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 Murder, and that the Grand Jury ought to find it Murder, 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. Dunstan's Church in Fleetstreet. 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 passed under the Title of A Preface, and therefore might have excused this: in which I shall endeavour to show 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; show 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 Undertaking; 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 Murder, contrary to the sense and direction of the Learned Judge, and of the King's Council, whereby a Murderer 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 Judgement 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 Murder. 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 showed) they become their own Accusers, must be accused by a Grand Jury, and convicted or acquitted by another; and afterwards (if guilty) receive Judgement 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 showed 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 kill of a Reasonable Creature, must be Murder. 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 overlooks 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 Sovereign) 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, 
Duellum, quasi duorum bellum.  when Duels are so frequent in England; 
Done without Authority, is a war against Authority.  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, 
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.  in a Playhouse, the Tavern, or the like; and this must not only engage the two differing Parties (although Persons of Quality) to sacrifice their own Lives, 
Infoelix pugna, ubi majus periculum incumbit victori quam victo.  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 justify 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 myself 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 myself 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 Murder, Manslaughter, etc. what every unlawful kill 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: 
† The Oath of a Grand Juror.  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 slothful or negligent, being quickened 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 Understanding, are intended the general Heads of all Offences by them Inquirable; As all Murders, and that comprehends all manner of unlawful kill: All Felonies, and that comprehends all manner of stealing; and so of other general Heads of Offences here Inquirable, as Perjuries, Forgeries, Misdemeanours, etc. although the Learned Judge (where he hath time and leisure) doth in his Charge, when he speaks of Murder, 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, etc. by the hands of such a one, is proved unto them so far, as in their Judgements 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 Murder delivered by the Court unto them, is to be found by them, where (as hath been often said) the unlawful kill 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 King's 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 King's 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 King's 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 King's 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 Traitor, a Murderer, 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. 
Stamf. fol. 36. 27. lib. Ass.  lib. Ass. upon his Indictment was acquitted; but the Lo. Coke in his third Institutes fol. 107. says, Certain it is, that such discovery is accompanied with Perjury, and a great Misprision to be punished by Fine and Imprisonment. And it is well provided by the Oath, that each Juror is sworn to keep his own Counsel also; for he that will not keep his own secrets, will hardly keep another's.  
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 merely for any favour they have for the person: This is so plain, it needs nothing but practice; these two seem very easy, but indeed are very difficult to flesh and blood, Not to take revenge when one hath power to do it, and not to show 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 Murder, or unlawful kill (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 Murder; the Common Law accounting all felonious and unlawful killing a reasonable Creature Murder, until the difference and distinction appear upon the Verdict of another Jury, that are to try it, and the Judgement of the Court in point of Law upon that Verdict. Observe the Note in the Margin, 
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.  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 kill is Murder 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 satisfy his 
* 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.  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 expressed 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 King's 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) joins Issue by Cull prit, viz. that he is ready to prove him guilty; and so the Issue being thus joined, Evidence for the King is given against him upon Oath, to which he makes his defence in person, or by 
* If he have Council, he must pray it before he plead Not guilty, he cannot after. 3. Inst. fol. 129.  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 
† 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 Judgement they attaint the Prisoner. 3. Inst. 137. fol. 29.  Negative can be proved (upon Oath) against it; and after a full trial of what can be said and proved on both sides, and a convenient time taken by the Jury to consider of it, they bring in their Verdict, either convict him or acquit him; either find him guilty according to the Indictment found by the Grand Jury by hearing of one side, or specially as they find the fact by hearing of both sides; for they are not bound strictly to the matter and form of the Indictment, as the Grand Jury have found it, for they may by Law extenuate it to the least degree of offence, that can be in that kind, but they cannot aggravate it, or exceed above what the Grand Jury have found; for if they might do so, they would become Accusers as well as Tryers, which would be against the Laws and liberty of the Subject: And therefore the Grand Jurors have the greater reason, to enlarge in their Declaration or Accusation for the King (as in all Declarations at Law is usual) as far as the Law will heighten all offences in Blood, 
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.  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 myself 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 repent 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 unbiased in their Opinions, and of more moderation and ingenuity (if they dislike) will publicly 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 entered 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 Murder, 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 battle, 
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, Murders, Felonies and Misdemeanours, 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-customs, nor be Outlawed, banished, or in any manner destroyed, etc. but by lawful Judgement of his Peers, or by the Law of the Land. This Chapter of Magna Charta is partly repeated in a later Statute, 
a 25 E. 3. 4. 5 E. 3. 9 42 E. 3. 3. Vit. Abbot St. Alban. 143.  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, 
b 37 E. 3. 18.  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, 
c Cook 3. Inst. Tit. Indict. 136.  as it is well observed by the Lo. Cook (that Oracle of the Law) In pleas of the Crown, and other Common offences and Nuisances, 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 Murderer cannot be convicted 
d Except by Utlawry.  or attainted (though he confess the Felony or Murder) until a grand Jury have presented the offence; nor can any person (generally and ordinarily be convicted or attainted, or have Judgement 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 
e No Peer, or Subject, can be Convicted by Verdict; but the Offence must be found by twenty four. . The Grand Jury coming from all parts of the County 
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. , 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 Judgements (being of good Education) or last (which I conceive the best reason) that, propter excellentiam, they are styled 
g The King's Jury.  Juratores pro Domino Rege pro Corpore Com. Jurors for our Sovereign 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 virtue, 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. 
h Jus à Jovis nomine. Jus qu. Jovis os; omne enim Jus & Justitia à Deo est.  It is called Justice because it is the Standard of Right, misera servitus ubi Jus vagum. Justice being one of the Cardinal virtues ought to be attended by none but the virtuoso, the most virtuous, pious, and ingenuous persons; probi signifying, not only faithful, but skilful; none can be presumed to be faithful in keeping an Oath, 
i v. Statut. 3. Ed. 1. c. 11. Forasmuch as many being indicted of Murder, and Culpable of the same, by favourable Inquests taken by the Sheriff, and by the Kings Writ of Odio & Atia be replevied unto the coming of the Justices in Eyre. It is provided such Inquests shall be taken by lawful men chosen out by Oath (of whom two at the least shall be Knights) which, by no affinity with the prisoner, or otherwise, are to be suspected.  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 Judgement of it? Will a Liar present a truth; a Thief convict his fellow thief; a Man of blood a Murderer? or, Who can expect Justice from him who neither to his God nor to himself is just, 
5. H. 7. fol. 5. Coke l. 9 f. 56. 9 H. 3. c. 26. 6 Ed. 1. c. 9 Regist. fol. 133.  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 Judgement (as in the Scripture sense it is truth, and aught 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, 
Juramentum quod ment Juratur.  quoddam Evangelium, as the Gospel they swear upon, dictum veritatis, the saying of Truth itself (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 
k In respect of the Grand Jury.  Petty Jury, yet a Jury of life and death, which the Grand Jury are not; although they inquire 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 Judgement 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 Judgement 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 alleged 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 Judgement 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 
l Coke Instit. 3. fol. 232. Glouc. Assizes xiij. Car. 2. Regis (Harrison 's Case) Nimia praecipitatio & merosa cunctatio; two dangerous extremes.  Cases noted in the Margin; a sufficient caution to all Judges, not to try any for Murder, 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 Juryman; for in one sense he is not legalis homo, that is not ligeus & subditus Dom. Regis Angliae, 
vi. Coke 3. Inst. fo. 32. tit. Petit Treason.  for the Law provides that the King's 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 Judgement, 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, 
He is liber & legalis homo, that is a man of fame and credit, that doth enjoy liberam legem. Coke 3. Inst. fol. 22. 11 H. 4. Coke 3. Inst. fol. 32.  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 perplexed 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 Judgement upon the Verdict; there being much more of Black-art used to darken and obscure the truth of the fact (in cases of Blood) amongst the Jurors (especially if either a great Person, or rich, be concerned therein) than possibly can be, to prevent or prevaricate a right Judgement, in the Judge; or by any dust of gold, power or favour, to put out his eyes, or falsify 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 
m 'Tis hard to get an unbiased Jury. Some serving, that had more need to be relieved by the 8 d. than discretion to sift out the truth of the fact. , to obey a Superior, 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 
n Coke 1. Inst. 272.  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, always prove the worst; the sweetest Wine makes the sharpest Vinegar, not that the fault is in the Wine, but in the use and abuse of it: were better care taken in return of Jurors 
o In ancient time the Jury, as well in Common Pleas as in Pleas of the Crown, were twelve Knights. Glanvile lib. 2. c. 14. & Bract. fol. 116. , I dare say, the trial by twelve would not be more ancient than excellent; the Excellency of it appears, in the long, constant, and general use of it amongst the people of England. This way of trial, to have all their Estates, Injuries, and Lives tried by twelve men, and those Neighbours, of our own degree and parity, and without exception (upon a lawful challenge) certainly nothing can be said more for the commendation of it, than the constant practice, and unanimous approbation of it in England, to this day, since the first beginning of it: The trial by twelve being very ancient, though Mr. Daniel, and Polydore Virgil deny it to be ancienter than the Norman Conquest. But Polydore (as says the excellent Sr. H. Savil) was an Italian, and a stranger in our Commonwealth, and so deceived! 
p Lamb. in verbo Centur. D. Spelman in Jurat. vide Consult. de Martic. Walliae v. 3.  It is of English Saxon descent, as by the Laws of King Etheldred, cap. 4. thus; In all Hundreds let Assemblies be, and twelve Freemen of the most ancient together shall swear, not to condemn the Innocent, nor absolve the guilty. It was in use with the French, in the Age of Charlemagne. They that would see more of this, let them read that learned and ancient Book written by Judge Fortescue, in commendation of the Laws of England. I shall leave this Subject, having briefly touched upon the happiness and liberty the Subjects of England enjoy, to have their trials for their Estates and Lives, per pares, by Juries of twelve men; what manner of persons Grand Jurors and those Jurors ought to be, and of the excellency and antiquity of such trials; in the next place (after I have showed the heinousness of Murder, both by the Laws of God, and the Laws of this Land, and made some little parallel therein) I shall briefly show, That it is the duty of all Grand Jurors, in all Cases of blood, touching the death of any reasonable creature, by violence, or by the hand or act of any other reasonable Creature, where the Bill of Indictment is brought unto them for Murder, in case they find, upon the Evidence, any probability that the person said to be killed in the Indictment, was slain by the person charged to do it in the Indictment) to put Billa vera to that Indictment, without foreclosing the Court, by judging amongst themselves the points of Law that may arise in that case, as whether it be Murder, Manslaughter, at Common Law, or upon the Statute See def. per Infortunium, Justifiable, or otherwise; none of these special matters being to be found by them that are but Inquisitors and Accusers for the King; not tryers of the offence, hearing but Witnesses on one side, and whose presentment, or verdict, is not final, but must be put to Issue betwixt the King and the party to be tried by another Jury, whether there be truth in it or no, whatever the practice of Grand Jurors hath been (of late) to the contrary; this being the chief aim and design of this Tract.  
I have not met with any amongst Christians, and I believe there is none amongst Heathens, or rational Creatures, but believe, whatever their practices are to the contrary, that the shedding of Innocent blood is a great offence, a crying sin. To take away the life of a Plant, is but the vigour in the juice; and the life of a Beast, is but the vigour in the blood; but the life of a Man is a 
r Gen. 9 4.  spirit, and spiritual substance, the breath of God breathed into him, and not to be extinguished unjustly by the hand of man. Certainly, vox sanguinis est vox clamantis, it is one of the four sins 
s Sunt vox clamorum, vox sanguinis & Sodomorum, vox oppressorum, vierces detenta laborum.  that the Scripture calls, Clamantia Peccata, Crying Sins, that cry to God for vengeance (even in this world) upon the Manslayer. Immediately after the Flood God commanded, that blood unjustly shed should be required by the Magistrate of the Manquiller. It is within the Magna Charta of God himself, and by an Act of Parliament made in Heaven, never to be repealed, It is enacted, that he that sheds man's blood, by man shall his blood be shed. At the hand of every man's Brother will I require the life of man, says God himself 
t Solus Deus qui vitam dat vitae est Dominus; nec potest quisquam eam juste auferre nisi Deus, vel gerens authoritatem Dei, ut Judex. And this was the reason, that amongst Christians it was not lawful for the Lord to kill his Villain. . God many times allowed of Restitution, and other satisfactions in other Felonies, but never in case of blood; for, who can make satisfaction for the life of a Man?  
The first Murderer that we read of was the Devil, who the Scripture says, was a Murderer from the beginning; in quantum traxit in peccatum, in drawing our First Parents into sin, and so to death. The next that we read of (for the Devil would not be long before he had tempted more to his own sin) was Cain, that killed his Brother Abel, and it seems very desperately shed much of his blood in many parts of his body, for the word is in the Plural number, vox Sanguinum, the voice of his Bloods; or, because the Bloods of the future posterity of Abel (that he might have had) were shed in him, by the Murder of Cain. It is true that Cain's blood was not shed by that Law, although he killed his Brother, the World being not then peopled, nor that Law then so positively given by God, and the example and terror to others could not then be so great (which is oft the great end of punishment, ut poena ad paucos metus ad omnes perveniat;) and therefore Cain was to survive by God's special appointment, not by any favour of God towards him, but that he might have God's mark (as a Murderer) upon him, to the Terror of all others that should see him. What visible mark and distinction this was, is but conjectured at; some think it was a horrible shaking over his whole body, as the Septuagint translate, who, for Thou shalt be a Vagabond and Runagate, read, He should 
u Occultum flagellum. The wound of Conscience.  sigh and tremble; or an exceeding shame and confusion, in that he ran from place to place to hide himself; or some visible mark in his face, as Lyranus thinketh: Some Hebrews think it was a horn in his forehead; some, a letter; some, that a Dog led him. The Scripture is plain, that for this Murder he was to be a Fugitive, and a Vagabond upon the face of the Earth; one (as the Text says) that went from the presence of the Lord, to whom the Earth was accursed; and certainly the guilt and shame he carried about him, like the bloody Jews that murdered Christ, and are to this day Vagabonds over the Earth; or those bloody surviving Regicides, that murdered the best of Kings 
x K. Charles the First.  (yet live, with that black mark of King-killing upon them) was, and is, a Judgement greater than death itself; as it is in the Psalms 
y Psal. 59 11. , Slay them not lest my people forget it: but scatter them abroad amongst the people, and put them down, O Lord, our defence. And that was the Judgement of Cain, who before his natural death (some say) was killed by Lamech, who shot in a Bush at a Beast, and killed Cain 
z Theod. quaest. 44. in Gen. . And the Turks at this day believe, that at the Day of Judgement, when the Grave and Hell shall deliver up their dead, Cain, that Fratricide and murderer, shall lead, and be as it were the Captain of the damned in Hell.  
