THE Grand-Jury-Man's OATH and OFFICE EXPLAINED: AND THE Rights of English-Men ASSERTED.  
A DIALOGUE BETWEEN A Barrister at Law, AND A Grand-Jury-Man.  
London, Printed for Langley Curtis, near Fleet-Bridge upon Ludgate-Hill. 1680.   

THE Grand-Iury-Man's OATH and OFFICE EXPLAINED: AND THE Rights of English-Men ASSERTED.  Grand Jury-man. 
SIr! I am summoned to be one of the Grand Inquest, and I would willingly beg some Information from you touching the nature of that Service by Law.  Barrister. 
I shall readily gratify so Just a Request, being glad to hear you solicitous to understand fully your duty: For that shows your Resolution to perform it Conscientiously. Therefore to come to the matter.  
By the Law of England no person( except in a few extraordinary Cases needless to trouble you with) can be Convicted of any Crime, but there must first two Juries pass upon him.  
1. The Grand Jury, who Presents the offence on the behalf of the King.  
2. The Petty Jury[ in Cases Capital, called the Jury of Life and Death] who are to try the matter of such Presentment between the King and the Party accused.  
The first of these is properly called, The Grand[ or Great] Jury in a threefold respect.  
1. For their Number, other Juries consist but of 12 men; This of more, as 17, 19, 23, or the like.  
2. For their Quality, because they generally are and ought to be Persons of more than ordinary Account, Estates, Understanding, &c.  
3. For the Extent of their Office or Duty, being Jurors for the King for the whole Body of that County for which they serve; And have power to Present all offences whatsoever committed therein, That are against the Kings Peace, Crown and Dignity.  Gr. Jury-man. 
Well then, The Grand Jury is the Great Spring, or Primum Mobile of the Court, that gives motion to all the other Wheels in Prosecutions Criminal, Their Presentment being the Key that either opens or shuts the proceedings of the Court in every Offence.  Barr. 
You take it right, and therefore the Law provides, That they be probi& legales Homines, good and lawful Men.  
1. Each of them must be probus( quasi probatus) an approved honest Man, faithful and skilful.  
2. He must be Legalis too, a lawful Person, that is not outlawed, of good famed and Credit, No Alien, but a Leige-Subject of England; For the Free People of England by Law can only be Presented and tried per Pares by their Equals and fellow-Subjects.  Gr. Jury-man. 
I perceive then the Law Reposes a great Trust in a Grand-Jury for the discovery of Offences, and that in their hands the Reputation and Peace of their Neighbours and fellow-subjects does much Consist. Therefore to understand their Duty the better, I desire you to recite unto me the Oath that is usually administered unto them.  Barr. 
Very opportunely thought on, I was Just coming to it; Here it is, red it yourself deliberately.  

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 Kings Counsel, your Fellows, and your own, you shall well and truly keep secret. You shall Present nothing for Malice, or Evil Will that 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 but the Truth, according to your best skill and knowledge; So help you God.   Gr. Jury-man. 
But I would gladly hear the particulars of this Oath a little explained.  Barr. 
Observe then its several Branches.  
1. You shall diligently Inquire and true Presentment make; Hereby they are obliged to inquire, and that diligently, not to be slothful, or negligent, not to take things upon Trust, or hurry them over carelessly; but to proceed on a mature and strict Examination, and then to make true Presentment.  
2. Of all such things and matters as shall be given you in Charge, or shall come to your knowledge. Here is laid down the Subject-matter of their Inquiry. By Matters and Things, must be understood, All offences against the Law by them Inquirable of, As Treasons, Murders, Felonies, Perjuries, Forgeries, Misdemeanours, &c. Which are commonly summed up to them in the Speech[ or Charge] of the Judge. All and every such offences which either they know of their own knowledge, or which shall appear to them by the Testimonies of others, they are to Present.  
3. The Kings Counsel, your Fellows, and your own, you shall well and truly keep secret. By the Kings Counsel ( I conceive) is to be understood, the Evidence of Witnesses that shall be produced to them on the Kings behalf; This must not be Revealed or Discovered by the Grand Jurors, but kept secret from the Person concerned, his Friends and all others, the Reason whereof seems to be this; Their Presentment is but of the Nature of an Accusation, or Charge. Now if they, having heard and Examined the Witnesses should divulge the Particulars, and wherein the Force of the Evidence lies; Then might the Party prosecuted( perhaps a Traitor, Muderer or fellow) take an opportunity to Fly from Justice;( For many times the Criminal is not apprehended, or is out upon Bail till after the Bill found by the Grand Inquest,) or at least there might thereupon be some Tampering or Indirect practices used to take off, or Sweeten the Evidence when it comes to be tried by the Petty Jury.  
