'..^i^^mi^ «B^e!F. AJ -" // •i*-^' COLLECTION OF PURITAN AND ENGLISH THEOLOGICAL LITERATURE I LIBRARY OF THE THEOLOGICAL SEMINARY PRINCETON, NEW JERSEY \\.. ■Ajc.> '• . y .,/■: '. " \ > ..s Decemb.6. i6y6. I do allow the Printing of this Book. Fra, North, IN Cafes of Blood* Ailerting from LAW and REASON THAT In all Cafes ( where a Perfon by Law is to be Indiifled for killing another Perfon) thd Iridianient ought to be for Murthetj where the Evidence is that the Party in- tended to be Indi£^ed^ had his Hands in Blood, and did kill the other Perfon. • By ZACHARY'^ABINGTON Efq,- late Ajfociate in the Oxfotd Circuit, ^li^z ^econti (SdAtm^ GEN. IX* 6. Q^tkunqne effuderit humAmm fangumm^ftmittur fanguis iHiufy adimagtnem quippe Dei creatus eft homo, NUM. XXXV. 35. Nee aliter expiari potefl, nifi per ejus [angmnem qui al- terius fanguinem effuderit, LoNDONy Printed for John Amery at tht Peacock,^' gainft Sc. Dunflans Church in Fleet-flreet, 1692, THE AUTHOR TO THE Reader E that reads the enfuing TraB ^ -juHl foon pnd that much of the beginning of It ts by way of Inr trodu£lion to the Subjeii-matter 4 1 of g^ the Book , and wight well Qf not better } have fajl tinder the Title of A Preface, and there-' fore might have excufed this : in which I Jljall endeavour to jhew the Grounds and Reafons that flit me p.fon this Argument ; an^ fwering all OtjeBions that may he made againji the Author , for being a Sanguinary Terfon^ in treating fo fojitively upon this Subjea; ffjew the necefftiy of de^ termining the Law herein^ in foint of fraBice by Grand Ju- rors /;/ Lafes of Bloody give fome fatuf action to [uch as may ob* jeEi agamfl the length of it , rjvhereas the Que fi ion is fojhort; explain the Grand Jurors Oath; and laflly , endeavour to remove all T)iffculties made by them uf- on the f aid Oath. Two Reafons principally mo- ved me to this Undertakings The one was^ The great Contefls and Differences I have too of- ten observed between the Judges md Grand Jurors about finding of Bills in Cafes of Blood ^ whereby the whole matter of Fa6l , with aU its Circumjiances^ might receive its full difquijitt- on in Courts and not in a Grand Juries Chamber ; the Grand Ju- rors ( as if they were fudges both of the Law and the FaSi , which is fufficiently demonftra- ted in the enfuing T)ifcourfe they are of neither ) finding the In- diBment Sometimes Manflaughter^ when they Jhotild find it Mur- ther ^ contrary to the fenfe and direction of the Learned Judge^ and of the Kin^ s Council , whem- by a Mtihherer many times e^ fcapes. The fecond Reafon was , That if the Law wire not determine ed in this pointy betwixt the Judges and Grand Jurors , the Conjequence mtift needs be , That Grand Jurors ( that hear but one Jide^ would in the end take the matter of FaB from the Second yuyy , that are prober Judges of ft ^ andjlmild try it; and the jf 4 mat^ ter of Law from the Learned ' Jucke y that floould give the Judgment of Law u^on it ; and \hi6 is fo jplainly proved in the enfuivg J)i[cour[e , and hath been fo often in pratiice , that I know, nothing can be faid againjl it. T er adventure fome mayfay^SuYQ he that wrote this Book is Fir Sangimiis , that defires fuch fe- yere Juflice againft every man that kills another man unlaw- fully , that he muft be Indided of Murther. Certainly this is a very great miftake , which a confiderate Reader^ or one that delights not in frilling of Bloody cannot be guilty of; here is no more defired or intended^ but that every Terfon that hath had 'his Hands in hinocent Blood y receive a full and a legal Tri*: al ^ according to the Laws of the Land , and the Liberty of a Subje£fy to be tried at the King's Suit, And 1 know no Kingdom or Nation in the World ^ whofe Siihjetis have a fairer^ more im- partial.^ m to tfie J&tmtu partial y and indifferent Trial '^in fach Cafes , than the Subjects of England have -^ who ^ except Q as 1 have fhewed } they be^ come their own Accufers ^ muft he accused hy a Grand Jury, and conviBed or acquitted by another ^ and afterwards ([ tf guilty^ receive Judgment front ^a Learned and Merciful Judge^ according to the Law of the Land, I know by the Law of God ^ amongft the Jews there was a certain Infitutiony which we call Lex Talionis , An Eye for an Eye, a Tooth for a Tooth, Life for Life; and that there were Modifications and Qualifi^ cations y to abate the extremity of it , in fever al Cafes to be coH'- jldered^ as I have jhe wed there y is by the Laws of England ver ry jparallel to them : This is fo far from being Sanguinary ^ that I conceive it would rather prove a Remedy , than a Mif^ chief ^ rather prevent fuedding of Bloody than occajign it^ ra^ ther ther be Lex Praevcniens , than Puniens. And certainly^ who- ever oj^pofeth this Opinion , and propojeth a milder and lighter way cf Trial again ft one that hath had his Hands in the Blood of his Fellow Creature^ will hard- ly him[elf avoid the Imputati" 0% of a Sanguinary 'Ferfon. TJjis way propojed , will prevent that evil pra^ice ( too much u- fed^ of labouring and packing Grand Jurors , /// point of fa- 'uour , when they are affured be- fore ^ that all Accufat ions ^by Grand Jurors, for the unlawful kil- ling of a Reasonable Creature ^ tnuft he Murther. It would con- duce very much to the difpatch of the Bujinefs in Court. ^ and be a great eaje to Grand Jurors, that now fpend very much un- fieceffary time in Qiiefiions about the Law , in fuch Cafes , which were better {pent in examining the Faci ^ and leavingthe matter of Law to the Court. Con- I totfieEeaiiet. Concerning the necejfityof thU point to he determined ^ he is a Stranger to the EngUjh Laws , and to the Englijh Nation , that over-looks the juft and pro-- fit able Consequence thereof '^ there being nothing in this enduing TraB ajferted^ but what is a^ greeable Q as I conceive ) to the Statute^ and Common Laws cf this Kingdom y the beft aU lowed Traaice , and the Opinio ons of aU the Learned Judges , ( at whofe Feet I have had the haj^finej^ to Jit many years , both before the late Civil War s^ and fine e the hapfy Reflduration of our mo ft Gracious Soveraign) and agreeable to found Reafon , the fullefl and be ft \Difquifition after Innocent Elood^ And who can but allow the necejfity of it , as to the Englijh Nation at frefenty when ^uels are fo frequent Dufllum , quafi duo* in England / it being '"'" '^'''"- . made matter of Tri^ Bone without Juthortiyy, um^h for one Hedlor ^^^^^'^^^'»^'^^«f^or/t> (as That which the Vi- ^or- thinks to be his honour , proves his dif- honour. His Life, his Lands , and Goods , are by Law forfeited, and his Blood corrupted. Infaelix ' pugna , ubi majus pericnium incum- fcit viftori quam vifto. Q as they call him ) to kill ano^ they J if it be but for not fledg- ing a Health , or Something that looks like an Affront to his Mifs , in placing her at a Ball , in a Tlay- houfe , the Tavern , or the hke; and this mufl not only engage the two . differing Parties Cal^ though Terfons of Qua-^ lity) to facrifice their own Lives , and fome* times two. Seconds ^ or morefPeyfons of as equal quali- ty ^ to lofe their Lives in the Confim , or by the Law , ( if 1)eath enfue to any of them } in which Contejl they are no more concerned ^ than to fecond their Friend , and with their own lives to jufiifie the Quar^ rel between the two differing Tarties , as if both of them had a good Caufe , and were in the right y when as fometimes the ,Occqfion is fo trivial ^ not fit for two Boys to diffute. As to tge Eeatiet^ As