Amongst all the Laws of God, which he himself appointed the Israelites (his own People) when they were to inhabit Canaan, the Land of Promise, there was not any mercy, or City of Refuge appointed for a Murderer or manslayer, but only where it was done unawares; as several clear Cases are put in Scripture to make this plain, 
35. Numb. 23.  35 Numb. 23. v. If one throw a Stone that a man die thereof (and saw him not) but did it unawares. So the 19 Deut. 5. When a man goeth to the wood with his Neighbour (mark how strongly this Case is put, 
19 Deut. 5.  with his Neighbour, his Friend, whom he had no unkindness for) to hew wood, and as his hand fetcheth a stroke with the Axe to cut down the Tree, the head slippeth of from the helve and smiteth his Neighbour that he die; in these, and many such like cases there put, he shall flee to the City of Refuge, and stay there until the Congregation shall judge betwixt the Manslayer, and the Avenger of blood, whether he did it wittingly, or unawares. The Hebrews understand by the Congregation, the Senators and Chief Judges of the City; and although it were done unawares, and so adjudged by the Congregation, yet so heinous was the offence of Blood before God (though nothing of man's will in it) that even such Manslayer was never (during his life) afterwards to depart from the City until it was so adjudged by the Congregation, or until the death of the Highpriest, (who was a type of Christ that set us all free;) for if he did depart, than the Avenger of blood, (who was next Kinsman to the party slain) might, if he met him, justify the kill of him. So it is very apparent, that before these Cities of Refuge were appointed for mercy to him that had killed another unawares, such a manslayer might have been killed by the Avenger of blood, as well as he that had killed another wilfully: and after they were ordained, they could not be intended to show Mercy, or to be an Asylum or Sanctuary for any that had willingly, wilfully, or by a passionate assault killed another. If it be objected (as what sin or offender is there that hath not his Advocate) that it is said in the 19 of Deut. 11. v. 
19 Deut. 11.  But if any man hate his Neighbour, and lay await for him, and rise against him and smite him that he die, and then fly to any of those Cities, he shall be fetched thence, and delivered into the hands of the Avenger of blood, that he may die. Thine eye (though the tenderest part thou hast) shall not spare him (how comely soever his person may seem) but thou shalt put Innocent blood from Israel, that it may go well with thee 
a i e. with the Magistrate and People. . If it shall be inferred from hence, That the Cities of Refuge were ordained for all sorts of Manslaughter, but where it was done of malice, forethought, ancient hatred, or with a sedate and malicious mind; hereby implying, that he that kills another upon a sudden quarrel, assault, or in heat of blood (as it is termed) might fly to a City of Refuge, and find Sanctuary; It must needs be upon a very great mistake. Nor can the Judicials of God herein (put into several plain and illustrating Cases by God himself) be reconciled if it should be so understood: It is said in the 31. Exod. 13. If a man lay not wait, but God deliver him into his hands, than I will appoint thee a place whither he shall fly. The meaning of the delivering him into his hands, must of necessity be understood of such a providence that could not be foreseen, and so not possible to be prevented by the Manslayer, wherein there could be nothing of his will, but purely chance and unawares, as in the Cases put before of casting the Stone, and killing one he saw not; cutting of the wood, and falling of the helm of the Axe, or Bough from the Tree; where many such Examples might be given, which the Law of England now sums up in one head or Reason, viz. 
b Utrum quis dederit operam rei licitae an illicitae. Stamf. lib. 1. fol. 12.  Where one is doing a lawful and justifiable act in his Trade, Calling, or lawful Recreation, and by chance and unawares, another happens to be killed by him, than he shall have a Pardon of course now instead of a City of Refuge (as shall be hereafter showed) for it is very plain by express places of Scripture, that all other voluntary kill of a man unlawfully, found no Mercy, no City of Refuge, but there the Manslayer was to die by the hand of the Avenger of blood (it appearing so before the Magistrate or Congregation:) As to instance in some few Cases out of Scripture. 
21. Exod. 12.  21. Exod. 12. He that smiteth a man that he die, shall be slain for it: if any destruction follow, there he shall give life for life (except it be unawares. 
31. Numb. 16, 17, 18. ) So in the 16, 17, 18. v. of the 31. of Numbers, If any man smite another with an instrument of Iron that he die, than he is a murderer, and the Murderer shall die for it. If he smite him by throwing a Stone that he die, he that smote him is a Murderer, 
All these sudden Actions.  let the same murderer be slain; therefore the Avenger of blood himself shall slay the Murderer. When he meeteth him he shall slay him (mark the Ingemination,) he shall surely slay him, as it is in the 21. Exod. 12. He that smiteth a man that he die, shall die the death; that is, shall surely die; for this doubling of the word, importat majorem certitudinem, importeth greater certainty; and yet in all these Cases, not one word of malice, lying in wait, or enmity. 
c He that smiteth another that he die; sive intendat occidere, sive non, shall die.  It is a general Law, He that killeth should be killed again, and this Law is grounded upon the Law of Nature; for like as it is agreeable to Nature, ut putridum membrum abscindatur, ut reliqua conserventur, that a rotten member should be cut off that the rest may be preserved; so a Murderer is to be killed, ne plures occidantur, lest more should be killed. This Law is given unto Noah, 
Gen. 9  Gen. 9 when the World was restored; and here it is but repeated and renewed. The Laws of other Nations herein consent with Moses: The Athenians did severely punish Murder, expelling the Murderer from the Temple of the Gods, and from all Society and Colloquy of Men, till he had his Judgement. And by the Law Cornelia, among the Romans, He which had killed another with sword, or poison, or by false Testimony, lost his head, if he were of the better sort; if of meaner condition, he was hanged on the Cross, or cast unto Wild beasts, that was himself like a Tiger amongst men; Simler. And the reason of the severity was, because Murderers deface the Image of God in Man 
d By Murder a reasonable Creature is lost, which all the World cannot restore. Trees, though they be cut down grow again, but a Man once slain can never be recovered. Pericl. apud Plut. in ipsius vita. And for the most part, unless the Mercy of God be the greater, the Soul is lost with the Body. , and lay violent hands to take away his temporal life, for whom Christ died to give eternal life. A King (an inferior god) would take it ill to have his Image, his Picture, wilfully stabbed through and cut in pieces by any, because it is his. It is very plain, by the Judicials of God, that where there was any wilful smiting, or striking (though suddenly, and from a present passion, occasioned by a sudden provocation) whereby death sollowed, in which the will, fury (which is a temporary madness) assent, or assault of the Manslayer, might appear, there was no City of Refuge, or Mercy, by God's Law provided for it; only what was done unawares, and unforeseen (as aforesaid) found a City of Refuge, otherwise what can be meant by those words, unawares, and where he saw him not: and in these very Cases of killing another, ex improviso, unawares, or by misfortune, for whom there was a City of Refuge provided (by God himself) yet there the Avenger of blood, if he overtook the Manslayer before he got to a City of Refuge (and in some places it was many miles to one of them) he might justify the kill of him.  
During the Israelites sojourning in the Desert, the Tabernacle (where mention is made of the Altar) was their Refuge in such a case; afterwards in the Land of 
e Bezer of the Reubenites, Ramoth of Gilead of the Gadites, Golan in Bashan of the Manassites; these three on this side Jordan, Deut. 4. 41, 43. these three appointed by Moses.  Canaan there were six Cities of Refuge appointed, three beyond Jordan, and three on this side. Three other 
f Cadesh in Galilee in Mount Naphtali, Shechem in Ephraim, and Kiriatharba which is in Hebron in the Mountain of Judah; these three last were beyond Jordan, and appointed by Joshua: Josh. 20. 7. equally distant one from another in Canaan. R. Salom. Jarchi, Deut. 19 3.  Cities of like nature God promised the Israelites, upon condition of their obedience, after their Coasts were enlarged; but it seems their disobedience hindered the accomplishment thereof, for Scripture mentioneth not the fulfilling of it. The manner of Examination of one that fled to the City of Refuge was thus; The Consistory or Bench of Justices who lived in that quarter where the Murder was committed, 
g Paul. Fag. Numb. 36. 6.  placed the party, being brought back from the City of Refuge, in the Court or Judgement Hall, and diligently enquired and examined the cause; who, if he were found guilty of voluntary Murder, than was he punished with death; but if the fact were found casual, than he was safely conducted back again to the City of Refuge, where he enjoyed his liberty, not only within the Walls of the City, but within certain Territories and bounds of the City, within such limits until the death of the Highpriest (that was in those days) after whose death he was at liberty; 
20. Joshua 6.  Josh. 20. 6. By this means the offender, though he was not punished with death, yet he lived (for the time, although the offence was involuntary and praeter intentionem) a kind of Exile for his own humiliation, and for the abatement of his wrath who was the Avenger of blood. 
d Masius in Josh. cap. 20.  The Areopagitas had a proceeding against casual Manslaughter, not much unlike, punishing the offender 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, with a years banishment. It is not agreed amongst Expositors, why the time of this Exilement was limited to the death of the Highpriest at that time: but probably thought, that the offender was therefore confined within that City, as within a prison, during the High-Priests life, because the offence did most directly strike against him, as being amongst men, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, ac Princeps Sanctitatis, The chief god on earth. These places of Refuge appointed by God, differed from those of Hercules, and Romulus, and others, Heathens, yea, and Christian Kings formerly of this Nation, because God allowed safety only to those who were guiltless in respect of their intention: but the others were common Sanctuaries 
h Asylum Sanctuarium. In the time of King Henry 8. these were places of Sanctuary; All Parish Churches, Cathedral and Collegiate Chapels dedicated, and their Churchyards and Sanctuaries to them belonging; and Wells, Westminster, Manchester, Northhampton, Norwich, Derby, and Lancaster. Afterwards, in the same King's Reign, Manchester was determined and Westchester appointed, Westchester discharged and Stafford appointed, by Letters Pat. from the King. Stamf. fol. 116. , as well for the guilty as the guiltless: If any man did fortuitously, or by chance kill another man, in such a case, a Liberty was granted unto the offender to fly, at first unto the Altar for Refuge, as is implied by that Text of Scripture, If any man come presumptuously unto his Neighbour to slay him with guile, thou shalt take him from mine Altar. Exod. 21. 14. 
i These places of Sanctuary extended not to Treason, Wilful Murder, Rape, Burglary, Robbery, Sacrilege, Burning of Houses and Barns with Corn, etc. 32 H. 8. 12. 33 H. 8. 15. It seems they did extend to all these offences before these Statutes. All Statutes made concerning Abjured persons and Sanctuaries, made before 35 Eliz. were repealed by the 1. of King James c. 25. Clergy is since taken away by several Statutes for those offences aforesaid, for which Sanctuary by the aforesaid Statutes was taken away. .  
And it is thought that Temples, as they were built, had the like privilege; as, Joab fled to the Temple, and took hold of the horns of the Altar. The Reasons why the Lord appointed Cities of Refuge are principally these; First, lest that the Innocent party might be slain, by the Friends of him whom he had killed, before his cause was heard, and the manner of the slaughter determined by the Judges. Secondly, it was so appointed, that he might stay there to the death of the Highpriest, who was a type of our Blessed Saviour, by whose precious death we are all set free. Thirdly, this was done ut menti eorum (hac ratione) medeatur, etc. to heal and allay the mind and fury of those which otherwise would delight in murder; for by his absence and continuance of time, the rage of those that sought his life would be qualified, and therefore God provideth, that they should not still be provoked by the continual sight of him. Fourthly, and further by this, that he that killeth a man unwittingly is appointed to fly, it is showed (quod reus poenae efficitur) that yet he is guilty of some punishment. So that involuntary kill was punished with a kind of Banishment among the Israelites: So likewise amongst the Athenians, such kind of Manslaughter was censured with one years' Exile. And so among the Israelites, he that escaped from the Avenger of blood for it was but an escape) was not to go out of the limits and bounds of the City, if he did, it was lawful for the kinsman of the man that was slain to kill him.  