Nor are they to discover what any one or more amongst themselves have together counselled, advised, or debated in the Business before them. Because the same might discourage particular Members of such Juries from giving freely their Opinions in discharge of their Consciences, and render them liable to Malice, Reflections, &c. And therefore if a Jury be agreed, and the Court perhaps not pleased with their Verdict, should take upon them to ask, Which of the Jury-men were first or most earnest for finding it thus or thus? I conceive the same and all other Inquiries of that kind to be utterly unlawful; That the Jurors are not bound by Law to answer thereunto, but obliged by their Oath to the contrary.  
4. You shall Present nothing for malice &c. Having set forth what they are to do, the Oath next prescribes with what Integrity and Impartiality they are to do it, excluding all Malice and Revenge on the one hand, and all Favour and Affection on the other.  
5. But in all things you shall Present the Truth, the whole Truth, and nothing but the Truth. The Truth; that is, Truth sufficient to make a just Accusation against a nocent Person. The whole Truth; not concealing wilfully any Crime that appears to them. And nothing but the Truth; That is, no known falsity, no false Accusation against any Person must be Presented, to bring an Innocent Person into disgrace and Jeopardy, so as to force him to take a trial where it does not appear, That he hath committed any Crime, or where there is not any sufficient Accusation, or where the Fact charged ( If in itself Criminal) is yet not so fixed upon him by any probable Evidence, as deservedly to expose him to a trial for it.  Grand-Jury-man. 
But since the Grand-Jurors are thus sworn to present Truth, and nothing but the Truth; And yet Experience shows, That very frequently the Party prosecuted is really not Guilty, and so found by the Petty Jury, though the former have presented the Indictment against him to be Billa Vera, a True Bill, I dernand how these Oaths of the Two can consist together, and with a safe Conscience?  Barrister. 
Though there may seem( primâ fancy on first thoughts) some Contradiction between the two Verdicts, yet really there is none; But both may be true in their several proper Respects, and safely, that is, honestly given. I may( for certain weighty Reasons and Proofs that I have considered) verily believe, That A. B. is Guilty of such a Murder or Robbery, and therefore for the Execution of Justice( that Glory and Safety of a Kingdom) I may swear that I believe so, and judge it my Duty to Present him, That he may be Legally tried for such Crime; And yet It may be possible that he is all this while Innocent, And perhaps when I come to hear his Defence, I may think so too; Yet have I not herein done him, or my own Conscience any wrong.  
The Grand Jurors work, I  told you, is no more in its own Nature, than to Present Offences which they find fit for a trial. They hear only one side, viz. The witnesses against the Prisoner, and do not, nay cannot, hear any thing in his Defence; Nor to Confront or weaken the Evidence brought against him, and so cannot be intended to give in more than a verisimilary or probable Charge; which by what they have heard, they do aver upon their Oaths, does seem to them to be Just and true, and fit for Justice to take Cognizance of. And therefore by their Oath you see, they are obliged to make true Presentments concerning this present service[ that is, according as the nature of their present Service in the Capacity of a Grand Jury requires] and also their Oath in the End is qualified, [ According to their best skill and knowledge] which denotes not an absolute Certainty, but so as things appear.  
And for the same Reason it is, That in the Record, The Grand Juries finding a Bill is Entred Juratores pro domino Rege praesentant, The Jurors for our Lord the King do PRESENT;[ that is, Inform, Charge or by way of Accusation on Just and Reasonable Grounds urge and put to Answer] But the Verdict of the Petty Jury is Recorded thus, Juratores dicunt, The Jurors positively SAY or Affirm. And when afterwards on trial any man is Acquitted or Convicted, The Record runs thus, The Jurors say, That A. B. is Guilty[ or not Guilty] of the Felony aforesaid in the Indictment aforesaid specified, which Ei superius imponitur, is above laid or charged upon him in manner and form as by the Indictment aforesaid, superius versus eum supponitur, Is above against him supposed. So that you see here, the Law itself Construes the Bill found by the Grand Jury to be only a laying on, or probable Charging of a Crime, and speaks of it but as a supposition; so that by Billa vera, can only be understood a Bill that appears to have Truth in it, necessary to be tried, and fit for the Enquiry of another Jury; The Adjective, Vera, in this place not so strictly signifying True, as meet, fit, or reasonable; And so 'tis used sometimes by Authors, as verum est in Terence, which Grammarians render, it is fit, or you speak Reason.  