to what may be Ol?je£ied to the length of this Trail ^ I have only this to fqy^ That it is no more than I have accufed my p If for , and did endeavour to have aifira6ied and omitted much of it ; iut when 1 began to do it ^ I was overcome by thefe Considerations^ That it was . the fr^ EJfay of this kind that had been written as a Book ; That it was not like to meet with (M Readers of like Capacities i fome perhaps might gather much out of a tittle y whereas others . would gather but a little out of much , and the whole not of ma* ' ny hours readings which might be worfe (pent , and therefore was willing to leave it ^ as I had fir ft framed it , althot^h I ex^ofed my [elf to be cenfuredfor it. And because Grand Jurors fut jo great an Obligation upon the Oath they take as Grand Jurors^ and from that ( as they con^ aive ) frame fo firong an Obje^ iiion if ion y That they are [worn to frefent all fuch things and maU ters as jhall be given them in charge ; and that the fudges tt^ fual^ y in their charges , dilate and declare the Law , as to all the Several Species and ^Degrees of Murther , Manflaughter , ^c. what every unlawful killing of a man k m Law y according to the Several Circumftances of the Fa£} : and therefore they , as Grand Jurors, are bound by their Oath to obferve the Circumffan" ces of every Fa£f before them , what it is in Law as well as in Fa5t y and fo prefent to the Court both the Law and the FaB ( Judiceinconfulio). This being the greateft Objection that I have heard from any of them againfl what is here Averted \ although fomething is [aid ^ as to this Obje£iiony in the en fif- ing T>ifcourfe , I /hall here add fomethiJig more , to clear the point y and anjwer fully that Obje£iion^ by jetting down the Oath Oath of a Grand Juror , in ter- minis, as alfo the Oath of a TuroF of Life and T)eath , and ,. ^ . ^ explain them both : t You ihaU di- \t,ni%l Jigently inquire , and true pre- fentment make of all fuch things and matters as fliall be given you in charge , or ihall come to your knowledge , concerning this prefent Service. The King's Counfel , your Fellows , and your own , you ihall well and truly keepfecret. You fliall pre- fent nothing for malice, or evil will you bear to any perfon; neither ihall you leave any thing unprefented for love, favour, a& fecftion, reward, or any hopes thereof I but in all things that iliall concern this prefent Ser« vice , you ihall prefent the truth, the whole truth, and nothing elfe but the truth : So help you God* In the fir ft place you fee by the Oath^ they are fworn to be di-- ligent in their Inquiry^ nottdbe fhathful or negligent \ being qtiickned by their Oath : thisdi* Ugenci Cfje autfioi Ugence is to be exercised in an Inquiry , and this -Inquiry is to be made amongfl themselves ^ in what they know of their own knowledge^ or fljall be brought unto them by the Teffimony of others. As to the matter of their Inquiry , which next fol^ lows in the Oath , and from which they frame their main ObjeEiion , (viz. ) all fuch things and matters as iliall be given them in charge : thefe words are general ( things and matters) and certainly , in the clear eft Under-^ fianding , are intended the gene* ral Heads of all Offences by them Inquirable ; As all Murthers^and that comprehends all manner of mlawful killing : All Felonies y and that comprehends all man- ner of ftealingi and fo of other general Heads cf Offences here Inquirable y as Perjuries ^ For- geries , Mifdemeanonrs , ^c aU though the Learned Judge (where he hath time and lei fur e ) doth in his Charge^ when he fp-eaks 4 tot&eEeatiec. f" eah op Murther , declare thi veral Species mid ^differences in that Offence by Law ,• and fo of Felony ^ the fever al manners of Felonies , (im^le andcomfoundi Jnd fo of other Offences , the words of the Oath fo much infifted upon by them do no way oblige them by reafon of fuch a Charge^ to determine (^ by their frefentment ) every nicety in Law i that may arife uPon every Fa£i before them^ others tvije than in that form and mat-^ Ur (^according to the nature of the Cafe ) the Court, and the^ "King^s Council have framed and frejented it to their Inquiry^ where the fingle FaB of unlaws ^ful killing another ^ ®r. by the ^^hands of fuch a one ^ is proved ij^nto them fo far ^ as in their Judgments it is fit matter of Accufation^ to brin^ the whole ' matttr of FaB ^ and all thai way depend upon it y to d far- ther and more full examination ^^as is mori fully mdnifefed tU M thi the enjtiifig dt[cour[e } for JJjould the Judge only give them general heads ^Offences in charge (^as he well may J and many times doth') without dzfiinguijhing the fever al kinds of them , the Grand Jurors would then want a ground for this Oi?je6tion; be fides I have ever taken it , that not only that which is orally delivered unto them by the Judge , but that alfo that is delivered unto them from the Judge in writing , to he by them enquired of ^ is fart of their charge^ and that is every IndiA-^ ment that is frefented unto them^ or other matter in Writing com- mended by the Court to their En-" quiry. ^ The Juft ices inEyre^ that for -^ merly were Itinerant over the Kingdom (^in whofe rooms thefe Learned Judges jucceed) ever giving their charge , and what' ever was enquir able by theQx^xA Jurors in writing ,• which if fo iinderfiood (as 1 'know not how it will be avoided^ they are then by totlieEeatJet. iy their Oath , to prefent all fucB things as Jhall be given them in charge ^ and [o every IndiBment of Murther delivered by the Court unto them^ is to be found by them^ where (as hath been often faid^ the unlawful killing is Jo far proved unto them as to make up an Accufation, Then it follows in the Oath [The Kings Coimfel, their Fellows, and their own they fliall keep fecret ;'] By the Kings Counfel , is to he underfiood any direHions the Judge fhall in Court give unto them in any matter be^ foreythem; as alfo the Evidence of Witnejfes , that Jhall be fro-^ meed to them on the K,ings be'^ half in any faU (for no other Wttneffes muft be heard by them) and likewife fuch Counsellors learned in the Law as jhall ma^ nage the fnatter on the Kings be- half (for no other Council is to be heard by them againft the Bilf) none of this muft be revealed or discovered by the Grand Jurors^ but faithfully kept fecret accord'- B t im C6c aut!jo2 ^ing to their Oath from the fartjf[ cone er fie d^ his friends ^ and all others ^ except the Court demand any que f ton from them upon their Evidence \ Jo likewife mti(l they keep their Fellow Jurors Counfel, and their own^that is^ they are not to difcover what any one of thern^ [elves have together counfelled\ advtfed^ or debated^ in the bufinefi before them againft [itch a perfon. They are the Kings great Council upon this account , and all fuch great Councils where the King is fomuch concerned ^ take an Oath of Secrecy , for otherwife by re» vealing fuch Counfels , a Traytor^ a Miirtherer ^ and the great eft Felon may efcape ^ to the endan^ gering of King and Kingdom ; and this offence in ancient time washoldenfor Treafon or Felony. Sftimf.foi.3<^. /;^GeorgeV Cafe in Anno zj. lib. ^7.1ib.Aff. Aff. upon his Ind i^ me nt was ac- quitted; but the Lo. Coke in his third Inftitutes fol. loj.Jays^ Cer- tain it is , that fuch difcovery is accompanied with Perjury , and a . great totljeEeaoct. great Mifprifion to be puniihed by Fine and Imprifonment. And it is well ;^rovtded by the Oath^that each Juror is [worn to kee^ his ownCounfelalfo ; for