There is a manifest distinction of voluntary and involuntary Murder or killing, grounded upon the Law of Moses: Involuntary killing is of two sorts, there are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, chances unlooked for and sudden events, as when one shooteth an Arrow (upon a lawful account, and killeth one unawares, as Peleus killed his Son, being in hunting with him. There are besides these, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, errors and oversights, as the Father beateth his Child, purposing only to chastise him, and do him good, and he dieth of it. There are likewise two kinds of voluntary or wilful Murder, ex proposito, of purpose, & ex impetu animi, in heat or rage; these kind of Murders are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, Iniquities, one may be slain ex proposito, purposely, per insidias, by lying in wait, when one watcheth for the life of a man, and taketh him at advantage, as Joab killed Abner, and afterwards fled to the Temple, and took hold of the Horns of the Altar, which notwithstanding could not privilege him; and afterwards killed Amasa, they suspecting no such thing; so Ishmael killed Gedoliah: or else per Industriam, when one of set purpose picketh quarrels, and seeketh occasions to provoke a man that he may kill him. Both these kinds are touched here, Tostat. quaest. 16. Than one may be killed in heat and rage when there was no purpose before, as Alexander the Great killed Clitus. This kind though not so grievous as the other, yet is a kind of voluntary kill, for whom there was no mercy by God's Law, as it is in the Margin of the Great Bible, Wilful Murder cannot be pardoned without God's high displeasure. Nay, as it is more fully in the Text itself, 
k 19 Deut. 13.  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 Adam's 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 
l Polluitur & foedatur terra, Numb. 35. 30. 33. Ye shall take no satisfaction for the life of a Murderer which is guilty of death, but he shall be surely put to death; for ye shall not pollute the Land wherein you are, for blood defileth the Land, and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.  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 Judgements, 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 Judgements 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 
m Matt. 26. 52. , and his interpretation upon the sixth Command, He that is angry with his Brother unadvisedly shall be culpable of Judgement 
n Matt. 5. 22. Qui irascitur sine causa, quantum ad voluntatem, homicidium fecit. Chrysost. hom▪ in Matt. Ira est appevitus ultionis. . 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 Murder and shedding Innocent blood, and extending mercy where it is done praeter intentionem, unawares and by misfortune, or in the necessary defence of a man's 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 Murder) as to the time of the Saxons 
o Kent, Southsaxons, Westsaxons, East-Saxons, East-Angles, Northumberland, Mercia.  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 humour, 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 
p L. 7. c. 16. & li 5. c. 4. p. 375. , who flourished in that King's 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 Freeman was pecuniary, and loss of liberty, of a slave by whipping. Treason against the Lord was Capital, and could not be appeased with money. Amongst the Laws of Canutus the King it is said, 
q L. Canut. fol. 117. c. 56.  Si quis in Regia dimicaret, Capital esto, nisi quidem Rex hoc illi crimen condonarit. If any should quarrel or fight in the King's 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 money, or Corporal punishment set upon every Murderer 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 
r Lambert L. Edw. Confess. c. 16. the Inventione Murdri. , Temporibus vero Regum Danorum sepultum fuit Jus in regno, Leges & Consuetudines, simul sopitae, temporibus eorum prava voluntas, vis, & violentia magis regnabant quam Judicium in terra. In the time of the Danish Kings, Right was buried, Laws and Customs were laid asleep together, the depraved Will, Strength and Violence did reign and rule more than Judgement 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, 
Ranulph. Cestr. l. 1. c. 550. Hou. 600. L. Ed. c. 35. in Hoved.  not of the Customary and unwritten Laws, these being certainly more ancient. Some say, that Edward the Third, before the Conquest, 
Malmsb. de gest. reg. l. 2. c. 11.  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 King's 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; 
K. CHARLES the Second.  some (to my knowledge) that formerly derided that occult personal Kingly virtue, inherent to the Imperial Sceptre 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 Canonised 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 Conqueror (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, 
An. Dom. 1087.  Hoc quoque praecipio ut omnes habeant & teneant legem Regis Edwardi in omnibus rebus, as Mr. Lambert hath it, inter leges Gulielmi. Notwithstanding he informs us, that this King William (post acquisitionem Angliae) after he had obtained and settled the Kingdom in peace, in the fourth year of his Reign, Concilio 
s Nobilium.  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 Customs 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 Customs. Nihil praetermittentes, nil addentes, nil praevaricando mutantes. Amongst these Laws we do not find Murder 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 custom of aestimatio Capitis, or Corporal punishment. We find amongst his Laws these words, 
t Lamb. inter Leges Gulielmi Regis fol. 126.  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 
u By the ancient Law of England, he that mahimed any Man whereby he lost any part of his body, the Delinquent should lose the like part; as he that took away another man's life should lose his own, Bract. lib. 3. numb. 4. So if the Defendant in an Appeal of mahime should be found guilty, Judgement against the Defendant should have been, That he should lose the like Member that the Plaintiff lost, by this means, a hand for a hand, etc. 40▪ Ass. 9 Mirror c. 4. & 5. . 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 Murder, there being not life for life; yet who is there almost amongst the Sons of men, that would not rather choose 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. 
x Lamb. in leges Edvardi R. c. 15. Lex Murdrorum. v. Stamf. lib. 1. fol. 17.  Amongst the Laws of the Conqueror, in the Title Lex Murdrorum, it is there found; If any be found Murdered, the Village in whom he was so found, was within eight days to deliver the Murderer; 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, than the Hundred was to pay it, and this money 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 Murderer to Justice, they should have their money again; if they could not within that time take him, the Parents of him that was murdered should have six mark, and the King the rest; if he had no Parents, than his Lord or Master should have it; if no Lord or Master, than 
y His Pledge or Surety.  Selagus ejus, i. e. fide cum eo ligatus, that is, his Pledge or Surety; if he had none of these, than 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 Murderer 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: 
z That is, so much as one paid for the kill of a man; by which it appeareth, that such Government was in those days, as slaughters of men were most rarely committed, as Mr. Lambert collecteth. Lamb. Expositio verb. Estimatio. Flet. lib. 1. c. 42. Hoved. fol. 344.  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 Judgement, 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 Frankpledge, and other ancient Laws of this Realm were in their right use.  
There are many that are full of Sr. moor's kindness, and think it too much that a man should lose his life for crimes under Murder, as for Theft, etc. (but none so kind to a Murderer) 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 stolen 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 Galleys, is thought by some the only way. Mr. Daniel will have it, that as yet (writing of King Henry the Second time) they came not so far as Blood, which is not so; for King Henry the First 
a Hoveden saw. 471. in H. 1. Concil. Birghamstead. Concil. 197. L. K. Canut. c. 61. L. K. Ina 5. 37. Aethelst.  (abrogating the were-gild) 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 Judgement for Felony was not always the same, but King Henry the First ordained by Parliament, that the Judgement for all manner of Felonies should be, 
9 H. 1.  that he should be hanged by the neck until he be dead: 
Matth. Paris. continuat. 1005.  After, in the latter end of the Reign of King Henry the Third, we find a Thief who had stolen twelve Oxen beheaded. Capital punishments have not only been in use against Homicides and Felonies, but other Transgressor's 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. 
b Caesar's Comment. l. 6. ante Christum natum 1600 annis.  Amongst the Britain's, 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 Murders, 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, etc. or in the Galleys. 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, 
Coke 3. Instit. Epilog.  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, 
Sta. perlege plor.  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 myself have known at one Assizes in the County of Monmouth, where one hath had Judgement 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 Gaoler, 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 Judgement of death, and were both hanged together. So little doth favour, terror, 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 man's 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 whipped) it is very plain that the Statute of 3 Ed. 1. c. 15. 
3 Ed. 1. 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 Thiefs, 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 Rye 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, Plasterers and their Knaves (so named in the Act) the same manner, and to find themselves meat and drink. 
25 Ed. 3. c. 1, 3.  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 Bailiff of Husbandry was but sixteen shillings eight pence, and for Clothing him five shillings with meat and drink, a Chief Hind or Shepherd twenty shillings, and for his Clothing five shillings, every Common Servant sixteen shillings eight pence, for Clothing four shillings, no Woman Servant above ten shillings, her Clothing 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 stolen 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 man's 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 Conqueror, and how tender a regard the Law of England (answerable to the Law of God) had of the Life of man. 
Concil. Saxon. 383.  By a Canon of our Old English Church, he that killed a Man in public war (though justifiable) was enjoined a Penance of forty days. 
c Misadventure at the Common Law adjudged Murder, Stamf. fol. 16. c. 8.  By the Common Law killing by misadventure, unawares, or in a man's own defence was Murder, founded upon the Judicial Law, before the Cities of Refuge; and the forfeiture and punishment of both was, as in case of Murder, 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. 
52 H. 3.  are as followeth, Murder from henceforth shall not be adjudged before our Justices where it is found Misfortune only; which shows, before that Statute though a man were killed by Misfortune, he had the same Judgement in Law as for Murder: So that after the making of that Statute until the 6th of Edw. 1. 
6 Ed. 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 kill 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 Murders 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 Murder by a Pardon of Course. Now for remedy in this case came the Statute of Gloucester; the words of which Statute are as followeth; 
6 Ed. 1. c. 9   
The King commandeth, that no Writ shall be granted out of Chancery for the death of a man, to inquire, 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 Certify the Record into the Chancery, where the King is always present; and therefore it is called a Pardon of Course, 
Stamf. fol. 15.  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, upon the Country de bono & malo (the very words of the Act) and that is upon a Jury of Life and Death; and this he cannot do except the Grand Jury find the Bill of Indictment, Murder or Manslaughter, let the matter of fact be what it will; for if the Grand Jury shall but find the truth of the fact, as it appears in evidence to them, or from their own knowledge (which is that which they now so much stand upon, that is the very special matter that makes it Manslaughter, by misfortune or se defendendo) the party can never come to be Arraigned upon such an Indictment, for that is not Felony, and if he shall be charged with it (the Grand Jury having only found the special matter in the Indictment or Inquisition) the party must either plead guilty, or not guilty, either confess and justify the Fact, or deny it; if he confess, he cannot Justify it, for men's lives are so precious in the eye of the Law, that the death of a man cannot be Justified, except in course of Justice, in a lawful War, or in a just defence of a man's life and property, against such as would rob, or designedly murder him. The Defendant in Appeal cannot Justify the death of a man at his own suit, 
Br. Appeal 122.  se defendendo, but must plead not guilty. Nay, a Verdict of the Jury of Life and Death, 
Coron. 302.  that A killed B se defendendo, or per Infortunium, 
43. lib. Ass. p. 31.  is no good Verdict; the special matter must be set down in writing by them, that the Court may judge the killing to be upon inevitable necessity; neither Grand Jury that hears but one side, nor Jury of Life and Death (that hear both sides) are Judges in this case. 
Stamf. lib. 3. c. 9 fol. 165.  For, upon the special matter found by the Jury of Life and Death, if the Court shall not adjudge that special matter good in Law to acquit him of Murder or Manslaughter, it may be either murder or manslaughter in him, and the party may be hanged notwithstanding such Verdict of the Jury of Life and Death, how can the Court be judge of the matter in Law, when they hear not the matter in fact from the Witnesses on both sides, and the Parties defence for himself, which they can never do, if the Grand Jury shall take upon them (as they presume they may) to find the Special matter themselves, whereby the Party cannot be Arraigned, that so he may put himself de bono & malo super patriam, as the Statute of Gloucester beforementioned especially requires. If the Party charged with such an Indictment from the Grand Jury (where they will find only the Special matter) shall confess it, when he is charged with it (as sure he may) than the Evidence can never be heard in Court, whereby the Judge may determine the point in Law, whether the offence upon the whole matter be Murder or Manslaughter, or as they find it, and that is mere matter of Law, whether super totam materiam of the Evidence (and that must be Evidence on both sides) it be murder, Manslaughter in general, Manslaughter upon the Statute per Infortunium, se defendendo, justifiable as against a Thief, or in loco & tempore belli; and how exceeding dangerous and inconvenient were it for Grand Jurors, so far to anticipate the Judgement of the Court, and to take upon themselves (upon the hearing only of Witnesses on one side, and perhaps not all of them neither) the sole Judgement of Law in all these Cases, by not finding the Indictment (which is but the King's Declaration for the loss of his Subject, in the same manner as it is advised by the King's Council Ingrossed, sworn in Court, and delivered to them) especially (for that is always intended) where they have probable Evidence (for they need no more) to prove such a person killed by the hands of such a person, such a day, year, and place. Nay, by the Statute of Gloucester, they must either find the Indictment in such a case Murder, for all Indictments (about the kill of a man) were so before that Statute, and no Law since to alter it, or the party can never have a Certiorari out of Chancery for his Pardon of Course, whereby he may be discharged out of Prison; for by the strictness of Law, he ought to remain in Prison without Bail until his pardon be procured, which Pardon saves not his Goods or personal Estate, but only pardons his Offence, his violation of the King's Peace (which is violated in the loss of a Subject) according to the Statute of Gloucester, and procures his liberty, and discharge out of Prison.  
The words contained in the Writ of Certiorari out of Chancery, in order to the obtaining of a Pardon of Grace, and removing the Record into Chancery, that there the King may see by the Record the truth and nature of the offence, according to the Statute of Gloucester, being well observed make it very plain, that the Special matter of Fact must be found by the second Jury, the Jury of Life and Death, and which is so suggested in Chancery before the Issuing forth of such Writ, as by the Writ more fully appears, 
Certiorary out of Chancery.  viz. Quia ut accepimus, quòd A. B. indictatus, & per Inquisitionem patriae compert. extitisset, quod idem A interfecit predict. C. see def. & non per feloniam aut malitiam praecogitat. unde dictus A. Gaol. nostr. praedict. remiss. est ad gratiam nostram jude expectand. nos ea de causa super tenor. Record. & process. Inquisitionis praed. Certiorari volentes, vobis mandamus quod si ita est, tunc tenor. Record. pro process. praedict. cum omnibus ea tangent. in Cancel. nostram sub sigillis vestris distinct & aperte mittatis. Observe how this ancient Writ complies with, and explains the Statute of Glouc. in this case; here is in it Indictatus, that is, by the Grand Jury, and per Inquisitionem patriae compert▪ ex●itisset, that is, the Jury of Life and Death; for that is the only Trial in our Law, by the Country, per Patriam; and whoever is tried by that Jury, posuit se de bono & malo super patriam, which must be for Felony and Murder, the very words of the Statute; for this Jury is to find, in their Writ, that it was se defendendo & non per fellow. aut malitiam praecogitat. as it is in the Verdict; and observe by the Writ, he is not to be discharged out of Gaol before his pardon of Course procured, for it is in the Writ, Gaol. nostrae praed. remiss. est (it seems he was there before) ad gratiam nostr. inde expectand. etc. and further, observe the Mandamus in this Writ (si ita est) if it be so, that the Offence hath received such a trial by two Juries, then Certify the Record, otherwise not; and what Judge that doth not truly understand this (si ita est) which he can never truly do from a Grand Jury, will Certify such a 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 altar 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 Trial, 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 Trial, 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 
d As in the two Houses of Parliament it is but a Bill whilst in their hands, the Royal assent makes it an Act. So it is but a Bill in the Grand Jury 's hand, the other Jury makes it an Act.  Bill of Indictment, as it comes from their hands, is but the King's Declaration of the matter of Fact, to which the Prisoner may plead, Not Guilty; and join Issue with the King, and have it tried, Whether he be Guilty, or not? modo & forma, as it is laid in the Indictment, or may confess and justify, 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 King's Peace, his Crown, and Dignity, all which are violated, dishonoured, & weakened 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 fancy) 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 Judgement 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 Judgement 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 trial 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 itself 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 itself (as truth ever will) upon a Judicial, faithful, and careful Examination of the Fact by the Learned Judge, upon hearing the Party, and Evidence on both sides.  
