an Indictment as in an Appeal being the only violent prosecution of the party in favour of life many Niceties were stood upon more than in other Actions And Mr. Justice Stamford says A man is not of necessity compellable at Common Law at this day to put into his Declaration the hour the day was necessary to be put down in an Appeal for if the Appellee can prove by certain Demonstrations and Testimony of credible Witnesses that he was the same day at another place at such a distance as it was not possible for him to be there the day of the committing of the fact or twenty miles off the same hour the murther was committed the Appeal shall abate Yea so many were the Niceties of Appeals which formerly were in use not only in Murther but in all cases of Felony and so full of Bribery and corruption in the easie composition of all sorts of Murthers and Felonies and did so much delay the Kings prosecution by Indictment which was not to begin until the year and day past after such Felony and murther in which time commonly the Appellant grew slow in his prosecution and was many times agreed with and by the end of the year Witnesses were dead and gone all was cold and forgotten as also that the Appellant must sue in proper person which suit was long and costly and made the party Appellant weary to sue For remedy whereof the Statute of the third of H. 7. was made That the King shall not stay until the year and day were past but proceed at any time after the Murther committed as also that the Appellant shall proceed in his Appeal by Attorney all helps the Law could devise to prevent delays in cases of Murther and to find out and punish the blood-guilty person observe the penning of that Statute were there nothing else to be said in this Argument how necessary it is that all Indictments be made Murther that are brought at the Kings suit within the year and day as the King by this Statute is enabled to do the words whereof are as followeth And if it happen that any person named as principal or accessary be acquitted of any such Murther at the Kings suit within the year and the day that then the said Justices shall not suffer him to go at large but either remit to Gaol or Bail him at discretion until the year and day be past And further in the said Statute it is said If the MURTHERER escape the Town shall be amerced as also that the Coroners shall return their Inquisitions before the Justices of Gaol-delivery and they shall proceed against such Murtherers and as it is before in the said Statute The King shall not stay until the year and day were past but proceed at any time after the Murther committed So that prima facie the Statute looks upon all Manslayers unlawfully to be guilty of Murther And so the Indictment ought to be drawn or they cannot be continued in Gaol nor Bailed by this Statute until the year and day be out nor the Town amerced for such escape nor the offender proceeded against by the King within the year and day
by Indictment Now generally in these days since the making of that Statute all proceedings in Murther and Felony are by Indictment at the Kings suit not but that the prosecution by Appeal is still in force and the party hath his election which way he will proceed either by Appeal at his own suit or by Indictment at the Kings suit yea even after the Trial had by the Kings suit in some cases although at the Kings suit they have been acquitted of the murther but that the abuse of these and many other obsolete Laws hath taken away the frequent use of them except it be through the miscarriage of Grand Jurors and Jurors of life and death in cases of murther the one in not fully presenting the murther the other in not conscientiously giving a Verdict according to their Evidence and thereby provoking the party whose Relation is slain to the nice and chargeable remedy of an Appeal upon such Appeals several have been executed after they have been acquitted by trial at the Kings suit upon Indictment one Woman in my time in Berkshire for petty Treason for killing her Husband after she had been acquitted for the same fact at the Kings suit by Indictment was convicted upon the Appeal and burnt at a stake Look how high the Appellant shall draw his Appeal against the Appellee or Defendant as if for Murther in this case if the Appellant shall surcease to prosecute such Appeal as by Nonsuit Release Retraxit the Woman by marrying a Husband pendente lite or by the Act of God as if the Appellant die or by the Act of the Law as if the Appellant take the priviledge Now in all the former Cases where the Appeal ceaseth by the Act of the Appellant that is he that prosecuteth the Appeal after declaration in the Appeal the Defendant shall not go at liberty but shall be Arraigned upon the same Declaration at the Kings suit for that it doth appear by the Declaration there is a Murther committed and the year day and place when and where the same was committed and the same is not tried and the Law will not allow such great Offences whereof it taketh notice to be concealed and remain unpunished neither will the King at his suit suffer it to be extenuated into a lesser