he that "will not keep his own [ecretSy will ^hardly ieep another s. So much for the matter of the JQathy what- they are to do-^' It follows in the Oath ^ with what Integrity they ought to do their duty , They are to prefent no perfon for any offence , through any malice they have to the perfon, nor omit any meerly for any favour they have for the per- fon : This u JO plain , it needs nothing but practice ; thefe two feem very eafie ^ but indeed are very difficult to flefh and bloody Not to take revenge when one hath power to do it , and not to fhew favour when there is power and oj^oriunity to exprefS it; not but that a Grand Juror may prefent another he u at differ ence withal , if there be a real and true caufefor it , but it mufl not B 3 be he done from malice , and by way of revenge , in frejenting juch a per (on , before another as guilty. Malice and Favour ( two great enemies tojufiict^ are to be ex^ eluded all Courts of Juftice ^ as too partial ; and therefore the Oath well concludes , That they fhall prefent the truth , th^ whole truth, and nothing but the truth: aH thefe three expreffwns of truth have relation to thefaB of Mur- ther , or unlawful killing Qfor I JhaUinthis -place apply it to that Offence } in a legal fenfe , as to legal proceedings ; The truth, that is , Truth fufficient to make an accusation againft a nocent per- fon ; The wh3e truth , not con* cealing any part of it wilfully^ but fo presenting it ^t hat the whole matter of faB concerning the un* ^lawful killing another may come in que fi ion to another Jury^ which cannot be unlefl it be found Muy^ ther 5 the Common Lardu accounU__ 'ing_all felonious and unlawful M^$ ^ reafonable Creatur^MuTr ther jthcr, until thtJJjference and ^- '^h^tjon^a^ear u}on the VerdiB ^^amth ejl^MS^hat are to try ^t^ and the Judgment of the Court in j^ointof^La^ upon that KerdTBT "'^Gb^rve the Note in the Margentj what that St a- Murdrum de csetcro non tUte fays : adjudicetur adjudicetur coram Jufti. ^^*.«^ t,,a:^:^« r^ fL^U ^^^'^^ ^^^ infortunium coram JultlCiar. DjMfL tantumir.odo adjudicatum h^d'judged by the jUdg- eft,fed locum habeatMur- es orJMm^TmtWe fir""? de interfeftis per - .^-^T^-^^ — _. V _-~~~^-- feloniam rantum , & non ^^^^^LJfeLJ J^JM^IL aliter. Smut, de Marli- ^Man^at^jter ;per Infor- ^^^^i^ 52 H.3.C.25. tunium ; Mdjtcan never^ ^^^^^^Jt^^ ^itL^^kdg^ljiL^^M ^^^en it ts tried before them^ whi ch ca nnot be M^on^an_IndiB^ is more fully obferved in the jol- lowing dijcourfe ; } Obferve like- wife what follows in that Sta- tute^ Sed locum habeat Murdrum de interfecStis per feloniam. So that by this Statute, all felonious killing is Murther ft ill , as it wa^r * at the Comn^on Law before , and that Sut^xtG is not ta be repealed by Grand Jurors. B 4 And And a^ there mufl not be in the Grand Jury, Suppreffio veri, a u^prejfton or leffemng of the truth^ "o there mufi not he Expreflio falfi, afalfe Acc^fation ; both are to be avoided^ and therefore it follows in the Oath^ And nothing but the truth, that is ^ no knownfaljity^no falfe Accusation againfi any ferfon muft be frefented^ whereby to bring an Innocent per [on to trial^ where there is nothing of the faB to be proved againfi htm , or any probable Accufation; if thefe three Truths, in this Oath mentioned^ are not to be under food in this legal [enfe , and according to the common praBiceof legal proceed" ivgs in thefe cafes ; Tmujl confeJS I am to he inftruBed how any Grand Juror {^ihat hears but one ^ , . fide') can fatpslie hk"^ Con- audSreTudSr''"^ fcience, that in a fain (jui judicat aiiqnidfparte literal and Grammdttcal inaudita altera) licet s- f^j^r ^^ ^^^ n^^^^ f^^ quum judicaret r»aud ^' ^^ -^ en r '^ i quusefi.7-ff Grand Jurors ^'^^ry 'rrejentment and takethemfehcstobijudiss IndiBmcnt that comcs 'i^^'^'^^ from the Grand Jury with r^»*^ totfieEeaiffc. 'mith a Billa vera , contains in t\ the truth , the wholl trUth , and nothing but the truth ,• and this is cleared By the laft words cf the Oathy [ According to their bdfl: u^/ k u^ vl* to/^ skill and knowledge| for thkmufi ^ (tj^Oed^^p>^j- ^ be anderfiood^ skill and know^ \^.^^U^, ledge in the Law and FaSt ^ as to the p'a^ice and nature of the proceedings of the Law in fuch cafes ^ for it is rather difcretio legis thanhominiSf j^nd thus have J, according to my ieft fenfe and under jianding cf the Oath^ explained it^ and an^ fwered the common ObjeBion to it ^ by making it apfe^r, that there is nothing in -the Oathih^it •any way obligeth them againfi what I have either here , or in the enfuing difcourfe , advifed them unto. And that this m£^ yet be more evident Qbecaufe I would make it as f lain as 1 can^ though with too many Taut&logies and Repetitions^ I Jhall aljo in terminis y^^ down the Oath of the ]mors of Life and T)eath^ by hy which it doth appear ^ thai they.oniy ftand charged with the Trifoner (as it is exprefl in the Oath^ and the Grand ^Mxw only (p^fj^ f*^f l/M^,y with the Accusation againft him ; \ [You fliall well and truly try, and true deliverance make between our Sovereign Lord the King and the Prifoner at the Bar ^whom you fhall have in Charge) and a true Verdicft give accords ing to your Evidence; So help you God.] Which is to be for- mally and legally drawn up in the nature of a ^declaration at Law at the Kings fuit^ the King being Tlaintiff and the Prifoner T)ejendant y which the Trifoner upon his Arraignment either con- fejfeth , and then he is conuiSied without hearing of any Evidence againfibimy or other wife pleads Not guilty /o /V , to which the King (by the Clerk of the Crow}i) joynslffiieby Cul prit, W^. that he is ready to prove him guilty ; and fo the Ijfue being thmjoyned^ Evidence for the King is given again fi tot&eEeatici;. againft him ufon Oath , to which he makes his defence in ferfon^ or by "^ Council (Jf any foint of Law a- rife to which he dejires Council y and the Court approve of it^ the Judge being as well of Council for the Trijoner as the King^ calls his Witnejfes (if he have any^ who fpeak upon their Credits ^ and not upon their Oaths y which is much for the advantage of the Trifoner ^ the Law frefuming (in favour of life') the Affirmative proof to be fo clear againft the ^ri- foner^ that nothing in the t Negative can be pro' ved Qipon Oath) againft it; and after a full trial of what can be faid and proved on both JideSy and a convenient time taken by the Jury to conjider of /Y, they bring in their VerdiSiy either convi£i him or acquit him ; either find him guilty amrdingto the IndiBment . -- , found ^ If he have Council, he tiiuft pray it bcfofej^e plead Not guilty^ he can- not after. 