It is true (as appears by two several Acts of Parliament noted in the Margin) that at the making of those Acts there was a complaint in Parliament, 
4 H. 4. 2. 37 H. 8. 8.  That Indictments were stuffed with more words than the Offence required, and that of purpose to aggravate the Offence more than it was grievous in it self. For as it is well observed by Mr. Poulton, 
e Poulton de Pace Regis & Regni, fol. 167.  That the circumstances of every Offence do augment or diminish it according to the qualities thereof. And by those two Acts of Parliament it may be observed there was a reformation and redress made therein, by leaving out some formal aggravating words (but then material) used in those times in all Indictments of Felony and Murder, as by the Statute of the 4th of H. 4. 2. 
4 H. 4. 2.  the words then constantly used in all Indictments of Felony (without which the Indictments were not good) were [Insidiatores viarum & depopulatores agrorum) provides that those words should be left out in all such Indictments, and yet the Indictments should be good without them: And well they might leave them out; for how useless and impertinent (as to the Essence of the Indictment) were those words, and yet the effect of them must be still observed. As also by the Statute of the 37 H. 8. c. 8. 
37 H. 8. c. 8.  the words, Vi & Armis, viz. cum baculis, cultellis, arcubus & sagittis, or such other like words (before time commonly used and comprised in all Indictments and Inquisitions of Treason, Murder, Felony, Trespass, and other Criminal Offences) shall not of necessity (for they were so before) be put or comprised in any Inquisition or Indictment; but it shall be good only with these words (Vi & Armis, etc.) leaving out the other against any advantage that may be taken (as formerly it was) by Writ of Error, Plea, or otherwise; for these words were to very little purpose, to be of necessity used in every Indictment: For as to some Indictments, there could be nothing of pertinency or congruity to the Offence in them. And yet let it here be observed by the way, That in those times, and before those Statutes formerly mentioned, continually (in all Indictments) those words were used, and the Indictments found by the Grand Jurors, without any proof made to them of such circumstances (than essential) as [Insidiatores viarum, depopulatores agrorum] liars in wait to deceive upon the Highways, and destroyers of Husbandry; or, as in the other Statute, Cum baculis, cultellis, arcubus & sagittis, viz. with Staves, Knives, Bows and Arrows; when perhaps he that committed the Offence had not one of these Weapons about him, or was guilty of the least of these circumstances of Aggravation, which were then held necessary to every Indictment; which shows how observable (at that time) Grand Jurors were to the directions of the Court, and to the King's Council, in drawing the Indictments and Circumstances of it, Whether such Circumstances lay in proof, or no? But in neither of these Statutes, nor any other Statute, is there any Exceptions made to these words, in any Indictment for the kill of a man (Ex malitia praecogitata) then used in all Indictments for the kill of any person unlawfully, which (as is said before) are of great consequence and use to be put into all Indictments against any person that hath shed innocent blood. For, as Mr. Poulton, in the very Folio before quoted, saith, 
f Poulton de Pace, etc. fol. 167.  (writing upon the two former Statutes last mentioned;) If one be Indicted of Murder or Manslaughter, there must be of necessity in the Indictment, a stroke supposed, 
Poult. ut supra, 1. m. Dier. 59  viz. tali die, & anno felonicè, & ex malitia praecogitata interfecit & murdravit. Here it is plain, that the Indictment of Manslaughter, as well as Murder, must have these words, Ex malitia, etc. in it. Neither let any think that it is pressed further, in foro legis, than it will bear in foro conscientiae; or that by this means Grand Jurors are used but as Ciphers (like the Ordinary at the Assizes) pro forma tantum, and that the Arguments of Law and Reason here used, seemed to persuade them (like those of the Church of Rome) to be of an implicit Faith, to believe as their Leaders would have them, and to do as they require them, and yet to be under the Obligation of an Oath to present the truth of the matter of Fact. It is far otherwise (being rightly considered) they are not sworn to try the whole truth of the Offence, so as nothing may be altered in what they find, for then there would be no need of another Jury; they are neither to convict the Party, nor determine the Law, Whether it be Murder or Manslaughter? or of what kind or Species it is, as it appears to them upon the hearing of but one side, and that but of Witnesses, not of the Party, that is left (as is said before) to the second Jury, who are properly Tryers of the Offence de vicineto) of the very Neighbourhood; not Inquirers only (as Grand Jurors from every part of the County) where Parties, and Witnesses, and Council, on both sides (if occasion be) may be lawfully heard. 
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.  The Grand Jury are only sworn to inquire, and true presentment make of all such things and matters as shall be given them in charge, to present nothing for malice, etc. nor leave any thing unpresented for favour, etc. From hence often Grand Jurors frame an Argument to themselves, that it is part of their Oath to present all such things as shall be given them in charge, that generally the Judges in their charges dilate upon the several Species and differences in Murder: As, what Offence the Law makes Murder? what Manslaughter at Common Law? what upon the Statute? what per Infortunium? what se Defendendo? what is malice expressed? and what is malice implied; and therefore wherever they find these specifical differences by their Evidence, they are so to present it, and not otherwise.  
This is upon a great mistake, nor is it, or can it be so intended by the Judges; for although it is true that the Judges (for the most part, not all of them) in their charges to the Grand Jury (which I humbly conceive were better omitted) do, usually mention and branch out the several specifical differences and distinctions the Books of Law make in shedding of Blood, in Murder, and Manslaughter, I conceive, more to inform the whole Country, and to show their Learning, and the Law therein, than intentionally that the Grand Jury should presently (some of them perhaps never serving before, uno intuitu) take it into the consideration of their Oath, and make it the nice Duty of their Inquiry, which indeed they can never attain unto, or determine the Law therein, by only hearing of an Accusation of one side, from which they are only to prepare fit matter for the Court to proceed further upon, and to make 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 tried 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; 
Finch 25. Case of presentment and Indictment.  An Indictment is an Inquiry finding some Offence against the King. It was the King's Action whereupon the Party shall be Arraigned, or put to Answer by the King, and tried 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, etc. 
h In ancient time it was usual to Arraign one taken in the manner without any Appeal or Indictment.  So in an Appeal of Murder, if the Plaintiff, after Declaration be Nonsuit, the King shall proceed upon that Appeal, as upon an Indictment found: So Herald And as it is in 
i Doctor & Student, lib. 2. cap. Abridgement.  Doctor and Student; The Grand Jury is only charged with the effect of the Bill (viz.) whether he be guilty of the Felony or Murder 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 Murder 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 inquire 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 aught 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 Endorsement 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 King's Suit do succeed Appeals, at the party's 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 Murder (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, 
6 E. 1. 9  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 murder was committed, the Appeal shall abate. Yea, so many were the Niceties of Appeals, which formerly were in use, not only in Murder, but in all cases of Felony, and so full of Bribery and corruption in the easy composition of all sorts of Murders and Felonies, and did so much delay the King's prosecution by Indictment (which was not to begin until the year and day past, after such Felony and murder) 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. 
3 H. 7. c. 1.  was made, That the King shall not stay until the year and day were passed, but proceed at any time after the Murder committed; 
MURDER.  as also, that the Appellant shall proceed in his Appeal by Attorney; (all helps the Law could devise to prevent delays in cases of Murder, 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 Murder, that are brought at the King's suit within the year and day (as the King by this Statute is enabled to do, 
3 H. 7. c. 1.  the words whereof are as followeth, And if it happen, that any person named as principal, or accessary, be acquitted of any such Murder at the King's 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 MURDERER 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 Murderers; and as it is before in the said Statute, The King shall not stay until the year and day were passed, but proceed at any time after the Murder committed: So that (prima fancy) the Statute looks upon all Manslayers (unlawfully) to be guilty of Murder. 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 Murder and Felony are by Indictment at the King's 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 King's suit; yea, even after the Trial had by the King's suit (in some cases) although at the King's suit they have been acquitted of the murder (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 murder, the one in not fully presenting the murder, 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 King's 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 King's 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 Murder; 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 privilege: 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 King's suit, for that it doth appear by the Declaration there is a Murder 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 Murder, than the Appellant did: so careful have the Laws ever been in punishing of Murder, and revenging Innocent blood, which it seems (and as before is observed) whilst Appeals were in use, and the King's suit must stay until the year and day were passed, many Murderers escaped unpunished, and the kill 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 days when Appeals were in use, and had the pre-eminence of the King's suit; Never more killing of men by Duels, Tavern, and Game-house Quarrels, and yet never more impunity to such Mankillers, such valiant murderers of their fellow Christians, especially if the Mankiller have either a fame for Honour or Valour, Money, 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 Murder, 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 Judgement, 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 Murders, that have too easily slipped through the hands of Justice, by the averseness, ignorance, or partiality of Grand Jurors in not observing the direction of the Judges in this particular of finding Bills Murder, 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 King's 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 beforehand 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 King's Evidence (before Issue joined betwixt the King and the Prisoner) is always to be secret, only open to the Grand Jurors, who are always styled, Juratores pro domino Rege, the King's Jury, and are sworn to keep the King's Counsel, their Felons, and their own: now the Witnesses for the King are said to be of the King's Council, which would abate much of their Oath, if Evidence, and the King's Informations (in Cases of Blood) 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, 
3 H. 8.  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 Sheriff's power in returning them; the whole Authority of returning Inquests (to take Indictments) being by force of the Statute of the 11 H. 4. in Sheriffs and Bailiffs of Franchises. It is observed by the Statute of the 3 of H. 8. that by reason of Bribing of Sheriffs, and their Bailiffs and Officers, many true and substantial persons were divers times wrongfully indicted of Murder, Felonies, and other Misdemeanours, to the utter loss of their Lives, Goods, and Lands. And sometimes also great Felonies and Murders were concealed, and not presented by the Grand Jurors, partially returned by the Sheriffs or their Ministers; for the prevention whereof, it was established by the said Act of the 3 H. 8. That all Panels 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 inquire for the King, shall be reform, by putting to, and taking off the Names of the persons which so be impanelled by every Sheriff, at the discretion of the said Justices, before whom such Panel shall be returned, and the Sheriff upon pain of twenty pound shall allow of such Panel, so reform and returned by the Justices, the one half to the King, the other to him that will sue for the same, and the King's Pardon shall not be a bar to his part that so sues. So careful were the Lawmakers 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 inquire of, 
3 H. 7.  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 Impanelled, to inquire 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 Judgement of the Court; and in case of any wilful contempt, misdemeanour, 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 remissness and peevishness, they give not occasion to the making of the like Statute as was made in the 11. 
11 H. 7. c. 3.  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 merely 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 Infringement 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, Murders, 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, Stigmatising, 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 straight 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 straight 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 refer, 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 Murder, yet they find it in some degree of Manslaughter, etc. Besides, if the King's Council will put into the Indictment the words (Ex malitia praecogitata, etc.) which only make it Murder, 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 Highway; 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 Madman, 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 Murder; or if there had been former fall out and differences betwixt them, yet all was reconciled, and they good friends again, and this only a casual and sudden difference betwixt them upon a new occasion, and exceedingly provoked unto it by him that was slain, so that we cannot be satisfied to find it Murder in any of these cases, being upon our Oaths to make true Inquiry, and if we find not the malice (being matter of Fact) another Jury cannot try it. Besides, we have former practice of our side, other Grand Jurors have had, and taken the same Liberty, and why should not we? The Judges likewise in their Charges inform us of all the specifical differences in Manslaughter, which we conceive they intent we should take notice of, as it comes in proof before us, in our Inquiry. This, I conceive, is as much as Grand Jurors have said, or can allege for themselves (where they are not positively partial, and go clearly against their Evidence) why they do not, or will not (for such is some of their Language) find it Murder in all Cases, as the Court directs, and as the Bill of Indictment is drawn and sent to them as the King's Declaration.  