degree of Murther than the Appellant did so careful have the Laws ever been in punishing of Murther and revenging Innocent blood which it seems and as before is observed whilst Appeals were in use and the Kings suit must stay until the year and day were past many Murtherers escaped unpunished and the killing of men was made as now it is a trick of Youth Valour Hectoring and Jest in regard of so great impunity it found by frequent Pardons Indulgence of Grand Jurors and others And truly it is much with us in this Age as it was in those daies when Appeals were in use and had the preheminence of the Kings suit Never more killing of men by Duels Tavern and Game-house Quarrels and yet never more impunity to such Mankillers such valiant murtherers of their fellow Christians especially if the Mankiller have either a fame for Honour or Valour Mony or Interest of Friends to procure pity or pardon and compassion from the Grand Jury to find it Manslaughter if they will go so high where it is Murther and then through that false glass to represent it to a most Merciful King and thereby obtain a Pardon for the whole offence or else upon his Arraignment shall confess the Manslaughter and procure a respect of his burning in the hand because a Gent-hand killed the man and afterwards procure a Pardon for that burning in the Hand which the King may grant it being no part of the Judgment but a notifying the Person that by that Mark he may be known again once to have had his Clergy that he may not have it a second time Many Recent and fresh Instances in particular Cases of blood might be given were it safe or seasonable to make reflections of divers Murthers that have too easily slipt through the hands of Justice by the aversness ignorance or partiality of Grand Jurors in not observing the direction of the Judges in this particular of finding Bills Murther instead of Manslaughter yea and that many times upon directions given in Court after open Evidence which open Evidence to a Grand Jury especially in Cases of blood ought to be avoided as much as may be in regard it doth too much lay open and betray the Kings Evidence to standers by it may be Friends of the Prisoner that may make too much use of it for the benefit of the Prisoner and prejudice of truth besides many Witnesses although upon their Oath will not speak so fully in Court before the Bill found and happily in the presence of the Party or his Friends as in a Grand Juries Chamber more private besides where it is before-hand known what witness-pinching endeavours will be used to keep him off or by some sinister way to be complied with to lessen or hinder his Testimony to the second Jury if there be occasion besides the Kings Evidence before Issue joyned betwixt the King and the Prisoner is alwaies to be secret only open to the Grand Jurors who are alwaies styled Juratores pro domino Rege the Kings Jury and are sworn to keep the Kings Counsel their Felons and their own now the Witnesses for the King are said to be of the Kings Council which would abate much of their Oath if Evidence and the Kings Informations in Cases of Bloud should be open and common And as you have heard what great Inconveniences were in the use and abuse of Appeals in the Reign of King Henry the Seventh so indeed as many if not more Instances of mischief and inconvenience might be given of Grand Jurors in this Age the best things corrupted proving the worst you may conceive what great complaints have formerly been made against Grand Jurors in Parliament in erring upon both hands by taking too much liberty to themselves and not observing the directions of the Court that there was a necessity of making an Act of Parliament in the 3 H. 8. immediately after Appeals began to fall off as you may read in that Act of Parliament made to reform them and to reform the Sheriffs power in retorning them the whole Authority of retorning Inquests to take Indictments being by force of the Statute of the 11 H. 4. in Sheriffs and Bayliffs of Franchises It is observed by the Statute of the 3 of H. 8. that by reason of Bribing of Sheriffs and their Bayliffs and Officers many true and substantial persons were divers times wrongfully indicted of Murther Felonies and other Misdemeanours to the utter loss of their Lives Goods and Lands And sometimes also great Felonies and Murthers were concealed and not presented by the Grand Jurors partially retorned by the Sheriffs or their Ministers for the prevention whereof it was
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