And therefore on the other side, they never endorse upon those Bills they do not find[ Billa Falsa, that is, a false Bill,] but modestly writ, Ignoramus, which signifies, 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 further Inquiry, or to put the party on any trial.  Grand Jury-man. 
If this be all, it seems Grand Jurors need not much scruple the finding of most Bills brought before them.  Barrister. 
Not too fast, you have heard by their Oath they are diligently to Inquire; And these words, Truth and nothing but the Truth, have great weight and Obligation. They must therefore have some knowledge or good probable proof on Oath, on which they verily believe the matter deserving trial, and the Party Guilty, or else they cannot in Conscience Endorse a Billa vera. For if they should do it without such just and lawful Inducements, they apparently violate their Oath, and withall are highly Guilty of Injustice towards their Neighbour in preferring a causeless Accusation against him, whereby his Credit is impaired, his Life Liberty or Estate exposed unnecessarily to the hazard, trouble, and charge of a trial, &c. Wherein if by any Ill practise with, or the Ignorance of the Petty Jury, he should be Convicted( when Innocent) though such Petty Jury would be most Immediately concerned, yet the Grand Jurors too cannot be Excused from a sad share in the Guilt of the Blood, or ruin of such an Innocent Person and his Family; For, Qui non prohibet cum potest, jubet, He that doth not hinder Injustice when it lies in his Power, Commits it; And it was by reason of their inconsiderate groundless Presentment, and finding Billa vera where they had no Just Cause so to do, that occasioned the mischief; For without That, it could never have happened.  Grand-Jury-man. 
You have very well satisfied me in these Particulars; But suppose a Bill should be brought before the Grand-Jury, wherein a man is accused for doing some Act that is in itself no Crime; Only in the Indictment it is called Treason, Sedition, or misdemeanour, and said to be done falsely and maliciously, with an Intent to raise Sedition, bring the Government into Contempt, &c. Now if it happen that the particular and Naked Fact be proved, But that the same is Treason, Sedition or Misdemeanour is not declared by any Law, nor yet does it appear by any proof that it was done with any such ill mind, or criminal Intention, what must the Grand Jury do in this Case?  Barrister. 
If the matter charged be( as you put it) no Crime in itself by Law, then though it be never so much branded with such aggravating terms, yet since the same do in no kind appear to the Jury to be deserved, they must undoubtedly return an Ignoramus; For you have heard, That their work and the main Scope of their Oath, is to Present such matters as appear to them fit for Justice to take Cognizance of; But where they are satisfied, that there is no such Crime, if they should Endorse a Billa vera, and so put a person, whom in their Consciences they think Innocent,( because nothing appears to them to the contrary,) to the hazard, charge and trouble of a trial, It were a plain violation of their Oath, and unjust as aforesaid.  Grand-Jury-man. 
But this were for them to take upon themselves the knowledge of the Law; Now I have heard people say, Juries are only to Judge of matter of Fact.  Barrister. 
Jurors are to consider both Law and Fact, or else they will never deliver just and lawful Verdicts. To what purpose does the Law provide, that Jurors should be so well qualified as to Estate, Understanding, and Sufficiency; And so strictly sworn, but only to detect Offenders, and preserve the Innocent from needless vexation and trouble? How far Juries are Judges of Law as well as of Fact, is pretty well set forth in a small treatise lately published, entitled, The Englishmans Right, To which( as well worth every true Englishmans Reading) I refer you for further Information. Only to satisfy you at present, I shall desire you but to consider of the sad Consequences that would follow, this conceit, That Juries must necessary find every Indictment where the bare matter of Fact( be it what it will) is proved, without enquiring into, and weighing the Nature of that Fact, or retorning Ignoramus where they find the same Not Criminal.  
Suppose a Bill were exhibited against A. B. for Treason, for looking on the Tombs at Westminster, or of high Misdemeanour for taking a Pipe of Tobacco, falsely wickedly and maliciously, with an Intent to Infect the Air, and destroy his Majesties Leige-Subjects with pernicious vapours; And it were very fully proved, That he indeed looked upon the Royal Tombs, or did whiff the Pipe; but nothing of any such design of poisoning the People thereby, appears in Proof; Now would you, or any Grand-Jury-man that wears five Senses and a Soul about him, return a Billa vera on these Indictments? And yet here the matter of Fact is proved, and by these mens unreasonable Reasonings you should be bound to find it.  