To satisfy these reasonings and mistakes (though sufficient hath been said already to satisfy a wise and sober Grand Juryman, especially in a Case of Blood, which can never receive too strict an Inquisition by a Grand Jury, the first Inquisitors of it in Court) let them observe, that neither themselves, nor the party accused, can be prejudiced by what they shall so find, be it never so high: First, not themselves; they do but present a probable Accusation (no Conviction) against such a person that hath had his hands in Blood, hath killed a man, is Vir sanguinis: And here certainly it will be the best satisfaction to Conscience (and that is the best Friend we can satisfy) to have all the Circumstances of the Fact (as they are laid in the Indictment) to be more judicially and circumspectly examined, sifted, and tried out, by another Jury, by a Learned Judge, in a public Court, to the party's face, where the King's Witnesses, and the party himself, and his Witnesses, may be fully heard, and the whole matter fully tried and debated, which cannot be done in a Grand Juries Chamber, but is altogether stifled and obstructed, if the Grand Jurors suffer it not to come to this Judicial Test and Trial, but shall put out the words, Ex malitia praecogitata, or otherwise alter the King's Declaration and Indictment, which already hath had proceedings in it, and that in Court of Record, where it hath been advised by the King's Council upon perusal of Informations and Examinations from Justices of Peace or Coroner, in that Case certified to the Court, and upon hearing the Prosecutor and his Witnesses, and so drawn and presented to the Court, Witnesses sworn to it, and Indorsed, Jurat. in Curia, sworn in Court, and so become something more than an ordinary Declaration or Writing in Parchment, to be altered by any, without advice or direction of the Court; for if it might be so, the King's Council and their Advice (together with the Judges in such Cases) would signify very little in drawing or advising any Indictment of Murder, if Grand Jurors in their Chamber may (from their own advice) alter it as they please, the Judges themselves being as well concerned, in Conscience, to do right to the Prisoner and Party accused, as Grand Jurors can be. And also admit that the Witnesses shall inform the Grand Jury that it was a passionate and sudden falling out, or that it was done unawares, or in his own defence, it is but what they apprehend it to be; they can inform but what they saw, or heard, or believe; they are in the Affirmative only, and can prove but for that instant the Fact was done; they dare not swear that there had been no falling out before: and as they cannot, or haply will not, prove an express malice, so neither can they swear that there was none at all, or not such a malice as the Law implies; neither can the Witnesses judge in all Cases, what is Manslaughter at Common Law, what upon the Statute, what per Infortunium, what se Defendendo, what is Justifiable, or what is Murder: neither indeed in all these Cases, can the Grand Jurors, nor is it convenient for them to judge of all the specifical differences, each Circumstance may so much alter a Case; and will they then, by their uncertain Judgements, in case of Murder, conclude and preclose the Court, and determine the Law, that this Fact of Blood shall go no higher than they please to adjudge it; as in the case put of a Child that kills another, not the Grand Jury (who see not the Child) but the Court, and the other Jury shall inspect the Child, shall judge whether the Child could do such an Act, felleo animo, ex malitia praecogitata, and so be guilty of Malice and Murder; the Court, and not the Grand Jury, being to judge, an malitia supplebit aetatem, whether upon hearing him speak, he may be thought capable of malice (as some at more tender years are than others) so in the case of a Fool, or a Lunatic, a Dumb or Deaf person; so in the case of a Reconcilement after a falling out, and then a kill; can either Jurors or Witnesses, or any that hears but one side, state the case aright, or judge whether the Reconciliation were perfect or not, so as to take away all the seeds of malice, revenge, or discontent? And Mr. Justice Stamford says, That those that are Dumb and Mute, and Infants, shall be discharged upon Arraignment. Which shows that they are to be Indicted of Murder: But how shall they be Arraigned, when they cannot hear, or speak, and plead? I conceive by the Inspection and Judgement of the Court upon their Arraignment, I mean, upon the Indictment found by the Grand Jury; which plainly shows that the Judges (not the Grand Jurors) are Judges of the Law, and of what shall be Murder. So in the case of killing a Thief that attempts to Rob or commit Murder, (which is justifiable) this must judiciously and certainly appear so upon the Trial, that the Court may judge whether there were an intention to Steal, or to commit Murder, or Rape; and not let such a Surmise only, That there was no such intention, lead the Grand Jury to acquit him, when haply there was such intention. And the Statute of the 24. of H. 8. saith, That the Party so Indicted or Appealed of such Offence for killing a Thief, or one that intended to Murder (by Verdict so found and tried) shall not lose or forfeit Lands or Goods, but shall be discharged as one acquit of Felony; and none can be acquit of Felony that is not tried for it; the doubt being before this Statute, Whether he should forfeit his Goods and Chattels as one that killed another by Chance-medley? So that there was no doubt but such a one was Indicted of Murder before this Act, as one that had killed another by Chance-medley must, and yet is to be Indicted; Chance-medley 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 Juryman (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 Trial, many times that appearing upon Trial 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 
k Coke 3. Inst. fol. 26. 1. Inst. Sect. 194. Fortescue c. 26. 72. Stamford l. 2. fol. 90.  Lord Coke informs (that Oracle of the Law) An Indictment is no part of the Trial, but an Information or Declaration for the King; and the Evidence of Witnesses to a Grand Jury, is no part of the Trial: For by Law the Trial 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 Trial by a Jury. If the Indictment were part of the Trial, then ought he that is a Nobleman and Lord of Parliament, to be Indicted by his Peers, for the Trial 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 showed out in public; (defer 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 Murder, 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 myself 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 styled Juratores pro Domino Rege only; nor can they be otherwise: for they are to hear none but the King's Evidence, upon his own Declaration: And whoever is to advance (as the Grand Jurors are) but the Interest of one side, aught 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 
l The Judges did advise in drawing the Indictment against Leak, 4 Jac. Coke 3. Inst. Tit. Treason, fol. 16. , (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 pricked, 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 public 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 to find a Bill; and here I will leave to the observation of Grand Jurors, what I find in Mr. Justice Stamford's Pleas of the Crown, and which he himself observeth out of Bracton, a very ancient and learned Lawyer, as Bracton's order in Cases of Suspicion upon Indictments of Felons 
m Bracton 's Order in le Suspicion ou Endictments del Felons, lib. 3. cap. 22. paragr. 1. fol. 143. Stamf. fol. 97.  de secta Regum. The words are these, Nunc autem dicendum est de Indictamentis per famam Patriae, quum praesumptionem inducunt, & cui standum est donec indictatus se à tali Suspicione purgaverit; ex fama quidem oritur suspicio, & ex fama & Suspicion oritur gravis praesumptio. Tamen probationem admittit in contrarium sive purgationem, Suspicio quidem multiplex esse potest, primo, si fama oritur apud bonos & graves. Item ex facto praecedenti oriatur suspicio cui etiam standum est donec probetur in contrarium, etc. and so goes on, to let us know the several badges and marks of Suspicion, advising, that those that will take Public fame for an Evidence, take it from those that are of good Fame, and not of evil persons; as he goes on, Non de malevolis & maledicis, sed providis & fide dignis personis, non semel sed saepius, quia clamor innuit, & defamatio manifestat; Tumultus enim & clamour populi, quandoque fiunt de multis quae super veritatem non fundantur. Ideo vanae voces populi non sunt audiendae, ut ne dicatur Jesus crucifigitur, Barabas autem liberatur. The whole Chapter is well worth the reading.  
And it may not be amiss to observe, that the ancient forms of Indictments or Bills began thus, Inquiratur pro domino Rege, Let it be enquired of for our Sovereign Lord the King, as the offence is laid in the Indictment, whether the offence be so (as is there supposed) which is as much as if the Grand Jury should say, We judge it fit that it be farther enquired of, whether it be truly so indeed, as it is here supposed; for the Offence, as it is laid in the Indictment, as it comes from the Grand Jury (before it receive a farther trial and enquiry of another Jury) is no more but Crimen suppositum & impositum, an offence supposed and laid to one's charge to answer; and this clearly appears by the Record of every Acquittal or Conviction of any that is tried upon an Indictment; for the words of the Acquittal or Conviction (as they are drawn up in the Record) are these, viz. Juratores (that is to say, the Jury of Life and Death) dicunt super Sacramentum suum, quod praedictus A.B. non est (vel est) Culpabilis de Felonia & Murdro praedict. in Indictamento praed. specificat. ei superius imponit. modo & forma prout per Indictamentum praed. superius versus cum supponitur: so that supponitur & imponitur, supposed and imposed, is all that can be inferred from the Indictment; the Grand Juries Presentment (upon hearing of one side) being the Supposition, and the other Jury (upon hearing of both sides) the Imposition; or Supponitur, and that relates to the substance of the Indictment, as the Grand Jury suppose it to be; the Imponitur, and that relates to the modo & forma of the Offence, and the circumstances of it, as it is laid in the Indictment, as it is found by the Jury of Life and Death; and these Circumstances indeed are the proper enquiry of the Jury of Life and Death, upon the hearing of Evidence on both sides, as appears clearly by the penning and drawing up of these Records, and all this is no more than in every common Declaration at the suit of the Party, only this Indictment is as a Declaration upon Oath, and must therefore (for the satisfaction of those that are sworn) contain, that which for substance seems to them (prima fancy) to be a probable truth, and a transgression of a Law, not strictly looking into the matter and form, aggravations and circumstances of the Fact (as it is laid in the Indictment) for those do but attend and usher in the Fact; but Grand Jurors are principally to eye and look upon the single Fact and act itself, and finding one that hath had his hands in blood, and that probably (upon a farther Enquiry) may become, reus, a guilty person, by killing of another person, they are to put their Billa vera unto it, although they have no proof at all of the Aggravations and Circumstances that attend the Fact (Evidence many times arising out of the parties own mouth (against himself, upon a strict examination in Court) more than the Witnesses against him have proved.) And it is well observed in the Book called, The Terms of the Law, upon these two words, Billa vera, where it is said, that Billa vera is the Endorsement of the Grand Jury upon any Presentment or Indictment, which they find to be probably true, (mark these words) probably true; nor do I take the Adjective Vera in this place to signify True, but meet, reason, or fit, and so it is often used in Terence, and by the Grammarians, Verum est, it is fit: so that Billa vera upon the Bill doth not signify, a true Bill, that hath nothing but truth in it, but a meet, or fit Bill for the further enquiry of another Jury, which ever succeeds such an Endorsement of Billa vera by a Grand Jury; certainly it is upon a great mistake (although I confess it is often used in Law-Books, and by wise men) to call the Presentment of a Grand Jury a Verdict, to say that their Endorsing Billa vera, or Ignoramus (which is all they do) is their Verdict, there being a great difference between Billa vera and Veredictum, which signifies dictum veritatis, and even induceth a Conviction; for nothing can properly be called a Verdict, but where it is given by a Jury; after an Issue joined, upon hearing of both sides, Veredictum, is, as it were, quoddam Evangelium, like a little Gospel of Truth, for indeed every Verdict (which convicts a man to the loss of Life or Estate) ought to be as true as the Gospel the Jurors swear upon; for upon the Issue of a Verdict, the Lives and Estates of all persons depend: And therefore an Attaint lies in Law against those Jurors that give a false Verdict, contrary to the truth of their Evidence, which is a Villainous Judgement, a very great Judgement in Law. And this Attaint did never by Law, lie, or was brought against Grand Jurors for any false Presentment, for they do but barely present an offence, upon hearing of one side, and therefore can be no Verdict (as from them) the Grand Jury being for number indefinite, that being properly called a Verdict from such a Jury, where the Law makes a determinate number of twelve, or twenty four, and no more: Besides, it is always said in the Record, where such a Jury finds a Verdict, Juratores super Sacramentum suum dicunt, etc. But where the Grand Jury present, Juratores super Sacramentum suum praesentant (not dicunt) there being as much difference between praesentant and dicunt, as betwixt a known truth, and the report and fame of a fact done.  
And this will the better appear, if it be well observed what Grand Jurors write or Endorse upon the back of those Bills they find; for though they Endorse such Bills (Billa vera) yet they never Endorse upon those Bills they do not find (Billa falsa) as if one were true, and the other false, for should they do so, it would be like an Accusation against the Prosecutor that prefers the Bill, and a great discouragement to the King's Evidence; but they modestly write (Ignoramus) which signifies to the Court, they are ignorant of the matter in the Bill, and that they find no cause, either from what they have heard from the Witnesses, or know of their own knowledge, to commend it to a farther Enquiry: the Verb Ignoro, coming from Ignarus, not to know, to be ignorant. And this doth further evince, that the Grand Jurors Presentment cannot properly be called a Verdict; because a Verdict doth in Law either convict or acquit, which neither their Billa vera, nor Ignoramus doth; the first is always put to a farther enquiry, the last is no acquittal to the party; for although there be many Ignoramus's against any person, yet may more Bills be preferred against the same person for the same offence; for it may be they did not find the Bill, in regard some Witnesses were absent or corrupted, or the matter in the Bill mistaken; happily it may be no Felony, but something done in jest, or in the nature of a Trespass, or a Natural death instead of a Murder, or the Witnesses of no Credit, or the like. But if there be any thing of Truth in the Bill proved to them to make a Crime, although not so fully as is laid in the Bill, they must not in such case write (Ignoramus) as if they knew nothing of a Crime; as if it be a Murder in the Bill, and the Proof reacheth but to an Infortunium, or se defendendo, or to any degree of unlawful kill, they must not write Ignoramus upon the Bill; or if Burglary, and the Proof makes it but a single Felony, and no Burglary, they must not Endorse it (Ignoramus) but in all such cases, where they are in any doubt, the best way for them will be to advise with the Learned Judge, to move the Court for directions therein. It is too great a Scandal to a Grand Jury (Persons in that quality highly to be esteemed) to say, that their Ignoramus (that is, their Ignorance) is their Verdict. It is very safe for Grand Jurors, before they find an Ignoramus, to examine every Witness produced; but if they have many Witnesses in Murder or Felony, if any one Witness induce a strong and pregnant Presumption it is enough, without perplexing themselves, in haste of business, they need not examine any more, but put Billa vera unto it.  
If a Grand Jury find, upon an Indictment of Murder, that A. killed B. what is it to them (as hath been said before) whether it be Murder or Manslaughter, whether it were done, Ex malitia praecogitata, per Infortunium, se defendendo, in loco & tempore belli, or otherwise, this is Special matter, and Special matter ought to be found when it is at Issue by another Jury, and must arise (I mean the truth of it) super totam materiam of the Evidence, or proof on both sides; which can never be found and determined by a Grand Jury, that hear but one side, for very seldom is matter of Fact truly stated in a matter of difficulty, by one side, and therefore (as before is said) the Statute of Gloucester provides, that every Manslaughter, per Infortunium or se defendendo, shall be found per Patriam after the Prisoner hath joined Issue with the King, and put himself de bono & malo, of good or evil, that is, either for his Acquittal or Conviction, super Patriam, to be tried by his Country.  