Murther for the word conceal in the Statute relates not to the Body of the Infant but the death of it the words being these Shall so conceal the death thereof that it may not come to light that is to the knowledge of one Witness at least whether it were born alive or not but be concealed she shall suffer death as in case of Murther If she can prove by one Witness it was born dead then her hiding or burying it afterwards will not be Evidence against her to take away her Life upon that Statute These two Statutes create no new Offence that was not Felony and Murther before but only take away Clergy in those two cases the one of sudden and desperate stabbing then frequently in use the other of lewd Whores who having committed one sin to avoid their shame and the charge of a Bastard would commit a greater by trusting to their own strength in their Delivery that they might more privately destroy the Infant and yet avoid the danger of the Law because in that case none for the King could prove the Child born alive and therefore it was impossible to Indict and Convict her at the common Law for Murther although really and in truth it were so This Statute makes the Supposition good for the King to the Grand Jury and Jury of Life and Death and to the Judgment of the Judge in point of Law that the Child supposed to be murthered was born alive and by her murthered in regard she being a lewd woman and contrary to the Custome of honest and innocent women who always desire help in their Labour chuseth to be delivered alone this Statute puts the proof upon her if she will avoid so strong a presumption of Murther to be sure to have one Witness to prove the Child was born dead It being likewise strongly presumed that a woman without help of some other cannot be delivered of a Child at full growth dead in the Womb. Two remarkable Cases I have known in my time upon the said Statute of 1 Jac. in Oxfordshire Circuit the one in Mr. Justice Jones his time a Learned Judge that went Sixteen years together that Circuit where the Case was A cunning desperate Fellow having an intention to stab another person and yet to avoid coming within the danger of that Statute had to that purpose provided himself of a Dagger naked in his Pocket he being never known to wear any before came into an Alehouse where the party was he intended to stab and at first coming used very friendly Language unto him but afterwards all the provoking Language he could to make the other strike him which the other no sooner held up his stick to have done but he stabb'd him into the Body with his Dagger whereof he dyed No malice could be proved yet so much of his intention by his preparation and circumstances appearing to design the stabbing of the other that it was adjudged to be within the meaning though not within the Letter of the Statute the Lord Chief Baron Davenport being the other Judge of that Circuit and he was denyed his Clergy and after Judgment was Executed It being then observed by the Judges That immediately after the making of that Statute many desperate Fellows that could read as Clarks to those they had a mind to quarrel withal would use all means to make them strike first and then suddenly stab them and by this way avoid the said Statute and become guilty only of a Manslaughter at Common Law and so receive the benefit of Clergy which the Statute takes away The other Case was in the same Circuit very lately before Mr. Justice Windham at the Assizes at Worcester a little before his death Where a Father correcting his Son for some undutifulness he conceived in him having a Knife in his hand being eating his dinner struck his Son over the back with his knife and gave him a stab whereof he died The Judge apprehended this Offence to be within the Statute notwithstanding that Exception in the Statute of a Father correcting or chastising his Child or Servant in regard it was an unreasonable way and means of correction whereupon he reprieved the Father for some short time and advised with the rest of the Judges at Serjeants Inn and after he had their Opinions that it was within the Statute he forthwith sent down a Warrant to the Sheriff to do Execution having received Judgment of Death at the Assizes and yet the words of the said Act of Parliament are although his Son or Servant dye of such correction he shall not be within the said Act Observe here how necessary it is That all the circumstances that can be in an offence of blood be put into an Indictment and be so found by the Grand Jury as it is advised by the King's Counsel where there is innocent blood shed by the party indicted that every part and circumstance of the Fact with all its aggravations may come to be considered and weighed by the Court which otherwise cannot be as in this Case of the Father killing his Son if the Indictment had not been drawn upon the Statute but at Common Law in regard of that Exception in the Statute as the Grand Jury then would have had it the party had been capable of Clergy and so might have escaped that Judgment of Death If such difficulties appear to the Learned Judges upon due consideration of the Law and of all circumstances in cases of blood how much more will it prove difficult to Grand Jurors and how little reason have they to expunge alter and obliterate circumstances of aggravation in such an Indictment upon hearing only of one side as they please and so prevent the Judgment of the Court therein taking from them the power even to examine such a circumstance as may if truly stated and examined rule the whole Case as before is observed In all the Offences formerly mentioned where Clergy is taken away by those Statutes there is no new offence of Felony or Murther made that was not so before the