Again, Imagine an Indictment brought against a Person setting forth, That he falsely and maliciously and with an Intent to create and foment Rebellion, Sedition, Divisions and Distractions amongst the People of England, did cause to be printed and Published in the English Tongue, a certain Book called, The BIBLE; And it be proved by an Hundred and Fifty Witnesses, that he did indeed Print and publish the Holy Book, yet would not you rather have your hand Rot off, than with it to Subscribe Billa vera here? But if this opinion were true, you should be bound to do it, or else be Clamour'd and hectored at, as if you were Guilty of the blackest Perjury.  
Nor is this any Extravagant Supposal, If( which God forbid) Popery should prevail amongst us; For us not above 150 years since, a poor honest Bookseller was burnt to death at Avignion in France, for no other Crime but selling Bibles in French; and to denote his Crime, two Bibles were sixth about his Neck, and burnt with him,[ See Foxes Acts and Monuments, fol. 861.] And here in England K.H. the 8th. on the 8th of July 1546. Issued a Proclamation requiring all English New Testaments to be brought in by such a day to the Constables in every Precinct, and so to the Sheriff to be Burnt; And that if after such day, any Person should be found to have any such Testament, or any part thereof in his Custody, he should not only suffer Imprisonment and punishment of his body at the Kings Will and Pleasure, but also be Fined at the discretion of any 4 of his Majesties Council.  Grand-Jury-man. 
God defend us from such times. But I pray let us return to our Discourse; I have observed, That in Indictments, Informations, &c. There are certain words used which are seldom proved; As Vi& Armis, Contra pacem, false, malitiose, &c. With Force and arms against the Peace, falsely, maliciously, and the like; Pray therefore Inform me, Is it a sufficient Cause not to find a Bill, If the Jury have not Proof of These?  Barrister. 
Here lies the Knot, the pinch of the Business, which rightly understood, would silence this controversy for ever. You must note therefore, that sometimes these words are only of Course, or matter of Form, raised by a Just and reasonable Implication of Law; but sometimes they may be thrust in to raise a pretence or colour of Crime, where there is really none.  
The Distinction therefore to be observed, is this; Where the Act, or matter of Fact charged, is in itself a Crime or offence against Law, there the Law does necessary in Pleadings require and Imply those words; and If the Jury do find and are satisfied, That the substance of the Charge is such a Crime, and the Person guilty thereof, They are bound to find it, though no direct proof be made of those Circumstantials.  
But where the Act, or matter of Fact is in itself I mocent or Indifferent, there the purport of these words is necessary to be proved, for else there is no Crime, and consequently no fit matter to be put to a trial; In which Case the Grand Jury is bound in Conscience and Law to return an Ignoramus; and a Petty Jury, Not Guilty.  
For though some Gentlemen of the long rob are pleased to call these words only, Pepper and Vinegar, harmless sauce; yet if merely for them, a Jury should pronounce a Billa vera or a Guilty, where the main dish is good and wholesome, they would become rank poison, and destroy all the Vital Liberties of the Nation.  Gr. Jury-man. 
What then may be the design, That yet some People pled a Necessity of the Juries finding all Bills, however worded or aggravated, where the matter of Fact( as they call it) is proved?  Barrister. 
I do not care whether there be any such People, or any such design. But this I know, That in the 11th year of K. Henry the 7th there was an Act of Parliament obtained on very specious Pretences, That Justices of Assize, and of the Peace should have full Power or Information for the King, without any Presentment of a Grand Jury, or trial by a Petty Jury, To hear and determine at their Discretion, all offences &c. By pretext of which Law( saith the Learned Lord Cook, 4 part Institutes, fol. 41.) Empson and Dudley( Two Judges, or Justices, for the latter is the Legal Title) and their followers, did commit upon the Subject unsufferable Pressures and Oppressions. And thereby brought infinite Treasures to the Kings Coffers, whereof the King himself( saith the same Reverend Author) in the end repented with great Grief and Compunction; And the Statute was repealed, and the said False Justices, notwithstanding such their pretended Authority,( even of an Act of Parliament, yet the same being against Magna Charta and the Fundamental Laws of the Land) were both fairly Beheaded, and no less than Seven of their little Instruments, Promoters, Informers, or what you please to call them, viz. Canby, page., Smith, Derby, Wight, Sympson and Stockton, were set on the Pillory, and afterwards ordered to ride through London-Streets with their Faces towards the Horse Tail. With the same whereof the Rogues within 7 days after all dyed in Newgate. See Baker's Chronicle, fol. 254.  