And the Jurors of Life and Death themselves are not tied, as not strictly to the form of an Indictment, so not to the whole matter of it; not to the form, as it was well urged by Sergeant Montague Reader at the Arraignment of the Earl of Somerset, for Murder, by poisoning of Sr. Thomas Overbury in the Tower, who told the Jury, That they must not expect visible Proofs in a work of darkness; that many things were laid in an Indictment only for form; that they must not look that the proof should follow that, but only that which is substantial, and the substance (in that Case) must be this, Whether my Lord of Somerset procured, or caused the poisoning of Sr. Thomas Overbury, or not. The Lord Coke (than Chief Justice) and other Judges present at the Trial, stood up and said, The Law is clear in this point, that the Proofs must follow the Substance, not the Form, that the Law gives forms in Indictments, but substance in proofs. And yet this was spoken to a Jury of Life and Death, who are more carefully to look into Circumstances and Forms (because their error is incurable, if they Convict a man to lose his life wrongfully) than Grand Jurors are. And I cannot but further observe (in this Case of Sr. Thomas Overbury) that which I would have all Grand Jurors, and Jurors of Life and Death, observe, as an Instance to guide them in other Cases of like nature, that although it was laid in the Indictment, That the ninth of May, Anno 11 Jac. Regis, Richard Weston (who was procured by the Earl of Somerset) gave to the said Sr. Thomas Overbury a poison of green and yellow colour, called Rosacre, in Broth; and the first of June, Anno 11 Jac. Regis supradict. gave him another poison, called white Arsenic, and that the tenth of June Anno 11. supradict. gave to him a poison called Mercury, sublimate in Tarts, and the fourteenth day of September, Anno 11. supradict. gave him a Glister mixed with poison called Mercury sublimate; (Vt predict. Thomam Overbury magis celeriter interficeret, & murdraret.) Et praedictus Thomas Overbury de separalibus venenis praedictis, & operationibus inde a praedictis separalibus temporibus, etc. graviter languebat, usque ad 15. diem Decembris Anno 11. supradict. quo die dict. Thomas de praedict. separalibus venenis obiit venenatus, etc. And albeit it did not appear, or could appear, of which of the said poisons he died, yet it was Resolved by all the Judges of the King's Bench, that the Indictment was good; for the substance of the Indictment was, whether he was poisoned, or not; and it appeared that Weston within that time aforesaid, had given unto Sr. Thomas Overbury divers other poisons, as namely the powder of Diamonds, Cantharideses, Lapis Causticus, and powder of Spiders and Aquafortis in a clyster. And it was resolved by all the said Judges, that albeit all the said poisons were not contained in the Indictment, yet the Evidence of giving them was sufficient to maintain the Indictment, for the substance of the Indictment was (as before is said) Whether he were poisoned, or not. And when the cause of the Murder is laid in the Indictment to be poison, no Evidence can be given of another cause, because they be distinct and other causes: So if the Murder be laid by one kind of Weapon, as by a Sword, Dagger, Stiletto, Stick, Tobacco-pipe, Knife, Sheers, or other like Weapon, it makes no difference, the Evidence will be sufficient, if the party be slain by any of these, because they are all under one Classis or cause. 
v. Mackally's Case, li. 9 fo. 67.   
And afterwards, Anne Turner, Sr. Gervase Elwys, and Richard Francklyn a Physician (Purveyor of the Poisons) were Indicted as Accessaries before the fact done: And it was Resolved by all the said Judges, that either the proofs of the poison contained in the Indictment, or of any other poison (although it were out of the Indictment) were sufficient to prove them Accessaries; for the substance of the Indictment against them as Accessaries, was, Whether they did procure Weston to poison Sr. Thomas Overbury, or no? So that it may be observed here, what in the Case above was observed by the Lo. Coke, that Jurors were not to expect a direct and precise Proof in every point laid in the Indictment; showing, how impossible it were to Convict a Poisoner, who useth not to take any Witnesses to the composing of his slibber-sauces; neither do other Murderers, to the contriving of their malice, and manner of killing another, but keep the fire burning in their own bosoms until it break out.  
Nor in all Cases of Murder is it material, that express Malice be proved to the Jury of Life and Death, though they be to Convict the Prisoner, much less (or not at all) is it material to prove it to the Grand Jury, who are but to present it, not to the Jury of Life and death in any case where the Law only implies it, for such proof is in the Judgement of the Court and not in the Jury, which the Jury must submit unto and be overruled in; much less is this implied Malice to be proved to the Grand Jury, for it lies not in the proof of Witnesses, but in the construction of the Law (as is said before;) and yet the Grand Jury must find those words, Ex malitia praecogitata, etc. as if they were proved expressly unto them by Witnesses, or otherwise the Jurors of Life and Death cannot inquire of the offence (as 
n Murder is a wilful kill 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, Mordrens, which so signifieth; and Mordridus is, the Murderer, 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 Murder, fol. 207.  Murder:) And the Jury of Life and Death (in such a Case) must find those words expressly, although they cannot be proved unto them, but are only implied and supplied by Law, or else the party accused can never be Convicted of Murder, as might be instanced in very many cases, take some for all (viz.) One in prison kills his Keeper, and makes an escape, where no malice or falling out can be proved; a stranger, or other person kills a Watchman, Constable, or other Officer, that hath good warrant to stay him, though happily there be no cause for his stay, being an Innocent person, or another person, and not the same they intended; here's no Malice, yet this is Murder ex malitia praecogitata, etc. One goes into the Street, or Highway, and kills the first man he meets, although he did never see him before; The Father or Mother takes their sucking Child, and dasheth out the Brains of it against the wall; Two persons are fight a Duel together upon cool blood, upon premeditate malice, and a third person comes to part them, and is killed by one of them, this is Murder ex malitia praecogitata, in him that killed him (if not in both) although neither of them ever saw him before, and yet no malice to this man: 
o Si sit aliquis qui mulitrem pregnantem percusserit si puerperium non formatum, vil animatum fuerit & maximè si animatum, fecit homicide: Stamf. fol. 12. In this fol. you shall find Justice Stamford using the words homicide. & murdrum, as signifying the same. v. Stamf. fol. 21. c. 13.  One wilfully kicks or wounds a Woman great with Child, whereby the Child is wounded in her, she is afterwards safely delivered of the Child (the Child alive) the wound or bruise by the kick or blow appearing upon the Child mortally, whereof afterwards it dies, this is Murder ex malit. praecog. and yet what malice had this man to the Child he never did see? Divers persons are unlawfully hunting in a Park, one of them kills the Keeper (after the Keeper had duly, according to his Office, admonished him to stand) all the rest of the Company (although a mile off in the said Park, and out of sight) are guilty of wilful Murder of the Keeper, and yet nothing of malice can be expressly proved. One is shooting at a Cock or a Hen, and kills another person, this is Murder, his act was unlawful. One finding a Gun or Pistol charged, lying upon a Table, or other place, takes it up into his hands, draws up the Cock (not thinking it to be charged) and in a jesting way gives fire at one in the Room, the Gun goes off and kills him; this is Murder, he had nothing to do to meddle with the Gun, it was out of his Calling, and none of his, he must Jest at his peril. A Drunken-man gets upon a Horse (which a sober person might ride quietly) and in a Fair or Market occasions the Horse to run over another person, and kills him; this is Murder. A giveth B the lie, with many other provoking words, as Coward, Thief, Murderer, whereupon B strikes A, and kills him; this is Murder ex malitia, etc. words are not a sufficient provocation for one man to kill another. If one killeth another without any provocation (actual) of the part of him that is slain; 
Coke li. 9 fo. 67. 6. in Mackally's Case.  this is Murder, the Law implieth Malice. If a man knowing that many People are coming along the Street from a Sermon, 
3. Inst. fol. 57  throw a Stone over a wall or house, intending only thereby to fear them, and thereupon one is killed with the Stone; this is Murder, although he knew not the party slain. If A assault B to rob him, and in resisting A killeth B; this is Murder by malice implied, although he never knew him.  
If one meaning to steal a Deer in a Park, 
3 Inst. fol. 56.  shooteth at the Deer, and by glance of the Arrow killeth a Boy that is hidden in a Bush; this is Murder, the Act being unlawful, though here was no intent to hurt the Boy, knowing nothing of his being there.  
If a Woman being quick with Child, 
22 Ed. 3. Coron. 263.  do wilfully with a potion, or otherwise, intent the destruction of the Child in her womb, the Child being born alive, dieth of the potion, battery, or other cause; this is Murder.  
If one keep a Mastiff-dog, that is used to bite people, near the Common Highway, or a Bull or Beast, that hath hurt any one (after notice) they kill any one, it will be Murder in the Owner, although not present when the fact was done; and yet in this, and the other precedent Cases, here is no express Malice to be proved, but what the Law construes to be so, which can in no sense be left to the 
p Murder is interpretative in the Law, and not to be left to Grand Jurors opinions.  Grand Jury to be judge of. But in all these Cases, and many more, must be ruled and overruled by the Judgement of the Court, in point of Law.  
Although no Malice in these Cases can be proved to the Grand Jury or petit Jury, 
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.  yet the Indictment must be expressly drawn, and so found by the Grand Jury, with these words to make it Murder, Ex malitia sua praecogitata, etc. that is, that he killed him out of his malice, forethought; not that these words make a new offence of Felony and Murder, that was not Felony and Murder before, and so esteemed in all Cases where it was done voluntarily and by assault; and this appears plainly by the Statute of Marlebridge (formerly mentioned) 35 H. 3. where it is said, Murder from henceforth shall not be adjudged, before our Justices, where it is found by Misfortune only, but it shall take place in such as are slain by Felony, and not otherwise. By this Statute it is plain, that killing one unawares, by misfortune, was Murder before this Statute, and that after this Statute, all other killing, where it is Felony, shall be Murder, as before this Statute, Felony is a general term, 
Terms of the Law, Felony 160. fol.  which comprehendeth divers heinous offences, for which the Offender ought to suffer death, and lose their Goods and Lands. They are called Felonies of the Latin word Fel, which is in English Gall, in French Feil, or of the ancient English word Fell or Fierce, or because they are intended to be done with a cruel, bitter, fell, fierce or mischievous mind.  
So the Statute de Officio Coronatoris, made 4 Ed. 
4 Ed. 1.  1. (where the Coroner is well directed his duty) where any person is slain, or suddenly dead, how he should behave himself, which is worth his reading. It follows in the said Act in these words, And if any▪ be found Culpable of the Murder, the Coroner shall immediately go to his house, and Inventory his Goods, Chattels, Lands, etc. (as in that Act is further directed) I only mention it to show, that all that were found so slain, the Coroner was to inquire of it, as Murder, or otherwise there could be no Inventorying of Goods, valuing, or seizing of Lands, etc. or committing the Offender to the Goal by the Coroner, as plainly doth appear by that Act.  
So the Statute of the second of Ed. 
2 Ed. 6. c. 24.  6. where one is stricken in one County, and dies in another (it being doubtful before where the Trial should be) gives power to the party concerned, to bring an Appeal (who had not power to Appeal in that case before) of Murder only in the County where the party dies, and in that case can bring no Appeal of Manslaughter (as in the straightened sense some would take the word Manslaughter) by this Statute is declared, That where any Murder or Felony (which word Felony here cannot comprehend Manslaughter) shall be committed in one County, and there be Accessaries to the same in another County, upon an Indictment found in the County where such Accessaries are guilty, the Certificate of the Conviction or attainder of the Principal shall be good, to proceed against such Accessaries: So that if the Principal be not Indicted of Murder, I conceive it is doubtful upon this Statute, to proceed to the Condemnation and Judgement of the Accessary in another County, for by no congruity can the words or Felony comprehend Manslaughter. A Pardon of all Felonies will hardly pardon Manslaughter, or be allowed of.  
So in the 4th of H. 
4 H. 7. c. 13.  7. cap. 13. there are these words in the Statute, Whereas upon trust of the privilege of the Church, divers persons have been the more bold to commit Murder, etc. because they have been continually admitted to the benefit of the Clergy as oft as they offended; It is enacted, That every one being once admitted to have the benefit of his 
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 Laymen that could read, which is more than the Common Law requires. Stamford fol. 123. The first that mentions this Privilege 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 Pope's Constitutions the Privilege 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 Murder, petty Treason, and Felony, not in Treason against the King himself.  Clergy (if not within Holy Orders) shall not a second time be admitted for such an offence. And that every person so Convicted for Murder, to be marked with an M upon the brawn of the left Thumb, and for another Felony with a T. Here it is plain that the word Murder comprehend all manner of Manslaughter, all manner of Felonious kill, every Murder being Manslaughter, and every Manslaughter then as Murder, they being Termini convertibiles, equally signifying the Genus of Man-killing, you may perceive by what hath been said before, that Felony cannot comprehend Manslaughter or Murder, for here the one is to be burnt with an M for Murder, the Felon with a T for Theft, both which marks, upon the respective Convictions, are (as I conceive in those Cases) by virtue of this Statute, observed to this day, although we now apply the Letter M to such, as the Jury of Life and Death, upon an Indictment of Murder from the Grand Jury, shall Convict of Manslaughter, that is, upon the point shall find this Special matter, that is to say, that there was no Malice, express or implied, in him that killed the other; but in a sudden heat of blood, occasioned by an actual (not verbal) provocation in him that was killed. This contradistinction betwixt the two words, Murder and Manslaughter (as I conceive) came into our Laws only since the Statute of the 23 H. 8. c. 1. that takes away Clergy, that is, will not accept of them to be Clerks that kill another maliciously. I find not this distinction before, either in the Levitical Laws (the Laws of God) or the Laws of England: No Sanctuary or place of Refuge (as is said before) by the Law of God, being allowed for such a distinction, but both should have been plucked from the Horns of the Altar; and by our Law, in both cases (notwithstanding this Novel distinction) they were equally admitted to Clergies, I mean by the Common Law.  
The said Statute of the 4 H. 7. c. 13. being the first Statute (that I find) that appoints burning in the Hand for Murder and Felony, and takes away Clergy for the Second offence of the same kind, where Clergy hath been allowed before; and it is observable, that in this Statute it is called Murder, with, or without the words Ex malitia praecogitata, not having respect to our Modern distinction, which holds only (as is said) in the enquiry of the Jury of Life and Death, who have the whole matter of Fact before them, with all the circumstances thereof as it ariseth from both sides, which the Grand Jurors neither have, nor aught to have.  
Then comes the Statute of the 23 H. 
