THE Earl of Shaftsbury's GRAND-JURY VINDICATED From the Aspersions cast on them in the late Address from some of the Middle-Temple, London.  
SIR,  
HAving little diversion besides the reading of Gazettes and other News-Pamphlets, that of Feb. 20. 1681. came to me of course, which tells us of a Declaration Presented to His Majesty by Edm. Saunders Esq; Councillor at Law, and several other Gentlemen of the Middle-Temple; and Signed by the Gentlemen of that Society: This indeed surprised me at first: but finding no more of the Ancients of the Bar named, nor the Bench so much as mentioned; I concluded presently that 'twas the Act only of some Good-fellows of the House, who being met at a Tavern, and better filled with Wine than Law, thought themselves fit to give an Opinion of all things and persons; and presuming that Number would add weight to their Paper, styled themselves The Gentlemen of the Society; to look big in a Gazette, how unvaluable soever in their Chambers. Nor is it to be wondered at, If a Low- Birth, narrow Fortune, and Debauched Life, do so slavishly expose some men to any great Temptation, as to undervalue their Profession, and abandon Religion. The Laws of England are so tender of men's Lives, that no one can suffer Death but by the averment of twice twelve men, that he committed such a Fact for which that Punishment is awarded, and therefore however of late (for the advancement of Power by depriving men of half that safety which the Law gives them) it hath been given in Charge to Grand-Juries to find upon a probable Evidence, and always the highest Offence, because it may be lessened at a Trial, where 'tis expected the influence of a Court should be great enough to hang or save, according to Directions; Yet let every true Englishman, when he serves upon this Duty, consider what care the Law takes in their returns, not only that they be good and lawful men; but that they be of the Vicinage, and so are presumed to have a clearer knowledge both of the nature of the Fact, Credit of the Witnesses, and Reputation of the Party accused, than any other persons tho' equally able and honest, yet not living within those limits can reasonably be imagined to have; For as my Lord Chief Justice Vaughan observes in Bushels Case, They may have Evidence from their own Personal Knowledge, by which they may be satisfied, and sometimes are, of the incredibility of the Witnesses; and as a Jury cannot discharge that Trust which the Law reposeth in them, if they do not well weigh the Credit of their Evidence and all Circumstances relating to the Fact; so they cannot satisfy their Consciences if they shall deliver a Verdict otherwise than they believe: Therefore my Lord Chief Justice Vaughan in Bushel's Case p. 140. makes this one fault in that Return, That the Jurors are not said to have acquitted the persons Indicted against full and manifest Evidence, Corruptly, and knowing the said Evidence to be full and manifest against the Persons indicted; for how manifest soever the Evidence was, if it were not so to them, and that they believed it such, it was so far from being a Fault, that it was their Duty, because sworn to give their Verdict according to the best of their knowledge; and they had been forsworn, at least in foro Conscientiae to have done otherwise; so that according to the opinion of this great and learned Judge, a Jury must, and cannot otherwise be guided than by their thoughts of the Evidence. What a Court may call clear and plain proof (as they have done in the late and unusual way of examination of Witnesses) may appear far otherwise to them, and for reasons weighty and convincing; and whatever men may say or write yet since they cannot believe as they please, it is not in their power to alter their Judgement according to another's direction. So that there might be motives strong enough to induce the Is. of S. Jury to acquit him, though there had been as many more such witnesses, and had all as positively sworn the Treason, as those that appeared; as the consideration of the Evidence itself, how improbable some things were, and how ireconcilable others to common sense and belief; how infamous the Witnesses were, and what applications they had made to the City (and perhaps to some of them) for a subsistence, before they entered into this Conspiracy; the state of my L. S. as he stood in the way of Popish designs; and therefore necessary to be destroyed, and by no means so advantageous to their Cause, as under the colour of a Protestant Plot to be proved by Popish Evidence. How unlikely a man of his Prudence was to discover such a Design to persons that might betray, but could never give the least advantage to it; how fatal the King's Death must needs be to a man of his Fortune, eminently irreconcilable to Popery and a Popish Successor: the Jurors might have under their consideration these or the like circumstances, and from them conclude, that such thorough and improbable swearing was not gratis; and upon the same reasons that such a party as would be at the charge of such and so many Witnesses, would not spare for Price, nor want opportunity to convey into his Closet the horrid Paper that was found there. It is worth consideration that every Witness comes to a Grand-Jury under the Obligation of this Oath, viz.  
The Evidence that you shall give to the Grand Inquest upon this Bill of Indictment, shall be the truth, the whole truth, and nothing but the truth: so help you God.  