making of those Laws as might be instanced in Murther Robbery Burglary Sacriledge Cutting of Purses Stealing of Horses Rape and the like but only Clergy taken away from the Offender which is no more but the abusive bloody liberty of Clerks in those times restrained as wilful Murther where malice appeared and other mixt and simple Felonies which were then most raging and reigning Offences in the Kingdom and cryed out for a greater Remedy a stricter Law to be made against them as appears by the Preambles of those Statutes that take away Clergy in those Special Cases that were Murther and Felony at the Common Law before from whence I conclude that the Forms of Indictments of Felony or Murther are no way directed to be altered by those Statutes that take away Clergy but are to continue in the same form as they did before at the Common Law And I
am not of their Opinion That the words ex malitia praecogitata came into Indictments immediately after the aforesaid Statute of 23 H. 8. Certainly there were Murthers committed and that frequently of malice fore-thought before the making of that Statute and those Murtherers had their Clergy also otherwise that Statute had never been made to take it away If the Grand Jurors shall say They will not find those words Ex malitia praecogitata put into the Indictment except the malice be plainly proved to them then farewel that distinction and inference of implied malice which the Law makes in many Cases and which otherwise cannot be made they may as well say That they will not find such words Treason that are Treasonable because no Act of Parliament or express Case at Common Law says those particular words are Treason or that they will find no Indictment of Burglary although the Goods stoln be found with the Thief and the dwelling House broke because no Witness stood by to see the breaking of the House entring into it and stealing thence the Goods Or against a Cut-purse though the Purse or Mony be found in his hand or because none see him take it forth of his Pocket or to find the Indictment because it is laid to be done Vi armis with force and arms and yet said to be done in the same Indictment clam secrete sine notitia privily secretly and without notice of the party which in Fact could not be done if it were done by force or arms Or to find an Indictment of Robbery done upon the High-way against those that rob in Vizards notwithstanding the mony be owned and found about them because the party cannot swear he saw their faces and that these were the men Or that such a one kill'd a man that comes out last from him with a bloody Sword in his hand and no person besides with him In all these Cases it is possible the Parties accused might find the Goods stoln and so might the bloody Sword be sound and another do the Fact but sure here is great and violent presumption sufficient for an Accusation for a Grand Jury to find an Indictment which is but an Accusation upon Record to bring the Delinquent or Party so strongly suspected to a Judicial Trial and as well may it be presumed when one Christian is kill'd by another it may be Murther that there may be a seed of malice in the will of him that did it by a voluntary and spontaneous motion in that act that may upon a greater Debate contain some circumstance in it that by some reason in Law better known to the Learned Judge than the Grand Jurors that may in Law prove malice expressed or implyed in the criminous Person And if it be so difficult in cases of blood for Grand Jurors to determine what is Murther and what is not let them consider how dangerous a thing it is for them to miscarry in their Presentment in cases of blood of innocent blood as is before manifested and so acquit the Murtherer and take the imputation of blood-guiltiness with them from the Assizes to their respective Families where it may and will cry against them and the whole Kingdom for vengeance I do therefore submit it to their serious consideration upon what hath been said Whether it be not much better and a safer way for them to submit their Judgments herein to the Rule of Law and the Resolutions of the Learned Judges than by their extenuating presentment for the Court can go no higher than they present to stifle Justice in the birth and to acquit a Murtherer For the Indictment although no part of the Trial yet is the very Basis and Foundation of all the other Proceedings And let them consider how strict formerly the very Law of England was in King Edward the Second's time in cases of blood where the very will and intent to kill a man although it was not executed was punished for the Deed although the party wounded recovered of his wounds A memorable Case there was in that King's Reign cited by Justice Stamford where one compassed the death of another and did so grievously wound him that he left him for dead but afterwards the party recovered this was then adjudged Murther because his will appeared so plainly to have kill'd him For as Bracton says In maleficiis spectatur voluntas non exitus then was the Will by our Law as it is yet before God reputed for the Deed But now our Law couples the Will and the