3. Jnji, fo/.i 2p. t And that is one rcafon why regularly he cannot have Council. The fecond reafon is, the Court ought to fee the Indifttiient, Trial, and other proceedings good in Law, left by an erro- neous Judgment they at- taint the prifoner. ^.inf^ foundry the Grand Jury by hear^ i ing of one fide , or ffeciaOy as ' ibey find the faB by hearing of hdth fides I for they are not bound firittly to the matter and form of the Indi£iment , as the Grand Jury have fotmdit , for they may by Law extenuate ttto the leajl degree of offence ^ that can be tn that kind^ but they cannot aggra- vate it ^ or exceed above what the Grand Jury have found ', for if they might do fo , they would become Accufers as well as Tryers^ which would be again ft the Laws and liberty of the 'SubjeB: And therefore /^d* Grand Jurors have the greater reajon^ to enlarge in their "Declaration or Accufation for the King (^ds in all Sedit ^cis is by indi^' Declarations at Law is ^^1^^^ ufuaf)asfarastheLaw T>idaratm, The Kfng Will heighten all ofences fbrm^iy did not pardon i^ ^Blood. Cmce the Other homiddium , hu^ Sectam ot ^ i r i i- pads noftr^qu^adnos .7^^JV ^^^^ ]0 mUch ll- pcrtinet de homicidiis. berty to leffen the dama- S.infi,fol,2^$. g^j ^ ^^^ extenuate the Crime y whatever the Accufation is. Now I ' Uq'V^ upon what I have wriu ten in this "Preface ^ and the Book^ I am not ignorant how much I have juhjeBed my [elf ad captum Ledloris , to the vari^ €iu.. cenfures of the fever al Rea^ ders ^ especially fuch as u[e to fer^ey or may ferve on Grand Jnries y Gentlemen I know of the hef quality next to the Teers iof the Realm , and in which Em- plcyment for their King andCoun- try it is an honour to (erve ; And I hope it will be no dijhonournor indignity to any of them to enters tainy or at leaf to perufe this Ad-^ vice y how they may with the greateft prudence and fidelity paf^ through an Enquiry after mno^ cent Bloodjhedy when they are called mtoit , and leave nothing therein (of this Crying Sin^ to he repented of y that it was not fully Enquired of by themj that Jo their exaB care and Juftice may hep themfelvss fecure from the gmlt of Innocent blood. €6c 9ut60i __^ I dou&t not but it "Will meet with (time Readers fo poffejjed with the contrary Opinion , by an erroneous fraStice or mifunder^' ftanding of the Laws , and of the Grand Jurors Oath^ that jo foon as they read the Title will caft away the Book and cry^ a Tara^ dox ; Others hafpily more un- biased in their Opnions , and of more moderation and ingenuity ( if they diflike^ will public kly tonfute it ^ with flronger argu^ ments and grounds of jLaw and Reafon^ and better experience in foiM of fra6fice , and fo deter- mine the point '^ and in that I JhaU have my end. I am very certain , that I en- tred not upon this SubjeSi with anqffenjive mind y but c^mmodt-' ramine inculpatse tutelae, not with a direct depgn to kill any ^ but rather to fright ^ weaken ^ and drive away that Dfiemon of Taf fion in man to commit Murther^ and to give the beft advice to Grand ^rors in Cafes of Blood. A [mall things oft times^ hath the fower to rearep a great Incon* venience^ yea^ to take u{ a cruel Feud; as V\rgil faith y of that of Bees when they are ^^uatty en^ gaged in battel^ Hi motus animorum atquc haec certamina tanta, Pulveris exigui jadxi compreffa quiefcent. A'DVICE ADVICE T O Grand Jurors — , — J I N Cafes of Blood: [T is the great happi* nefs, freedom, andli'* berty of the EngUJh Nation , that (in all common and ordinary Trials ) of offences Criminal and Capital, as Treafbns, Murthers, Felonies and Mifdemeanors, each Ff een^an (mi fo are all the people G of % at)i(ce to iSiniiB Jutojs oH England ^'xs to this) lliall receive his Trial ^^r pares ^ by his equals i which is well provided for by the great Charter of the Liberties of England^m thefe words ; No Free- manjifjall be taken^ or Imprifonedy or diffeifed of his Free hold ^ Liber' ties^ or Free-cufiomes^ nor be Out- lawedy banijhedy or in any manner deflroyed^c. hut by lawful Judg- ment of his Teers , or by the Law of the Land. This Chapter of Magna Chart a is partly repeated in (a;2^ E.3. 4. a later Statute, Qi) and there Law ^ffi^i ^f ^f^^ Landi^tx'^oVin^td [IndiSi- viuMotst. ment] procefs by Writ original,and Alban.143. courfe of the Law: Another Sta- tute recites it , and inftead of the words Law of the Land^ puts in Procefs of the Law, as equivalent and<5>'//o///w(9^,rignifying the fame thing. And again, a Statute of (b)57E.3.i8. thatKing fays, (f)No man JhaU answer without Trefentrnent be^ fore the Jufiices^or matter of Re- cord ^ or by due TroceJS and TVrit crii^mal^ according to the old Law gSdia. of 'the Land, (0 as it is wellob- 1^6, ■ ferved mcafeisof OBIaoB. j ferved by the Lo. Cook ( that Ora^ cle of the Law } In fleas of the Cfown , and other Common offen-^ ces andNufanceSj the King cannot Qin an ordinary way) fut any man toanfwer; but he mufi he apfri-' fed iylndi£lmenty or other matter of Record. For, by the Law of the Land, a Felon or a Murtherer can- not be convicted (^/^} or attainted (^^^^xci^thi (though he confefsthe Felony or ^'^'^'^• Murther) until a grand Jury have prefented the offence ; nor can a^ ny perfon ( generally and ordina- rily be convid:ed or attainted , or have Judgment of life , or Mem^ hereupon any Crimirlal accufation* but there muftbe two Juries paf^ upon him, at leaft 24 perfons , the one a Grand Jury (jx parte Regis) to prefent the offence fit for a tri^ al ; the other a petit or IfelTer Jury, inter Regem^ ® ferfonam accufdt. to try the truth of that Prefent- pent CO. The Grand Jury com- ^^j ^, p^^,^ mg from all parts 01 the Coun- ersubjea, cm k Convitiid hyVixdiJi^ ht ths Offence mufi be fomd by twenty fom ty (/), the other Jury, of the very neighbourhood de vici- ({) It is notfufficmt, that ^ ^^^ ^^IGYQ the offeiKe thgy dwell tn the County^ - ^ r but they are to be of the WaS committed ; lor, Vl- Nelihboiirhood',nay,^Q T^his ^/;/^- vicinorttm faSta Op^ ^cr cap. ^, it Is appointed, and lo m probabihtv 01 rheym^hemojtnearfojb l^^ ^re, prefumed tO fuHicient , and kail jufpi- , r \ • cLsAhii know fomethmff experi- mentally (befides what they have by Teftimony } both of the quaUty of the perfon , truth, and nature of the offence, with all its circumftances , and happily the credit of the Accufer and his Wit- neffes. It is not fufficient that they dwell in the County ,but they are to be of the Neighbourhood , nay, le plus procheins to thtiphcc of the fad: , as by Artie, jiiper cap.g. it is appointed; They muft be^moft near, moll fufficient , and leaft fufpicious , ibid. The firfl: being called a Grand Ju/y , or a , Great Jury , either in refped: of their number, being above twelve, Cthe general certainty of all other Juries ) and may be as many as the in Cafes ofBlooH j? the Court pleafe , but ufually ex- ceed not 2 3 , and in good prudence (when there is much , or weighty bufinefs } there ought not to be a lefler number , for if there be lefs or more , they may be fo divided, that there can be no verdid (as by experience hath been obferved J forkfs_thanjtwelyejL^^ HQLjnake a LegaJ verdicS :/ Or they are called Grand in refped; of the quality of their Perfons , and greatnefs of their Eftates , a- bility of their Judgments ( being •of good Education} or iaftly (which I conceive the beft reafonj thaty /propter excellentiam^ they are ftyled Qg) Juratores pro T>o^ Cg) Tk ¥jng: mino Rej^e pro Corfore Com. Ju- ^"'^' rors for our Soveraign Lord the King for the County of S. and as the Commons in Parliament are to the whole Kingdom, they have an unlimited power to prelent all offences committed in their Coun- ty, that are contra Tacem , Coro- nam^ ?§ dignitatem Regis^ againfl: the Peace, the Crown, and dignity C 3 -of 6 ^Wcz to (^mxTs 3!utpi0 of the King, againft either Statute or Common Law , they being the great and grand Spring , or "Pri- mum mobile of the Court , that gives motion to ^11 the other wheels ; their Prefentment being thekey, that either opens or fliuts 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 , confift of per- fons that are /r(?^/, ^ legales ho- mines , good and lawful men ; each jgan muft be ^frpbm^^ p^^J^ pr ohatiAs , an approved 4i6neft man; 'vel aGr£c. u^i(Tts isf. '^^^ Cardinal vertues ought to be ''' pv , ... attended ... 