So that hearing all that can be said against the Prisoner, it were very unreasonable if they should not be so tender of his life, as not to hazard it at a further Trial, if what is said on one side be not to them sufficiently convictive; and how can a conscientious Juror aver that upon his Oath, the truth whereof he is not satisfied in his Judgement? For the form of their presentment runs thus, The Jurors upon their Oaths do present, that A. B. is guilty of Treason, Murder, or Felony; for they must upon their Oaths aver the Fact as well as the Subsequent Jury, (or else the Prisoner can never be Convicted) and therefore aught to be as careful in their Verdicts, and not find a Bill upon that Evidence tho' of the Grand Jury, which they would not upon the same Evidence find if of the other, the Prisoner no way defeating it upon his Trial. Of what esteem Grand-Juries were in former times in the Trial of men's lives, (how insignificant soever some would render them now, by directing them to find in Course and Form) may be easily collected from the Statute 3 H. 8. Chap. 12. Which though cited upon all occasions to Justify the Authority in altering of Panels, yet the reason is not observed why that power of reforming was so entrusted; the words are these: Whereas great oppressions have been within most parts of England by the subtlety and undue demeanour of Sheriffs by making and returning for the body of the shires at every Sessions the names of such persons who for the benefit of such Sheriffs will be wilfully forsworn at the solicitation of such Sheriffs and their ministers; By reason whereof many and divers substantial persons, the King's true Subjects, contrary to equity and rigbt, have div●rs and many times wrongfully been Indicted of divers Murders, Felonies, and other misbehaviours by their covin and falsehood, to the utter undoing of their lives, loss of their goods and lands. By the Preamble of this Act, 'tis plain that this power of Reforming was given to no other intent, than that the Subject might have honest Grand-Juries, men of such integrity and understanding, as will-neither be corrupted nor frighted into a false averment of any Indictment, and thereby put the Prisoner in hazard of his life at a farther Trial; which was the only crime of which those Grand Juries so corruptly returned could be guilty; for they could do no more than find the Indictment as it was brought to them, and the Prisoner must afterwards come upon another Trial, and before Justices too, to make his defence. And yet the Statute saith, these Indictments have been to the utter undoing of the lives and fortunes of divers substantial persons the King's true Subjects, especially when found o● course in that manner and form as they are sent to them; which Jurors ought particularly to consider in this age, where violent prosecutions are so frequent, and many undone by great fines upon hasty expressions, (or perhaps pleased with the Libels of the age, and having no other malice to the Government than reading the Wit of the Phamphlets, are made the Publishers, that they may be Fined to their ruin, if they prove not persons of a conscience like these Gentlemen, fully complying to every thing in fashion) lest by a common rumour they mistake that for form which is the essential part of every Indictment, and the consideration thereof absolutely necessary in their giving a Verdict, because the safety or destruction of the Prisoner depends as much upon their finding his Intention as his Fact: For all Indictments in capital Cases must be laid Feloniously, Traitorously, Maliciously, Seditiously, with intention to raise discord between the King and his People, or in such like expressions declearing the intention of the offender. The Bill thus drawn, the Prosecutor looks no farther than the proving those Words or Actions to which that malice is so affixed. Now if a Jury affirms the Indictment thus form as hath been the common course, then indeed the Party is in Law supposed Guilty of all the Malice, as it is there asserted, not that the Law presumes the Malice (as of late hath been too much insinuated into Juries but because the Jurors upon their Oaths do find the Fact committed with such Malicious Intentions; for a cunning Clerk, or learned Attorney General, may with his additions so dress up an ordinary Trespass, as to look like a formidable Treason, and bring a man in question for his Life upon the most trifling offence, if a wise discerning Jury shall not think fit to take off the Varnish, and find the true naked fact as it shall appear to them.  
In the great contested case of Barnardiston and the Sheriff of Suffolk, if the Jury had found only a false Return, and not found it to be done Maliciously and knowingly, as was asserted in the Declaration, who can believe that my Lord Chief Justice Hale, and his then learned brethren in the Kings-Bench, would have given Judgement for the Plaintiff; the knowledge and malice of the Defendant so found by the Jury, was the ground of that Judgement. As in the case of Pen and Mead, who being Indicted for certain Trespasses and Contempts, unlawful Assemblies and Tumults, to the disturbance of the Peace, their Intention appearing otherwise, were Justly acquitted; for though the Evidence was very plain that they with a great number besides were met together, yet the Jurors being upon their Oaths convinced That meeting of theirs was not with any Intention to raise Tumults, or disturb the Peace, as was charged upon it in the Indictment, could not bring them in Guilty. And for want of this careful distinguishing in Juries, we shall in a little time (if London preserves its Charter, have the Apprentices Riots in the Easter holidays when they go to pull down a Bawdy-house, made a new Treason, by the only addition of the word Traitorous to this accustomed riotous offence; and nothing shall for ever hereafter be a Riot (although our Old Laws have known some great tumults to be no more) when a vigorous Attorney General shall think fit to call it Treason   

LONDON Printed for R. Baldwyn, 1682.