23 H. 8. c. 1.  8. (formerly mentioned) being the first Statute that takes away Clergy for the first offence of Murder, called in this Statute Wilful Murder 
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. , of Malice prepensed; this Statute being made to rectify the great abuse in Ordinaries, in suffering notorious Thiefs and Murderers to make purgation, and provides, That no person which hereafter shall be found guilty (after the Laws of this Land) of any petit Treason, or for any Wilful Murder of Malice prepensed, Robbing of Churches, Robbing of Persons in their houses, or upon the Highway, wilful burning of Houses, or Barns with Corn, or Accessaries before the same, shall be from henceforth admitted to the benefit of their Clergy, but suffer death as if they had been no Clerks; it seems all that were, that is, as many as the Ordinary then esteemed so, Clerks, although they were guilty of Murder, petty Treason, and Felony, suffered not death, (so great favour and immunity had they in those times for such bloody and crying sins) so prevalent were the Clergy, and those within Holy Orders, in those days, that this very Act of Parliament, that takes away Clergy from others, that commit Murder, Burglary, and Robbery, and other Offences beforenamed, excepts all within Holy Orders 
t Within five years of the time of King Henry the Second, there were above a 100 Murders by Priests and men within Holy Orders. , from the same pains and dangers other persons must suffer for the same Offences; which freedom and Indulgence continued to them in Holy Orders (as they call it) until the 28 H. 8. c. 1. which provides, That they within Holy Orders, as to such and other Offences, 
u The Exemption of the Clergy taken away by the Laws of Clarendon, Graft. 1187.  shall be under the same pains and dangers that others be. Now this Statute makes none of the former offences Felony or Murder, that was not so before the making of this Statute, but only takes from them (that commit any of these offences) the benefit of their Clergy; certainly there wanted not those that committed wilful Murder of Malice prepensed (as we now distinguish it) before the making of this Statute; as those that committed Sacrilege, robbed persons in their Houses, and upon the Highway, wilfully fired Houses, and Barns with Corn, and were Abettors to the said Offences: so it is very plain, that this Statute makes no alteration as to the drawing and penning of Indictments of Murder, Sacrilege, Robbery, Burglary, etc. but only takes away Clergy from every person, who after the making of that Statute should be found guilty (as the words of the Act are, after the Laws of this Land) for any of the aforesaid Offences. So that according as the Indictment of Murder was, by the Laws of this Land, before the making of this Act, so must it be after the making of this Act wilful Murder, in the Statute 32 H. 8. c. 12. and this Statute of the 23. of the same King, comprehends as well that which we call Manslaughter, and every kill where the will of man is freely engaged, as it doth wilful Murder of Malice prepensed; compare them together, in the one you will find Clergy taken away for wilful Murder of malice prepensed, and Sanctuary from wilful Murder, and generally such Offences as were prohibited Sanctuary by former Statutes are now prohibited Clergy by later Statutes. The words Ex malitia praecogitata, & murdravit (which now make all this contest) before the making of this Statute in any case of Murder, neither aggravated nor extenuated the Offence, made it neither more nor less penal. But since the making of this Act, those words are made necessary in all Indictments and Convictions of Murder, and principally and only (in cases of wilful Murder) to be considered and weighed by the Court and Jury of Life and Death, upon hearing and debating the matter, with all its circumstances (as hath been said before) on both sides; those words being matter of Law, mixed with matter of Fact, and are not to be expunged by a Grand Jury, because they cannot afterwards be supplied nor employed by the Court, and Jury of Life and Death after the Arraignment of the Prisoner, should there appear upon Trial never so great cause, yet Felonicè and some other words (though material) may be supplied in a Special Verdict. If upon an Indictment of Murder, quod Felonicè percussit, etc. the Jury find percussit tantum, yet the Verdict is good; for the Judges of the Court are to resolve upon the special matter, whether it was Felonicè, 
Cok. lib. 9 69.  etc. or not? Coke lib. 9 69. And if the Court adjudge it Murder, than the Jurors, in the conclusion of their Verdict, find him guilty of the Murder contained in the Indictment, and to show the power of a Jury of Life and Death (who indeed should have the fullest and highest Charge can be laid against the prisoner, for the Offence he is to be tried). If A. be Appealed or Indicted of Murder, viz. that he of malice prepensed killed B. A pleads that he is not guilty modo & forma, yet the Jury may find A guilty of Manslaughter, without malice prepensed; because the kill of A. is the matter, and malice prepensed is but a circumstance, 
Blow. Com. 101  Blow. Com. 101. And generally where modo & forma, are not of the substance of the Issue, but words of form there, it sufficeth, although the Verdict doth not find the precise Issue, 22 H. 8. c. 19 
22 H. 8. c. 19   
The first Statute that I find these words mentioned in of malice prepensed, 
22 H. 8. c. 14.  is the 22 H. 8. c. 14. where it is said, If any person, for any petty Treason, Murder, or Felony, have obtained the King's Pardon, or is otherwise discharged out of Sanctuary, and afterwards commit another petty Treason, Felony, or Manslaughter by Chance-medley (and not Murder of malice prepensed) and afterwards take Sanctuary again for any such petty Treason, Felony, or Manslaughter by Chance-medley, the same person shall enjoy a second privilege of Sanctuary: So that he that committed Murder of malice prepensed, could not enjoy the benefit of Sanctuary a second time.  
Then comes the Statute of the 25▪ H. 8. c. 3. 
25 H. 8. c. 3.  and remedies divers defects that were in the said Statute of the 23 H. 8. Forasmuch as the said Act extended only to such persons as were found guilty, after the due course of the Laws of this Land, divers and great Robbers, Murderers, Burglars, and Felons, did commit those Offences, perceiving, and clearly understanding (by the words of the said Statute) that they should not lose the benefit of Clergy, unless they be found guilty, after the due course of the Law, upon their Arraignment of, and upon the said Murders and Felonies so by them done and committed, by reason whereof divers of the said persons, upon their Arraignment of the said Offences and Felonies upon their Indictments against them, would stand mute, and sometimes challenge peremptorily over the number of Twenty, or else would not answer directly to the same Indictments whereupon they were Arraigned according to Law; It was therefore provided by this Statute, That every person that hereafter should he Indicted of petty Treason, wilful burning of Houses, Murder, Robbery, or Burglary, or other Felony, according to the tenor or meaning of the said Statute of the 23 H. 8. and thereupon Arraigned, and do stand mute of malice, or froward mind, or challenge peremptorily above the number of Twenty, or else will not, or do not answer directly to the same Indictment and Felony whereupon he is so Arraigned, shall lose the benefit of Clergy, in like manner and form as if he had directly pleaded to the same petty Treason, Murder, Robbery, or other Felony whereupon he is so Arraigned, (not guilty) and thereupon had been found guilty after the Laws of the Land. Upon the penning of this Act it seems clear that all Indictments for the unlawful or wilful kill of any person, aught to be made Murder as they were formerly before this Act. For if the Prisoner should be Arraigned upon an Indictment only of Manslaughter (according to the now distinction of Manslaughter) and upon his Arraignment should stand mute, not Answer directly, or challenge peremptorily, whereby he could have no Trial, it would be a great question, Whether he could have Judgement upon this Act? The words are, petty Treason, wilful burning of Houses, Murder, Robbery, Burglary, or other Felonies; For as it is not named here by the term Manslaughter, so it cannot (with any congruity) be comprehended under any of those Heads: Not under the general Head of other Felonies, after the commemoration of so many several Felonies next before, as Burning of Houses, Robbery, Burglary, and other Felonies, must needs be intended of such like Felonies or Thefts. And what Judge (in case of Life and Death) will proceed upon such a moot point (or rather a clear Case to the contrary) to give Judgement and Sentence of Death upon any by this Act of Parliament.  
Then comes the Statute made in the 28 H. 8. c. 1. 
28 H. 8. c. 1.  and rehearseth all these former Statutes, viz. 22 H. 8. 23 H. 8. and the 25 H. 8. and continues them all until the next Parliament; and provides further, That such as be within Holy Orders, shall be under the same pains and dangers that others be; (all within Holy Orders being by the 23 H. 8. excepted in Cases of Murder, petty Treason, and Felony, from the pains and dangers that Lay persons suffered for such offences). It seems those in Holy Orders than began to lose their esteem, as appears more fully in the ensuing Act, which perpetuates the former Acts.  
Then comes the Statute made in 32 H. 8. c. 3. 
32 H. 8. c. 3.  and rehearseth the same Acts again, and makes them perpetual; and Enacts, That all persons within Holy Orders, which by the Laws of this Realm ought, or may have their Clergy for any Felonies, and shall be admitted to the same, shall be burnt in the hand, in like manner as Lay Clerks in such Cases, and shall suffer all such pains, dangers, and forfeitures as Lay persons in like Cases.  
Then comes the Statute of the 1 Ed. 6. 
1 Ed. 6. c. 12.  and after it hath declared what Acts shall be Treason; declares what Offences shall be outed of Clergy, viz. Such persons, as in due form of the Laws, shall be attainted or convicted of Murder of malice prepensed, of poisoning of malice prepensed, of breaking of any House by day or by night (any person being put in fear) robbing any person in or near the Highway, felonious stealing of Horses, Geldings, or Mares, or for felonious taking of any Goods out of any Parish Church, or other Church or Chapel; all Offenders in any of these Cases shall be excluded of the benefit of Clergy, whether they be convicted by Verdict, Confession, or stand Mute, etc. and that in all other Cases of Felony, Clergy may be allowed. Here is no mention of petty Treason, burning of Houses and Barns with Corn, and Accessaries before, to be outed of Clergy, as is in the 23 H. 8. c. 1. So that it seems after the making of this Act, they might have had their Clergy; the new Offences added to this Act to be outed of Clergy (that were not in that Act of 23 H. 8. are only stealing of Horses, Geldings, and Mares: And by this Act Poisoning is made Murder, 
Poisoning murder, although no malice be proved.  although no malice be proved, and Clergy taken away.  
Then comes the Statute of 2 Ed. 6. 
2 Ed. 6. c. 24.  and this Statute gives remedy in several Cases of Murder and Felony (where there was none before at Common Law). As first, where one is feloniously stricken in one County, and dies thereof in another. Secondly, where one is Accessary in one County to a Murder, or Felony in another County; before this Statute, no sufficient Indictment in any of these Cases, could be taken in either of the said Counties; for that by the custom of the Realm, the Jurors of the County where such party died of such stroke, would take no knowledge of the said stroke (being matter of Fact) in a foreign County, although the said Counties and Places adjoined very near together; nor the Jurors of the County where the stroke was given, could take knowledge of the death in another County, although such death most apparently came of such stroke; so that such Offence (and the other Offences before mentioned) for the like reason remained unpunished; and such Murder could not be proceeded against, either by way of Indictment or Appeal: Now this Statute provides, That an Indictment found by the Jurors of the County where the death shall happen, whether it be found before the Coroner, upon sight of the dead Body, or other Justices that shall have power to inquire of such Offences, shall be as good and effectual in Law, as if the stroke and poisoning had been committed and done in the same County where the party shall die, or where such Indictment shall be found.  
And likewise provides, That such Party, to whom Appeal of Murder shall be given by the Law, may commence, take, and sue Appeal of Murder in the same County, where the same person so feloniously stricken or poisoned shall die, as well against the Principals, as against every Accessary to the same Offences, in whatsoever County or Place the Accessary or Accessaries shall be guilty of the same. And doth further provide, That where any Murder or Felony shall be done in one County, and another person, or more, shall be Accessary, or Accessaries, in any manner of wise to any such Murder or Felony in any other County, that then an Indictment found or taken against such Accessary, or Accessaries (upon the Circumstances of such matter before the Justices, etc.) where such Offence of Accessary shall be committed, shall be as good in Law, as if the principal Offence had been committed in the same County where the same Indictment against such Accessary shall be found. 
Cok. l. 9 f. 117.   
Here it may be observed, That the Appeal given by this Statute to the party, where one is wounded or poisoned in one County, and dies thereof in another, must be an Appeal of Murder, otherwise it will not lie either against Principal or Accessary by the words of this Statute. So in case of an Indictment (where it is said in this Statute, where any Murder or Felony shall be committed in one County, and the Accessary be in another County) here the word Murder must be one Species, and Felony, that is Thest, another; viz. carrying of stolen Goods into another County: So that the Indictment in this case against the Principal must be Murder, or the Accessary thereto is not tryable in another County; and there must be a Certificate of such Conviction or Attainder of the Principal under the Seals of the Justices before whom such Principal was Convicted or Attainted, before such Accessary can be tried; and that shall be sufficient to enable the Justices to try the Accessary in Murder or Felony in another County. And although the word Manslaughter be mentioned in this Statute (as thus, within the year and day after such Murder and Manslaughter committed) it is not here mentioned, as any Species of Murder, but only as the Genus called in this place only Murder and Manslaughter.  
Then comes the Statute of the 5 Ed. 6. 
5 Ed. 6. c. 9  and Resolves three several Doubts or Questions moved upon the Statute of the 23 H. 8. c. 1. 
This is not much pertinent to this purpose, but that it takes away Clergy, and relates to several Statutes before mentioned concerning murder.  The first Doubt was, Whether Clergy were taken away by that Statute, unless the very Felony and Robbery were committed in the very Chamber or Place where the Owner, Dweller, his Children, or Servants should happen to be (although they were in some other part of the House). The second Doubt was, If it were done in the Chamber, and the parties there asleep, and so not put in fear. The third Doubt was, Where such Robberies or Felonies are committed in a Booth or Tent in any Fair or Market, the Owner, Children, or Servants being then put in fear, whether Clergy should be taken away by that Statute in any of these Cases.  
For the clearing of these three Doubts it was Enacted, That if any person be convicted for robbing any in any part of their dwelling House, or dwelling Places (the Owner, his Children, or Servants being in any part of the said House or Precincts thereof) whether sleeping or waking, such Offender shall not be admitted to his Clergy. And so he that robs any Tent or Booth, in Fair or Market, whether the Owner, his Wife, Children, or Servants be sleeping or waking in the same, shall lose his Clergy.  
Then comes the Statute made in the 5. 
5 Ed. 6.  of Ed. 6. and takes away Clergy from those, That commit Burglary or Robbery in one County, and carry the Goods into another County, and are there legally convicted.  
This Statute likewise declares the Statute made the 25 H. 8. c. 3. 