1A in Cnffg of 'Blooo. ^ attended hy nonchut the v/rtmfo^ the moft vertuous, pious, and in- genuous perfons^ £lJ^JJ^SP^fy'^^Sy ^ot only fatthfttl ^^_J^^^kilful^ TTonFcaiTBe^refumed to be faiths ful in keeping an Oath, ., (t) that wants skill to Pi4!?ri:^ ?^-^f'^- know how to periorm his hdiaed of MunUr, mi duty : What expe(aation ^''^^"-^l' 'f ^^^/^^^ hf^- can there be of a good the sheriff Jdiy thhrigs Verdid, from a bad or ^^'r^tofodh & Ada % ignorant man? Can he 7At'iT/^^' ''^'"'^ Y ' t I <>/ f^f jnftices in Eyre, it that is not capable to un- is provided fuch mquefts derftand a Caufe , ever A"^^ }>l ^4^« h i^^i 1 • 1 ^ T J ^ yiisn chofm out h Oath fof make a right Judgment :^^,;« ,V,,^ theUajtPu of it ? Will a Liar prefent ^^ K'^^^/'^j; which , i;y ^^ a truth ; a Thief convid: fl'lZf "^^ !'fr^ his fellow thiei ,• a Man of pe^ed, blood a Murtherer ? or , Who can expe(3: Juflice from him 5H.7.fol. 5. who neither to his God nor to ^^^^fj^^^' himfelf is juft , or true ? He that SETutg. believes Judges are qtiafiT^eifiods Regifl.fol.133, (as the Scripture calls them ) or that God fitsamongft, and is pre- fent with Judges in Judgment (as in the Scripture fenfe it is truth, and ought to be believed ) cannot C 4 but S 3Di)lce to ©jau5 3!uto?0 but apprehend how unreafonable it is, to bring fuch a Jury before fuch a prefence , to a(5t in a con- cernment of fo high a nature , as the life of a Man ; whofe verdidt ought to be verediSium y a true 'Jurmtntum faying, quoddam Evangelium y as qmimnu > theGofpel they fwear u^onJiBum veritatti^ the faying of Truth it felf (efjpecially as it is the verdicSt of the Jury of life and death) who have the advantage of hearing,not only the Accufer and hisWitnef- fes,but alfo the party accufed , and his Witneffes face to face. They i^jinrMof are called, although a C>^) Petty th^Grandfury. j^^^^ ^^^ > Jury of life and death, which the Grand Jury are not; although they enquire of the fame offence, from the great power in their hands to acquit or condemn the life of a man , according to their evidence. Upon whofe ver- dict, the Judge according to Law grounds the Judgment cf life or death, of acquittal or condemna- tion ; and as a Jury may give a |uft verdidl (as to themielves) upon fnCafe0of %mi. 9 ^pon a falfe Teftimony given to mem, fo may the Judge (as to himfelf ) give, a juft Judgment upon a falfe verdict given by the Jury. For as the Jurors ate excu- fable, that give their verdicit, fe- cundiim allegata., ^j^robata\ pr facrum Tefiimonium , by what is aliedged and proved to them by the Oaths of Witneffes , or con- feilion of the party ; even fo that Judge is excufable ( in foro Con^ fcienU^') that gives Judgment Up*- on a verdid: (though falle) for he doth not therein J^ dar^^ h\xt Jiis idicere fectmdum uerediEi. jtir. upon the verdid of the Petit Jury and prefentment of a Grand Jury, and this is fully verified in two re- markable (/) Cafes noted ,.,^ , " . , id the Margent ,• a fuffici- <^S^;t^, enf caution to all Judges, tigis ( HarrifonV ca^t ) not . to try any for Mur- -^ rfi\itom. vLCoVt ^njt. ^egis Anglia^ for the Law pro- Treafen^' ^"'^ vides that the Kings Liege people ihall be tried per fares , by their equals, their fellow Subjeds : In a proper fenfe he is faid, 4n Law, not to be legalis Iwrno , that is homo utlagatus^ an outlawed perfon, one that is extra legem pfitus ; who is no better than one that is ex- traneuSy an alien, a ftranger, one not only put out of the protedion of theLaw,butfuch a one as the Law will have nothing to do with (zs he fo (lands) in Courts of Ju- ftice, to ferve as a Juror ; nay, fuch a perfon being a Juror, will make the verdid void , and it is a good exception in arreft of Judgment, that any of the Jurors were out- lawed. But in a larger fenfe he is not not legalis homo , fuch a legal and indifFerent perfon (as the Law re- 3uires ) who is either in fuch a egree of blood to the prifoner, as the Law prefumes him partial , or in fuch an evil reputation, m is liber & icgaiis ho- as the Law prefumes him ^^^ ^^^f ^^ ^ ^^^ 4 M* v.,«:,,/l r^v. ^,o :«. ,Vr,/^<.^<. and credit, that doth en- Un^uit; for as it isnotht j,j,iiberam legem. Coke for a Father to be of a ^^mft.foUi. 11H.4. Jury to try his Son, or the ^oke ^.mj?. /0/.32. Son the Father ; Brothers,lIncles,or near Relations to try one another , fo it is not fit that he that isj^arti- cej?s crimink , or indeed criminalis homo J a man that ftands judicially accufed, indidedjConvidted, or at- tainted for Felony , to try another for Felony (or indeed to be a grand Juror to prefent it ) the Law pro- vides that each Juror ought to be a perfon, re£fus in Curia^ that ftands right inGourt,above and againft all natural, rational, and legal excep- tions. Qui accufat Integra fama fit ?§ non criminofus ; for cettainly, to clear the matter of facSt (as a Juror of life and death} and wife- fy to difcern the Catife in queftion,, ' upoii I ^ auDicc to ®\ms 3iueo2iai upon a doubtful and perplext Evi- dence , many times , recjuires as great ability in the Jurors of life and death , as in the Judge to exa- mine the caufe, and to give Judg- ment upon the Verdidt ,♦ there be- ing much more of Black-art ufed to darken and obfcure the truth of the fad (in cafes of Bloud) a- mongft the Jurors ( efpecially if either a great Perfon , or rich, be concerned therein) than po/fibly can be, to prevent or prevaricate a right Judgment, in the Judge ; or by any dull of gold, power or fa- vour, to put out his eyes, or falfifie his clear fight, vi^hofits every v^ay above fuch a temptation. The Jurors of England ( efpe- cially in the Circuits} with their unequal yoke-fellows the Tales- men^ are(^for the moft part) the veryfcandal of the Laws pradical of ^^^to^,whofeldom (erve,but KSi to ferve a turn (m), to obey a Su- jury.some jer-U' periour, plealure a Friend , or to ing y that had more need to be relieved by the 8d. than dlfcretion to pft out thi truth of the fad, help in CaftjS of ^loolr. 13 help away ( in a hurry ) a quick difpatch of pradlice : This fault is not in the Laws oi England^ but the male execution of them. The • Statute of the 27 Eliz. c. 6. pro- vides that each Juror fliould have at leaft four pounds j^er annum in Lands, Tenements, or Rents ; and this muft be their fufficiencj^ where the {n) debt or damages (or ^^^^^"^^ ^' both together') amount to forty ^J'^^^' marks. The general courfe of the world being to efteem men accord- ing to their pftates. Quantum quif- jo[ue [ua nummorumfervat in area , tantumhabet^ fidei. Jurors that have Eftates to lofe , wJJil be afraid to commit perjury .The beft things abufed, alwaies prove the Worft ; the fweeteft Wine makes the fliarpeft Vinegar, not that the fault is in the Wine, but in the ufc and abufe of it : were better care taken in return of Jurors (0), I (9) in Incim dare fay, the trial by twelve ^'^^ f.