Act together in cases of blood but looks more upon the Act than the Will For though the Will do neither intend the Act as it is done nor approve of it after it is done yet if the Will in any part of the Act be criminous it makes the Offender in our Law in cases of blood guilty of the whole Fact with all the obliquity and evil in it As if a man intend only to beat another to strike him but not to kill him and the party die of the stroke it may be murther in him that gave the stroke So if three men come to make a Disseisin and one of the three kill a man the other two persons are guilty as principals in the murther although they neither consent to it will it or strike the Party nor came with that intent but only were in company to have done another Act. So if one to kill his Wife give her lying sick Poyson in a roasted Apple and she eating a little of it give the rest to a little Child of theirs which the Husband lest he should be suspected suffereth the Child to eat who dieth of the same poyson this is murther though the Wife recover for the Poyson ministred upon malice prepensed to one which by a contingency procureth the death of another whom he meant not to kill nor bear any malice to shall be as great an Offence as if it had taken the effect which he meant proceeding from a naughty and malicious intent So where two men combat together upon the evil and provoking words of a woman and the one killeth the other the woman in this case was Arraigned of the death of him that was kill'd and in this Case the Grand Jurors found it murther So if an ignorant person take upon him to give Physick to one that is not well and through his ignorance administreth that unto him that apparently kills him this is murther And so it might be instanced in many similar Cases which are not to be disputed by Grand Jurors but presented by them in re forma as the Indictment is advised by the King's Council and comes to their hands where they find as before is said a criminous Party in the Indictment and a Body found of a reasonable Creature certainly or probably kill'd by him although the Evidence be not express to every circumstance of aggravation as it is laid down in
the Indictment whereby to bring the Party and his Offence of Blood to a full Trial by a second Jury which otherwise can never be done neither the Law therein known from the Court in such a Case Besides many other Inconveniences and doubts may arise where the Grand Jury find the Bill of Indictment only Manslaughter which by finding of it Murther would be prevented as in challenging upon his tryal above the number of twenty Jurors the Statute of the 22 H. 8. c. 14. reduceth peremptory challenge upon an Indictment or Appeal which at the Common Law was allowed to the Prisoner to challenge thirty five Jurors which is under the number of three Jurors this Statute so provides That a Prisoner shall not now in Petit Treason Murther and Felony challenge above twenty Jurors without shewing cause And in case of Treason and misprision of high Treason it was taken away by the Statute of 33 H. 8. but now by the Statute of 1 2 Phil. Mar. the Common Law is revived for any Treason the Prisoner shall have his challenge to the number of 35 and so it was resolved by all the Justices upon conference between them in the Case of Sir Walter Rawleigh and Geo. Brooks By this Statute it is plain that if one be Indicted or Appealed for Murther and challenge above the number of twenty Jurors peremptorily without shewing cause it shall be a Conviction of the offence and Capital but it is a great quaere whether he that is Indicted or Appealed only for Manslaughter which is not named in this Act nor can be rationally comprehended in the word Felony more than Murther might have been may not challenge thirty five Jurors as at Common Law so it may be a quaere where the Prisoner Indicted only of Manslaughter shall stand mute or will not answer directly to the Indictment whether notwithstanding he shall not have his Clergy for the Statute of the 1 of Ed. 6. c. 12. and other Statutes that take away Clergy from such offences and Offenders as are therein mentioned take it away as well from such as stand mute answer indirectly or challenge peremptorily above the number of twenty as from those that are convicted by Verdict or Confession upon their Arraignment otherwise such as stand Mute answer indirectly or challenge peremptorily might have had their Clergy as the Act seems to imply otherwise it had not taken Clergy away in those cases The Judgment of Paine for t dure that is Pain grievous and durable was not at the Common Law but ordained by the Statute of West 1. made Anno 3 Ed. 1. whereby it was enacted That notorious Felons openly known of evil name who will not put themselves upon Enquests of Felonies which men do prosecute at the Kings suit shall be put in hard and strong Prison as they which refuse to be tried by the Law of the Realm but this is not to be intended of Prisoners which be taken of light Suspicion By which Statute it doth appear that none shall be judged to this pain if there be not evident or probable matter to convince him of