Now if there should be any such Design as you talk of,( which I neither know, nor can believe) It must be to do the same thing in Effect by Colour of the Common-Law, which these Villains Empson and Dudley did by Pretence of a Statute-Law; For what real Difference is there between getting an Information or Indictment drawn by order of certain Justices against a Person, and Condemning and Fining him at their pleasure without any Jury at all,( which was the Empson and Dudley-way.) And causing and Indictment or Information stuffed with hideous terms on an innocent indifferent matter of Fact, to be Presented to two Juries successively; but withall telling them, they are bound not to consider whether such matter of Fact be indeed any Legal Crime, And so Trepanning( for I can call it no better, whether it be done by Wheadling or Menacing and huffing,) the said Juries, to find the Party Guilty; When in their own Consciences they do not believe he has committed any such Crime. And then shall come the said Justices, and upon such his Conviction, Sentence him to be hanged, or to stand in the Pillory, or be Fined so many Hundred Pounds( much more perhaps than the poor Creature is worth; so that it amounts to an Imprisonment from which only Death can Bail him:) And all this for that which is no real Breach of any Law either of God or his Native country.  Grand-Jury-man. 
This indeed were the grossest Injustice, the most horrid scandal that would be cast on the Laws of England, which have been ever Celebrated for the most Equal, Just, and Merciful in the World; and so much worse than the practise of Empson and Dudley, because by this means, JURIES would be made use of as Stales and Properties of oppression. But it is not to be supposed, That any Justices should offer, or suffer any such Indictments or Informations to be offered, to any Juries, or attempt to persuade Juries to find them, where the matter thereof is not warranted by Law.  Barrister. 
I know not what you can suppose, nor do I complain, That any such thing has been attempted, much less do I speak to disconrage any Just Prosecutions of real Crimes and misdemeanours; But I must tell you, That there are very wise men that suppose such things as we have been talking of, may possibly fall out, at least in another Age; For we are not Assured, That in all Generations there shall never be any Ill men put into Office; There may one day perhaps happen a little peevish Justice, or a blustering Magistrate in some Village or other, that may be no mighty Witch at Law, and so ignorantly may promote odd fantastic Indictments; or may be a Creature of Ambition, and so willing to serve a Turn for Preferment, and may Endeavour to Hector Juries out of their Rights and their Wits, or a thousand other Accidents. And therefore why should it be left upon a fallible supposal, a mere Hap-hazard, or why must Ill Precedents be given? The Institution and very End of Juries is to preserve our Liberties from the wily Encroachments of oppression; And therefore 'tis the Right and privilege; nay I will add, 'tis the indispensible Duty of Grand and other Juries, to Act like men of judgement, Conscience and Courage in such Cases. For otherwise they Forswear themselves, grievously injure their Fellow-Subjects, betray the freedoms of their country, and open a gap for Slavery even in that very Hedge, which was purposely first planted, and has time out of mind been so carefully preserved by our Ancestors, to keep it out.  Grand Jury-man. 
Well, but if Juries do not give their Verdicts as the Court think fit, though the Jurors proceed uprightly according to the best of their Understanding and Consciences, yet may not the Court Fine or Imprison them.  Barrister. 
No The Law utterly Condemns any such practise, as you may see undeniably proved in the before mentioned Treatise, called, The English man's Right, p. 24. Nay, if any should presume to Menace or Reproach a Jury for giving their Verdict uprightly according to their Cousciences, It would be an High misdemeanour; and such Insolence ought to be Corrected with Exemplary punishment.  Grand Jury-man. 
Since Juries are so essential to our English Liberties, and of so great Use to the Nation, Is it not great Pitty, That men best qualified both for Estates and Understandings for that Service, should oft-times use little under-hand practices or small Bribes to the Officer that Summons them, to avoid it.  Barr. 
'tis both a pitty and a shane if any such thing be done, and ought likewise to be punished; For thereby Persons every way unfit may at last come to serve turn, and so Verdicts may become mercenary, and People set up to make a Trade of being Jury-men; Whereas 'tis an Office that the best Commoner in England, is neither too good nor too great to serve his King and country in; Which I wish all Gentlemen would Consider, and readily dispose themselves to accept the same, when ever they shall legally be called unto it.  Gr. Jury-man. 
I thank you, Sir hearty for the Information and good Advice you have given me in this matter, and shall Endeavour to discharge my Duty accordingly, As becomes a Christian, a Loyal Subject, and an upright Protestant Englishman.  
FINIS.