^"'^' mon Plias as 'in IHeas of the Crm^ mn mlVi Knights, Gknvile lib. 2, c» 14* would 1 4 3fiWt to ® {attD %\Koi$ would not be more ancient than ex- cellent^theExcellency of it appears, in the long,conftant,and general ufe of it amongft the people oiEngland. This way of trial, to have aS their Eftatesjnjuries, and Lives tried by twelve men^and thofe Neighbours, of our own degree and parity, and without exception (upon a lawful challenge ) certainly nothing can be faid more for the commenda- tion of it, than the conllant pra- ctice, and unanimous approbation of it in England^ to this day, fince the firft beginning of it: The trial by twelve being very ancient , though Mr. 2)^;//^/, and Tolydor Virgil deny it to be ancienter than the Norman Conqueft. But ^olydor (as fays the excellent Sr. H; Savif) was an Italian , and a (Ir anger in our Common-wealth ^ ,^., , . , and Co deceived! C P^lt v. Speim^n in Jurat. ^^ ^^ EngUjh Saxon de- -vUz confHit. de Martu. fcent , as by the Laws of m\Xixv.i. g;ing Etheldred, cap, 4. thus ; In all Hundreds let jiffem- Hies be , and twelve Free-men of the fttCafessof 0BIOO6* ij the mojl ancient together Jhail [wear , not to condemn the Inno- cent , nor absolve the guilty. It was in ufe with the French^ in the Age of Charlemaine. They that would fee more of this , let them read that learned and ancient Book written by Judge Fortefcue , in commendation of the Laws of England. I Ihall leave this Sub- jed:, having briefly touched upon thehappinefs and liberty the Sub- y^diS ot England enjoy , to have their trials for their Eftates and Lives , pr fares , by Juries of twelve men ; what manner of perfons Grand Jurors and thofe Jurors ought to be , and of the excellency and antiquity of fuch trials ; in the next place ( after I have ihewed the heynoufnefs of Murther, both by the Laws of God,and the Laws of thisLand^and made fome little parallel therein) I ihall briefly fliew , That it is >^ the duty of all Grand Jurors, in all Cafes of blood,toucbing the death of any reafonable creature, by violence. i6 aotoice to ©lana %woi& violence , or by the hand or ad: of any other reafonable Creature , where the Bill of Indidment is brought unto them for Murther, in cafe they find , upon the Evi- der;ice, any probability that the perfon faid to be killed in the In- did:ment , was flain by the perfon charged to do it in the Indicft^ ment) toput B^Ua vera to that indidrment , without foreclofing the Court , by judging amonglt themfelves the points of Law that may arife in that cafe,as whether it be Murrfier,Manflaughter,at Com- mon Law, or upon the Statutje Se djef^fer Infortuinum^]\xitiAd!D\Qj ox otlierwife; none of thefe fpecial matters being to be found by thern that are but Inquifitors and A Slay them not left my people for- get it : but fcatter them abroad amojtgfi the feo^le , and pit them downy O Lordy our defence. And that was the Judgment of Cainy who before his natural death (fome fay} was kili'd by Lamechy who fliot in a Bufti at a Beaft, and kili'd Cain (£). And the Turks (V Theod, at this day believe, that at the w.44.^« Day of Judgment , when the Grave and Hell jQiall deliver up their dead , Cain , that Fratricide and murtherer , Ihall lead, and be as it were the Captain of the damned in Hell. Amongfl all the Laws of God, w^hich he himfelf appointed the Ifraelites (his own People) when they weretoir^habiteC^;^^:?^^, the Land of Prorriife , there was not any mercy , or City of Refuge appointed for i Murtherer or Man= ^ ■ D 3 . ■ ilayei, l2i atJJjicc to ©^anu %\xxm flayer, but. only where it was done unawares ; as feveral clear Cafes are put in Scripture to make this ^5.Numb.23. plain, 3 J NumLz 3 .v.Tjf one throw a Stone that a man die thereof (andfaw him not') but did it una- wares. So the i().T)eut.^. Wheit ^^p.Deut.^. ^^ mangoeth to the wood with hts Neighbour (mark how ftrongly this Cafe is put , with his Neigh- bour, his Friend, whom he had no unkindnefs for) to hew wood^ and as his hand fetcheth a fir oak with the Axe to cut down the Tree , the head Jlip;^eth of from the helve andfmiteth his Neighbour that he die ,• in thefe, and many fuch like cafes there put , he JhaU flee to the City of Refuge , and flay there un^ til the Congregation JhaU judge betwixt the Manflayer , and the •^ Avenger of bloody whether he did it wittingly^ or unawares. The Hebrews underftand by the Con- gregation , the Senators and Chief Judges of the City ; and although it were done unawares , and fo adjudged by the Congregation, yet inCafesofBlooti 25 \€t fo hainous was the offence of Blood before God ( though no- thing of mans will in it ) that even fuch Manflayer was never (^during his life} afterwards to de- part from the City until it was fo adjudged by the Congregation, or until the death of the High-Prieft, (who was a type of Ciirift that fet us all free ;} for if he did de^ part, then the Avenger of bloody (who was next Kinfman to the party llain} might, if he met him, juftiiie the killing of him. So it is very apparent , that before thefe Cities of Refuge were appointed for merey to him that had killed another unawares, fuch a Man- flayer might have been killed by the Avenger of blood , as well as he that had killed another wil- fully : and' after they were or- dained , they could not be intend- ed to iliew Mercy , or to be an jifylfim or Sandnaryfor a'ny that had willingly, wilfully , or by a paffionate affault killed another. If it be objeded ( as what fin or D A offender ^4 ZWtt to iSjantJ %wm offender is there that hath not his Advocate) that it is faid in the f p. Deut.1 1. 1 9. of T)etit. 1 1 .V . But if any man hate his Neigh hur^ and lay await for him ^ and rife againft him and fmite him that he die , and then ftie to any of thofe Cities , keJhaU be fetcht thence ^ and delivered into the hands of the Avenger of bloody that he ?nay die. Thine eye (though the tendereft part thou haft) Jljall not [pare him (how comely foever his perfon may feem) but thou Jhalt fut Innocent blood from Ifrael , that it may go (^a) i.e. mtb Well With thee (a). If it iliali be the MagisiraUy^^Q^f^ from hence , That the m eope. Cities of Refuge were ordained for all forts of Manflaughter , but w^here it was done of malice, fore- thought, ancient hatred , or with a fedate and malicious mind,- hereby implying , that he that kills another upon a fudden quar- rel, affault, or in heat of blood (as it is termed) might flie to a City of Refuge, and hnd Sanduary ,* It muft needs b^ upon a very great miitake* fnCafejsof TBIaoS* %j miftake. Nor can the Judicials of God herein (put into feveral plain and iliuftrating Cafes by God him- felf ) be reconciled if it iliould be fo underftood : It is faid in the ^i. Exod, i-^. Jf a man lay not wait , but God deliver him into bt6 hands , then I will a^^oint thee a flace whither he Jfjallflie. The meaning of the delivering him into hu hands , muft of ne- ceUity be underftood of fuch a providence that could not be fore- leen, and fo not poffible to be pre- vented by the Manflayer , where- in there could be nothing of his will , but purely chance and un- awares , as in the Cafes put before of cafting the Stone , and killing one he law not ,• cutting of the wood, and failing of the helm of the Axe, or Bough from the Tree ; where many fuch Examples might be given, which the Law of £;/§■- /j/^^nowfums up in one head or Reafon, viz. (Ji) Where one is {bjutrumquis dederit operam ni licit (^ aniUiclu* Stamf.lib.i. fol i2» :: doing aS an&icc to ®?anli 3iutO|0 doing a lawful and juftifiable ad: in his Trade, Calling, or lawful Re- creation , and by chance and un- awares , another happens to be kill'd by him, then he ihall have a Pardon of courfe now inftead of a City of Refuge (as fliall be here- after fliewed} for it is very plain by exprefs places of Scripture,that all other voluntary killing of a man unlawfally , found no Mercy, no City of Refuge , but there the Manflayer was to die by the hand of the Avenger of blood ( it ap- pearing fo before the Magiftrate or Congregation : ) As to inflance in fome few Cafes out of Scrip- 2i.Exod.i2. ture. 2 1 .Exod, 1 2. He that (miteth a man that he die ^jh all be (lam for it : if any deftrudion follow,there he fhall give life for life ( except it be unawares.