the offence whereof he is arraigned or otherwise that he is a notable Thief or openly known to be of Evil name which the Judge ought strictly to examine before he proceed to this Judgment against him it would be very hard which the Law is never in favorem vitae to extend this Statute to Manslaughter which may be suddenly committed by one of good name and fame and not a notorious Thief as this Act mentions and yet may have an obstinate humor to refuse Trial challenge peremptorily and make indirect Pleas. It is the severest Judgment that I know the Law passes upon any Offender and therefore not to be extended further than the plain understanding of the words of the Act a Sentence so severe that I think never English man as yet though many have been Prest to death had the heart to execute it according to the letter which Sentence is as followeth That the Prisoner shall be sent to the Prison from whence he came and put into a Mean house stopped from light and there shall be laid upon the bare ground without any Litter Straw or other covering and without any Garment about him saving something to cover his Privy members and that he shall lie upon his back and his head shall be covered and his feet bare and that one of his Arms shall be drawn with a Cord to one side of the house and the other Arm to the other side and that his Legs shall be used in the same manner and that upon his Body shall be laid so much Iron and Stone as he can bear and more and that the first day after he shall have three morsels of Barley-bread without any Drink and the second day he shall drink so much as he can three times of the Water which is next the Prison-door saving Running-water without any Bread and this shall be his Diet until he die Another inconvenience may arise where the party Indicted and Arraigned only of Manslaughter shall plead a Forrein plea of something done in another County to the delay of Justice the Statute of the 22 H. 8. c. 14. only providing in cases of Petit Treason Murther or Felony that Forrein pleas in those Cases shall be tried before the same Justices before whom such persons shall be Arraigned and by the same Jurors of the same County that shall trie the petit Treason Murther or Felony If a man be Indicted of Treason he may plead a Forrein plea which shall be tried in another County otherwise in cases of Murther Petit Treason and Felony Another inconvenience may be upon the Statute of the 6 H. 8. c. 6. By that Statute the Justices of the Kings Bench are impower'd to remit the bodies of Felons and Murtherers removed thither to be tried in the County and their Indictments removed into that Court which before they could not do by the Common Law because a Record that is once brought into the highest Court could not be remanded to an Inferior Stamf. fol. 157. this Statute only provides in case of Felony and Murther not Manslaughter The last Inconvenience I shall mention though I could many more by reason of Indictments of Manslaughter will be in Cities and Burroughs and Corporations that have power to try Murthers and Felonies the Statute of the 23 H. 8. c. 13. provides That in Trials of Murthers and Felonies there proceedings shall not stay as formerly or be delaied by reason of challenge of such Offenders for lack of sufficiency of Freehold to the great hindrance of Justice but that if the Jurors be worth in Monies and personal Estate Forty pounds they shall not be challenged but admitted It will be a very extorted construction that upon this Statute and the others before shall bring in Manslaughters under the word Felonies whatever
and unjustly taken away the Life of another person to leave it as an entire fact of Murther to the Trial and Verdict of the second Jury to find the truth of the Fact upon hearing of both sides and receiving the Judgment of the Court in what species or degree of Murther it is which likewise if any doubt or point of Law arise in the Case as many times it doth they may find it specially which a Grand Jury cannot and thereupon receive the opinion of all the Judges of England Murther being the Genus of the several Species and in common acceptation he is accounted a Murtherer that kills any man or reasonable Creature unlawfully and the Commandment is Thou shalt do no Murther which certainly comprehends all unlawful killing otherwise that command is not well translated from the Text Non Occides Thou shalt not Kill and in my own experience for above forty and five years in one Circuit I have very often known many Learned Judges such as Mr. Justice Doderidge the Lord Chief Baron Davenport Mr. Justice Jones Mr. Justice Whitlock and many others often rebuke and reject the Presentments of Grand Jurors in Cases of Blood and other Felonies where they have either varied from their Evidence or from the Law the Judges before hand having received some light of the nature and testimony of the Fact from the Informations and Examinations therein delivered into the Court by the Justices of the Peace and Coroners a very good Rule for Judges to observe and often either put it upon an open Evidence in Court which is very inconvenient or