25 H. 8. c. 3.  shall stand in force, notwithstanding a Clause comprised in the Statute of the 1 Ed. 6. c. 12. 
1 Ed. 6. c. 12.  which makes void a Clause in the said Statute, and takes away the force of it in taking away Clergy from such as commit Robberies and Burglaries in one County, and are convicted of the Felony for bringing the stolen Goods into another County. For whereas the said Statute of the 1 Ed. 6. c. 12. declares, That such as are convicted or attainted of Murder of malice prepensed, or of poisoning of malice prepensed, or of breaking any Houses by day or by night, (any person there being put in fear) or robbing any person in or near the Highway, or for stealing Horses, Geldings, or Mares, or Felonious taking any Goods out of any Parish Church, or other Church or Chappel, should not have the benefit of Clergy. And that in all other Cases of Felony (other than such as before are mentioned) Clergy should be allowed in like manner as it might have been before the 29 day of April, in the first year of King Henry the Eighth, by reason of which Article or Clause the said Statute, made in the 25 H. 8. which did put such Felons and Burglarors from their Clergy, that do such Offence in one County, and after are taken with the Goods stolen in another County, and there Arraigned and found Guilty, was made void, to the great boldening and comfort of such Offenders: It is by this Act Enacted, That the said Act made in the said 25th year, touching the putting of such Offenders from their Clergy, 
Cok. l. 11. f. 31.  and every Article, Clause, and Sentence contained in the same touching Clergy, shall from thenceforth (touching such Offences) stand and be in force.  
Then the Statute of 2 & 3 of P. 
Stat. 2 & 3 P. & M. c. 17.  & M. c. 17. takes away the benefit of Clergy only from Bennet Smith, for being Accessary to the Murder of Giles Rufford before the Murder committed, and for procuring of the same.  
Afterwards the Statute of the 4 & 5 of P. 
Stat. 4 & 5 P. & M. c. 4.  & M. c. 4. takes away Clergy from every person, That shall maliciously command, hire, or counsel any person or persons to commit any petty Treason, wilful Murder, Robbery in any dwelling House or Houses, 
Dier f. 183, 186. Cok. I. 11. f. 35.  Robbery in or near the Highway, or wilfully to burn any dwelling House, or any part thereof, or any Barn having Corn or Grain in the same.  
Here I had thought to have proceeded, and to have mentioned (in order of time) all such Statutes as were made in any King's Reign, to take away Clergy in any Case of Felony, but that would be too much to assume another Subject, than what principally is here intended, having made too great a digression already, yet not altogether unuseful herein.  
Then the Statute made 1 Jac. c. 8. 
1 Jac. c. 8.  takes away Clergy from him that shall stab another, that hath not first stricken, nor hath a weapon drawn (if he die thereof in six months, although no malice can be proved) except it be done se Defendendo, or by misfortune, in keeping the peace, or correcting his Servant or Child. This without all question was Murder (by malice employed) before the making of this Statute; and such a kind of killing is adjudged Murder at this day, that is, where one shall wilfully kill another (by any weapon) without provocation from him in deeds; for no provocation in words [only] will make it Manslaughter, or less than Murder. And (in my judgement) it is an Error in practice of this Indictment upon the Statute of Stabbing, to leave out the words (ex malitia praecogitata) in the Indictment: For the words of the Statute are (although no malice can be proved) then sure the meaning of the Statute is (as in other cases) it shall be employed: And in all Indictments, where malice is only employed, and cannot expressly be proved, those words ex malitia, etc. must be put into the Indictment, to make it Murder, and to take away Clergy, and by such words the Indictment will be good, both upon the Statute, and at Common Law.  
And so are the Indictments made against lewd Women that kill their bastard children, upon the 21 Jac. cap. 27. 
21 Jac. c. 27.  although the special matter of the Statute be put into the Indictment, viz. That it is a bastard Child, and born of her body alive, yet the words, ex malitia praecogitata, are always put into the Indictment; which malice the Law implies, although none can prove the child born alive, and none can be presumed to bear malice to a dead child: And haply it might be born dead, or die after it was born, against the will of the Mother, of her Throws and Strive, to be delivered without help. It is not the burying of the Child, or hiding of it, that makes it Murder upon the Statute (as some have conceived) for if the Child be found dead in Bed by her side, or in her bosom, yet it is Murder; 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 Murder: If she can prove by one Witness it was born dead, than 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 Murder before, 
1 Jac. c. 8. 21 Jac. c. 27.  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 Murder, 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 Judgement of the Judge in point of Law, that the Child (supposed to be murdered) was born 
x Note this here, the Grand Jury find as it is laid in the Indictment by the King's Counsel, that the Child was born alive, although they have not the least Evidence for it, and yet I trust they are not forsworn.  alive, and by her murdered, in regard she being a lewd woman, and contrary to the Custom of honest and innocent women (who always desire help in their Labour) chooseth to be delivered alone, this Statute puts the proof upon her (if she will avoid so strong a presumption of Murder) 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 stabbed him into the Body with his Dagger, whereof he died: 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 denied his Clergy, and after Judgement 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 
y Sir Wadham Windham, Kt. one of the Justices of the Common Pleas.  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 Sergeants 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 Judgement of Death at the Assizes; and yet the words of the said Act of Parliament are (although his Son, or Servant, die 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 than would have had it) the party had been capable of Clergy, and so might have escaped that Judgement 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 Judgement 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 Murder made, that was not so before the making of those Laws, as might be instanced in Murder, Robbery, Burglary, Sacrilege, 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 Murder where malice appeared, and other mixed and simple Felonies, which were then most raging and reigning Offences in the Kingdom, and cried 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 Murder and Felony at the Common Law before; from whence I conclude, that the Forms of Indictments of Felony or 
z The name of Murder was not changed, but the Law retains it continually for the heinousness of the Crime. Stamford fol. 19 If not the name, than not the words that make it so.  Murder, 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. 
23 H. 8.  Certainly there were Murders committed, and that frequently, of malice forethought, before the making of that Statute, and those Murderers 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 farewell 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 stolen be found with the Thief, and the dwelling House broke, because no Witness stood by to see the breaking of the House, entering into it, and stealing thence the Goods: Or against a Cutpurse, though the Purse or Money 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 & secret, & 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 Highway, against those that rob in Vizards, notwithstanding the money 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 killed 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 stolen; 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 killed by another, it may be Murder, 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 employed in the criminous Person.  
And if it be so difficult in cases of blood for Grand Jurors to determine what is Murder, 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 Murderer, and take the imputation of bloodguiltiness 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 Judgements 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 Murderer: 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 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, 
Stamf. fol. 17. Pl. Coron. Tit. Coron. Fitz. V. 15 Ed. 2. p. 383.  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 Murder, because his will appeared so plainly to have killed 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 intent only to beat another, 
Vid. Tit. Memorat. p. 331, 350.  to strike him, but not to kill him, and the party die of the stroke, it may be murder in him that gave the stroke. 
Hales & Petit Case le Com. 261. a.  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 murder, 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, 
18 El. Pl. 474.  to kill his Wife, give her (lying sick) Poison 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 poison, this is murder though the Wife recover; for the Poison ministered 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 killed; and in this Case the Grand Jurors found it murder. So if an ignorant person take upon him to give Physic to one that is not well, and through his ignorance administereth that unto him that (apparently) kills him, this is murder. 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 killed 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 Murder would be prevented, as in challenging upon his trial above the number of twenty Jurors; the Statute of the 22 H. 
22 H. 8. c. 14. made perpetual by 32 H. 8. 3. Brook Challenge 217.  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, Murder and Felony, challenge above twenty Jurors, without showing cause: And in case of Treason, and misprision of high Treason, it was taken away by the Statute of 33 H. 
33 H. 8. 1, 2 Ph. & Mar.  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 Raleigh and Geo. 
Hil. Ja. R.  Brooks: By this Statute it is plain, that if one be Indicted or Appealed for Murder, and challenge above the number of twenty Jurors peremptorily (without showing 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 Murder 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 Judgement of Pain 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 Inquests of Felonies, which men do prosecute at the King's 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, 
Stamford lib. 2. fol. 149. Poulton De Pace, fol. 211.  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 Judgement 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 humour to refuse Trial, challenge peremptorily, and make indirect Pleas.  
It is the severest Judgement (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 Pressed 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, 
4 Ed. 4. 11. 14 Ed. 4. 7. 6 H. 4. 2.  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, 
No Forfeiture but of Goods. Fit. Esch. 19  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 Foreign 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, Murder, or Felony, that Foreign 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 try the petit Treason, Murder, or Felony. 
Coke 3 Inst. fol. 27.  If a man be Indicted of Treason he may plead a Foreign plea, which shall be tried in another County, otherwise in cases of Murder, Petit Treason, and Felony.  
Another inconvenience may be upon the Statute of the 6 H. 
6 H. 8. c. 6.  8. c. 6. By that Statute, the Justices of the King's Bench are impower'd to remit the bodies of Felons and Murderers 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.  Stamf. fol. 157. this Statute only provides in case of Felony and Murder, 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 Murders and Felonies; the Statute of the 23 H. 
23 H. 8. c. 13.  8. c. 13. provides, That in Trials of Murders and Felonies there proceedings shall not stay as formerly, or be delayed 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, 
Every Manslaughter is Felony, but not e converso.  whatever 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 justify 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. 
27 H. 8. c. 25.  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, Murders, Manslaughters, or Felonies, whatsoever they be, etc. 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. 
1, 2 Ph. & Mar. c. 13.  & 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 Mainprize, shall take the examination of the Prisoner, and Information of the Accuser, and certify it at the next Goal-delivery, etc. Here you see Manslaughter and Felony both expressed, as necessary, several times in the Act.  
So the Statute of the 23 H. 
23 H. 8. c. 12.  8. c. 12. that directs the manner of punishing of offences in the King's Palace or House, says, All Treasons, Misprisions of Treasons, Murders, Manslaughters, and other malicious Striking, etc. and so divers other Acts of Parliament (as might be showed) 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. 
Kel. fol. 98.  It is true, that by a Commission granted to certain persons to inquire of all Felonies, they may thereby take Indictments of Murder; though a Pardon of all Felonies will not avail him who hath committed Murder, 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 inquire of all Offences, hath these express words in it, And of whatsoever Murders, Felonies, Manslaughters, Killings; not leaving Manslaughters to be intended by the general words of Felonies or Killings.  
Many more Inconveniences might be showed, but these (with what hath been before showed) may be sufficient, until better reasons appear to satisfy any understanding Grand Juror, to esteem it much the better way to find such Bills Murder, 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 Murderer 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. 
23 H. 8. c. 1.  8. c. 1. to find, as they please, either Murder or Manslaughter; not as the Indictment comes to their hands from the King's Council, but as they apprehend the Evidence that is brought to them, taking upon themselves not only the sole Judgement of the Fact, and what the Law is that ariseth upon the said Fact, taking the Judgement 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 Murder 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, etc. 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 Error will justify 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 Inferior County Courts, where (many times) are ignorant Judges, and mean Clerks; and in ordinary Offences this Maxim 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 Maxim 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 practise, but to correct and destroy Errors of all kinds, especially in Trials of men's Lives, in Cases of Blood, and whoever shall urge that Maxim against what I have here said, doth by that sufficiently grant, what I have here endeavoured to prove, viz. the error and inconvenience of such practice, which ought no more to be continued, than a long custom, 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 Judgement 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 Controversy 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, and unjustly taken away the Life of another person) to leave it (as an entire fact of Murder) to the Trial and Verdict of the second Jury to find the truth of the Fact (upon hearing of both sides, and receiving the Judgement of the Court) in what species or degree of Murder 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 (Murder being the Genus of the several Species) and in common acceptation, he is accounted a Murderer that kills any man, or reasonable Creature unlawfully; and the Commandment is, Thou shalt do no Murder, which certainly comprehends all unlawful kill, 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 Prosecutor 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 Murder, 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 humour 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 MURDER.  
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 Murder 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, etc. 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 Certify 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, Murder 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 Murder, otherwise the Justices could not judge of it, they never passing Judgement upon a Grand Juries presentment; which, by the way, shows, 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 Murder, 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 Murder 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, etc. for that is not Felony, and so cannot be Arraigned thereupon, whereby to put himself the 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 expressly requires. And if the party shall plead Not guilty to that Special matter found by the Grand Jury, what can that signify (as before hath been showed) 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 Murder or Manslaughter; then no Judgement 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 Murder 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 Judgement) 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 Murder or Manslaughter in the same case (as before is showed;) 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, 
Stamf. fol. ult. 6.  that Respite of Execution (where a Woman is priviment enfent) where a Woman after Judgement pleads her Belly, shall be granted only (says he) in Felony: whereas it is grantable both in high Treason and petit Treason. 
Coke 3 Inst. fol. 18.   
A second is, 
Stamf. Pl. Cor. 63. 26 Ass. p. 52.  That the year and the day after the Murder and Homicide committed, shall be accounted after the blow given, or poison administered: whereas it ought to be accounted after the death, 
Coke 3 Inst. fol. 53.  for then the party was murdered, and not after the stroke or poison 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, expressly extendeth to Accessaries before, and leaveth Accessaries after to the construction of Law; 
v. 3 & 4 Ph. & Mar. Justice Dalison 's Rep.  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. 
Stamf. Pl. Cor. 160.  Justice Stamford.  
And again, by the Statute of the 8 H. 
8 H. 6. c. 29.  6. c. 29. Insufficiency or want of Freehold, is no cause of Challenge to Aliens who are Impanelled with Aliens, notwithstanding Mr. 
Stamf. Pl. Cor. 160.  Justice Stamford's Opinion, Pl. Coron. 160. for this Statute saith, That the Statute 2 H. 
2 H. 5. c. 3.  5. c. 3. shall extend only to Inquests betwixt Denizen and Denizen.  
But enough (and perhaps too much) hath been said in mentioning the mistakes of that Reverend and Learned Judge Sr. 
Sr. W. Stamford, Kt. one of the Justices of the Common Pleas.  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 show, that he may as well err 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 justify or maintain a great Inconvenience in practice, especially in Cases of Blood, as before hath been shown.  
FINIS.