} So in the 16,17, ^i.Numb.i6, ^g^ ^^ ^^ ^^^ ^jP Numbers, If ar^ man jmite another with an inlirument of Iron that he die ^ then he is a murtherer , and the MtirthererJIjall die for it. If he [mite him by throwing a Stone that in Cafes of TBIooS* 27 that he die , he that [mote him is a Mttrthererjet the fame murther^ dainjafotl er be (lain ; therefore the Avenger of blood himfelf /hall flay the Mtir- therer. When he meeteth him he JhaU flay him Q mark the Ingemi- nation, ) hejhall [urely fay him^ as it is in the zi.Exod. 12. He that fmiteth a man thgt he die , fjaUdie the death ; that is , JhaU ftirely die ; for this doubling of the word , importat m^ajorem cer- titudinem^ importeth greater cer- tainty ; and yet in all thefe Cafes, not one word of malice , lying in wait JOY enmity, (c^ It , , IT TT :;.u ^ (c) He that fmteth anotkf IS a general Law, He that lj,i, ^, ^,-, f ^,^^ i^^endas killeth fliould be killed ocddere, fivenon, ^di again, and this Law is ^'^^* grounded upon the Law of Na- ture ; for like as it is agreeable to Nature , ut putridtim membrum abfcindatur^ tit reliqua conferven-- tur^ that a rotten member iliould be cut off that the reft may be preferved ; fo a Murtherer is to be killed , ne plures occidantur^ left m,ore fliould be killed/ This ^^ Law ^8 atiSice to ^laim Slueois Gen. ^, Law is given unto Noah , Gm. 9. when the World was reflored ; and here it is but repeated and renewed. The Laws of other Nations herein confent with Mo- fes : The Athenians did feverely punifli Murther , expelhng the Murtherer from the Temple of the Gods, .and from all Society and Colloquy of Men, till he had his Judgment. And by the Law Cor- nelia^ among the Romans , He which had killed another with fword , or poyfon, or by falfe Te- ftimony, loft his head, if he were of the better fort ^ if of meaner condition , he was hanged on t'he Crofs, or caft unto Wild beafts, that was himfelf Hke a Tiger a- mengft men; Simler, And the reafon of the feverity was,becaufe Murtherers deface the Image of (i) ^yUunhf Qo^^ivi Man(^), and lay violent Vmm%. hands to take away his temporal vikUh ail the World cannot rejiore, Treis, though the^ be cut down grow again ^hut a Man onceflaln can never be recovered. Pericl. apudPIut. in ipfius vita. And for the niofl part , unlefs the Mirci of God be the greater ^ ^t Soul is loH with the Body, iitCafeiSoC TSIaoO. 29 life , for whom Chrifl: died to give eternal life. A King (an inferiour god) would take it ill to have his Image, his PicSture, wilfully ftab'd through and cut in pieces by any, becaule it is his. It is very plain, by the Judicials of God, that where there was any wilful fmi- ting, or llriking ( though fudden- ly, and from a prefent* paffion , occafioned by a ludden provoca- tion) whereby death followed, in which the will , fury (which is a temporary madnefs ) alTent , or affault of the Manilayer , might appear, there was no City of Re- fuge, or Mercy, by Gods Law pro- vided for it ; only what was done unawares , and unforefeen ( as aforefaid) found a City of Refuge, otherwife what can be meant by thofe words , unawares , and where he jaw him not: and in thefe very Cafes of killing ano- ther, ex imfrovifoy unawares, or by misfortune, for whom there was a City of Refuge provided (by God himfelf) yet there the Avenger 30 (j ) Bezer of the Reuben- ires, Ramoth of Gilead of the Gadites , Golan in Bafhan of the Manaifites j thefe thne on this fide Jor- dan, Deut.4.41, 45. thefe three appointed by Mofes. (f^ Cadefh In Galilee in Affl««f Naphtali, Shechem in Ephraim, and Kiria- tharba which is in He- hrcfn^in the Mmntain of Judah h ^~thsfe three Uji Tvere beyond Jordan , and appointed by ]ofhm: Jofh. 20.7. equdly dijiant one from another in Canaan. K. Saloni. Jarchi, Dent, Avenger of blood, if he overtook the Manllayer before he got to a City of Refuge ( and in fome pla- ces it was* many miles to one of them) he might juftifie the killing of him. During the Israelites fojourn- ing in the T>efert , the Tabernacle (where mention is made of the Altar) was their Refuge in fuch a cafe ; afterwards in the Land of ( ^^^™S the High-Priefts hfe, chHYchis.cathe- becaufe the offence did moil di- drdand coiie- red:ly llrike againft him, as being %TicatuTlU amongft men, *^o^9^, acTrincep their elm ch- ScinBitatps ^ The chief god on wdsmisan^ ^^^^}^^ Thefe places of Refuse dumestothem . , , ^ , ...t- i r ^ belonging; and. appomted by God , differed from Wdis , Weft- thofe of Hercules y^ndRomuluSy^nd r&orth- o*ep. Heathens, yea, and Chrifti- hampton,Nor- an Kings formerly of this Nation , ^^^^L ^^^^' becaufe God allowed fafety only to ^terwlrdsy^' thofe w^ho Were guiltl efs in refped: in^ the fame of their intention : but the others Schefier ' ^^^^ common Sandtuaries (/6), as was detsYminedandWc{ic\\cfitTapl>ointed,'Wc{ichc{icr difcharged tf«^ Stafford appointd^ by Utters Pat, from the f\ing* Stamf./o/.i id, well W^U for the guilty as the guiltlefs : If any man aid fortuitouily, or by chance kill another man, in fucha cafe, a Liberty was granted unto the offender to flie , at firft unto the Altar for Refuge, as is implied by that Text of Scripture , If any man come frefumptuotifly unto his Neighbotir to flay him with guile ^ /- ^r i thou /halt take him from mine Al- [fsanauLyex^ tar, Exod.2i.i4. (^/)i tended not to Tnafoni wilful Murther^ Rape, BuYghry, Kohbery^ Sacnledge, Burning ef Houfesand, Barns with Cornj&c, 32H.8.12. 33 H.8.15, It ferns they did ex- tend to all thefe offences before thefe Statutes, All Statutes mads con- cernlng Abjured per fons and Sanctuaries , made before 3$ Eliz. tvere repealed by the i. oj I{i?ig James c.2^. Clergy is ftnce tal^n away by fever al Statutes for thofe offences aforefaid , for Tvhicb SanCiuary by the aforefaid Statutes was ta^m away. And it is thought that Temples, as they were built, had the like priviledge ; as , JoaS^ fled to the Temple^ and took hold of the horns of the Altar, The Pveafons why the Lord appointed Cities of Re-= fuge are principally thefe ; Firft, left that the Innocent party might be ilain , by the Friends of him whom he had killed , before E his Iiis caufe was heard , and the man- ner of the flaughter determined by the Judges. Secondly , it was fo appointed, that he might ftay there to the death of the High- Prieft , who was a type of our Bleffed Saviour, by whofe precious death we are all fet free. Thirdly^ this was done ut menti eorum ( hac ratione } medeaUir^ '^c. to heal and allay the mind and fury of thofe which otherwife would delight inmurther; for by his ab- fence and continuance of time, the rage of thofe that fought his life would be qualified , and therefore God provideth , that theyfhould notftill be provoked by the con* tinual fight of him. Fourthly, and further by this , that he that killeth a man unwittingly is ap- pointed to flie, it is fliewed (j^uod reus pmi£ efficitiif) that yet he is guilty of fome punilhment. So that involuntary kilUng was pu- niflied with a kind of Banifliment among the Ifraelites : So likewife amongft the Athenians ^ fuch kind of in Cafe-Sdf 131000. 