discharged them of such a Bill and bound the Witnesses over to the next Assizes which is also very inconvenient in regard Witnesses may die or the Prisoner may die and so the Forfeiture is lost and the offence unpunished and in Cases of Blood there will be too much opportunity given for compounding and making an Interest with the Prosecuter and Witnesses and in these modern times since the happy return of our most gracious Sovereign King CHARLES the second I have known several learned and pious Judges some since dead others yet living and eminent upon the Bench in Oxfordshire Circuit Fine and Imprison several Grand Jurors for their miscarriage and misdemeanour in delivering in Bills of Manslaughter instead of Bills of Murther against the clear and positive directions of the Court. And this may serve for answer to the first Objection from the liberty and affected practice of Grand Jurors in finding of Bills in Cases of Blood according to their own humor and apprehension to introduce a Law that therefore they may find them as they please notwithstanding that the Court adviseth and directeth the drawing of them MURTHER To the second Objection of Mr. Justice Stamford in the place before cited where he saith that whereas the Statute of Glouc. c. 9. saith That he ought to put himself in an Inquest de bono malo this is only intended saith he when he is Indicted of Murther or Manslaughter and not where in the body of the Indictment the Special matter is found as if the Grand Jury may find especial Verdict of per Infortunium or se defendendo c. I answer to this Objection Certainly Mr. Justice Stamford though a very Learned man did well consider this matter and his Opinion therein when he set it down for he informs you not what shall become of such an Indictment where only the Special matter is found by the Grand Jury whether the party may Traverse it for it is but a Trespass or confess it and so have his Pardon of Course upon such confession and then the Judges that are to make the Report or Certificate of the nature of the fact to the King in Chancery must Certifie like blind and deaf men that never saw or heard any thing of the merit of the cause nor understand any thing by evidence of the nature and circumstance of the Fact like the Lay-zealot must believe as the Priest believes preferring Obedience before Truth but sure no prudent and pious Judge will make such a blind Certificate in case of Blood Besides whoever shall judiciously and impartially compare and weigh the Statute of Marlebridge and the Statute of Gloucester together and the reasons of the Statute of Gloucester what mischief it was made to prevent and consider but the nature of the thing will never be of his Opinion in this particular there is so little of reason or true meaning of either of those Statutes in it The words of the Statute of Marlebr are these Murther from henceforth shall not be judged before our Justices where it is found Misfortune In the time of this Statute it seems there were two Juries the Grand Jury and the Jury of Life and Death to present and try the Offences of Murther otherwise the Justices could not judge of it they never passing Judgment upon a Grand Juries presentment which by the way shews that it is left to the Judges not the Grand Jury upon the examination of the cause in trial by the Jury of Life and Death to judge of the nature and circumstances of Murther and of what species or degree it is This Statute of Marlebridge did only declare a new Law that where it was found per Infortunium or se defendendo it should not be Felony and Murther as it was before that Statute but that the party in such case should have upon Certificate of the Justices before whom he was tried his Pardon of course happily then upon the Presentment of the Grand Jury which might be the occasion of this erroneous Opinion of this Learned Judge Then comes the Statute of Gloucester as if the other had not been truly understood or at least had not sufficiently provided for offences of Blood and in plain words as before is mentioned commands That he that kills a man by misfortune or in his own defence or in any other manner without Felony shall be put in Prison until the coming of the Justices in Eyre or Justices of Goal-delivery and shall put himself upon the Country for good and evil that is for life and death which cannot possibly be understood where the Grand Jury find it but per Infortunium or se defendendo c. for that is not Felony and so cannot be Arraigned thereupon whereby to put himself de bono malo so as to bring the matter to Issue between him and the King nor can the Judge in that case as is said before make a true and right Certificate of the offence and matter of fact which must be specially and truly certified according to Law whereby to procure a pardon as that Statute expresly requires And if the party shall plead Not guilty to that Special matter found by the Grand Jury what can that signifie as before hath been shewed for the Jury that is charged with such Indictment must either find the party guilty in Special manner as it
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