35 of Manflaughter v/as cenfared with one years Exile. And fo a- mong the Israelites ^ he that e- leaped from the Avenger of blood forit was but an efcape ) was not to go out of the hmits and bounds of the City, if he did, it was law-^ fill for the kinfman of the man that was flain to kill him. : . There is a manifeft diftindrion of voluntary and involuntary ' Murther or killing , grounded upon the Law of Mo\es : Invo- luntary kilhng is of two forts, there are an^^uaTu^ chances unlookt for and fudden events , as when one Ihooteth an Arrow (upon a lawful account , and kilieth one unawares, as Teletu killed his Son, being in hunting with him. There are befides thele , a^xA^TnyjuTa , er- rours and overfights , as the Fa- ther beateth his Child , purpofmg only to chaftife him , and do him good, and he dieth of it. There are likevvdfe two kinds of volun- tary or wilful Murther , ex ^ropo- Jito , of pirpfe , © f .v tmptu E 2 an inn ^ 36 atiijice to ® lanlJ 31utoj0 animi^ in A^^^ or n^^^ ; thefe kind of Murthers are called ac/>x«f^7«t , Iniquities , one may be flain ex frofofito^ purpofely , per infidia^\ by lying in wait, v;hen one watch- eth for the life of a man , and ta- keth him at advantage , as ^oab killed ^hier^ and afterwards fled to the Temple , and took hold of the Horns of the Altar , which notwithftanding could not privi- iedge him ; and afterwards killed Amaja^ they fufpe(3:ing no fuch thing ; fo Ijmael killed Gedoliah : oxtMt^perlndtiftriam^ when one of fet purpofe picketh quarrels, and feeketh occafions to provoke a man that he may kill him. Both thefe kinds are touched here , 7c- Jfat.qu^J}. 1 6. Then one may be killed in heat and rage when there was no purpofe before, as Alexan- der the Great killed Clitus* This kind though not fo grievous as the other, yet is a kind of voluntary killing, for whom there was no mercy by Gods Law, as it is in the Margent of the Great Bible,/fi7f/// Mnrther .Deut« Murther cannot h pardoned with- out Gods high dijpleafure. Nay, as it is more fully in the Text it felf, (>^) Thine eye (though the ^|^'^ molt compaffionate fenfe} pj all not fpare him^ but thou^ whoever thou he , Jhalt put away innocent blood from Ifrael, that it may go well with thee. Now the putting away of Innoceiithloodisby revenging it on him jthat fpilt it ^ as it is in the ID. V. of the fame Chapter, That Innocent blood be not jhedin the land^ which the Lord tliy God giveththee to inherit^ and {o blood come upon thee ; that is , that the Blood of the party flain be not im- (j^ poiiuitur puted to thee : This Imputation & foedatur of blood, which is of more weight ^5fra,iv^j^'55; 1 It • r 1\ A 1^ 50.35. r^/fe^/^ than tjae Imputation 01 ai| Adams u^e no fatif fm, becaufe the command is more f^^^(^^ fi>' the immediate and legible to us;it con- '[trefwm7s cerned all the Ijraelites in gene- guiuy of deaths ral, but more efpecially doth it^j^^ ^^M^^ 1 r t fr 1 "^ X furely put to concern thole cholen by Law to death-, for ye make Inquifition after r/)Innocent M^ not pollute •^ tkLandwhsre- i^nyou are, for blood difileth the Land^ and the land cannot be eleanfed *of the Mood that is jhed theriin, but by the bloodof him that [hed it» E ^ blood blood unlawfully and wilfully llied as principally Grand Jurors are ; for whofe fakes, and that the fol- lowing difcourfe may fix the bet- ter upon their Judgments , and thereby m.ake a right impreffion upon their Confciences to be m.ore circumfpedt and careful in their Preferments in cafes of Blood , I have premifed (^ as I conceive } what was the will -and Law of Cod (as he himfelf hath declared it, and left it upon Record to us in his Judicials to his people 7/;v/- ef) who received Laws and Judg- ments from God himfelf for their whole model and fyftem. of Poli- tical Government ; agreeable to w^hich I might add the mind of bur Saviour Chrift under the Gof- pel (w ho is the bell Lnterpreter of the Law} in bidding Teeter put {m) Matt.25. up his Sword (^z?}, and his inter- ■'^\^^y-^^\ pretation upon the fixth Qom- 9utr4citur mand , tie that t6 ajigry ^-jvith his ^e caiijy^juM' Brother unadvifedly y??/?// ^e cul- uml^!adi- P^ble cf Judgmem^jT). I fliall in inCafeisonsiooli - 3? in the next place endeavour to ma- nifeft, how parallel the Laws of England have heen^ and ^re^to the Judicial Laws of God in the pu- nifliing of Murther and lliedding Innocent blood, and extending mercy where it is done prater iH'- tentionemy unawares and by mif- fortune, or in the necelTary defence of a mans own life or property,and what Afylum is provided for fuch ; and how the courfe and practice - _^ of the Laws of England ou^t to be, in prefenting and making In- quifition (by Grand Jurors} after the fame. Not t© look fo far back to .find what the Laws were (in cafe of Felony and Murther} as to the time of t\\t Saxons (0} Heptarchy (^o')Kent, in Endand. when the Monarchy South-Saxons^ had many heads, bemg ^^/^'^/^ Eaft-Saxons, mult ovum Capitum ; and fo for the Eaft-Angies, mod part had fo many feveral No^thumber- y ^ 1 -m • • 1 -^ 1 /- land, Mercia, Laws, each Fnnce either pleaiing his own humor , or adapting his Laws to the condition and quality of the people he had to govern, E 4 which %6 aaWc€to©ianB3luroig which as they differed in their quaUties and conftitutions,as much as the feveral Winds differ the fe-^ verai Qimates from whence they blow, out of the four Corners of the world , from whence many of their Kingdoms were differenced and diftinguiflied by names ; fo did they differ in the nature and quahty of their Laws : fome of the Saxon Kings had excellent Laws, as Ina, as faith Venerable q^L.'j.c.i6. & jg^^^ Q^ ^ ^j^Q flourilhed in that 5C4.p.375- j^ingst:ime. Tiiemuld: or breach of Peace was forty fliillings in the Mercian Law. In the IVeji'Saxon Law, fifty fhiiUngs. The punifh- ment of a Free-man was pecuni? ary, and lofs of liberty, of a flave by whipping. Treafon againft the Lord was Capital , and could not be appeafed with mony. Amongft the Laws of CamiUis the King it (ci) LJcanut. IS faid, (^) Si quk in Regia dimi^ fol.n7.c.5d. carets Capitate efto ^ nifi quidem Rex hoc tin crimen condonarit. If any fhould quarrel or fight in the Kings Palace it was Capital, except litCafesof TSlflol!* 4* except the King remitted the fault. They were unwilling to put any man to death, becaufe of lelTening their ftrength , being fo much di- vided that for the moft part there was an aflimatio captfSy a certain ^ fum of mony, or O^rporal punifli- ment fet upon every Murtherer and Felon, refpeding the quality of the perfon killed , or he that killed him ,- yet amongft them there was ftrid: inquiry after Blood, by punilhing the offender according to their Law^s. And to look for it amongft the Danes y and their Laws , would be to as little purpofe; for as it is well obferved by Mx. Lambert (r), (r) Lambert lu Temporihts vero Regum Danorum Edw.ConfeiT. fepultumfuit Jus in regno. Leges "iknlmrlT C^ ConjtietudineSyfimul ^opta^tem^ for thus eorum frava vokmtas , vis, @ violentia magts regnal? ant qudm Judicium in terra. In the time of the 'Dani/h Kings, Right was buried , Laws and Cuftomes were laid afleep together , the depraved Will , Strength and Vio-. lence 4* RMulph,Cs(Jj, L I. c. 550. HovJSqo. L, £i.c.35. in Hoved. Malnjsk de ge(Lreg.i.2. C.I I. lence did reign and rule more .than Judgment in the land. Yet to make fome amends we have it by good Tradition , that good St. Edward the Confeffor^ the laft King of the " Danes that was King of England ) yet of Saxon blood, Colled:ed out of the T)anijh , Saxon , and Mercian Laws, an univerfal and general Law ( whence our Common Law is thought to have had its original) which may be true of the Written Laws , not of the Cuftomary and unwritten Laws , thefe being cer- tainly more ancient, Som.e fay, that Edward the Third , before the Conqueftr^, fet forth the Com- mon Law, called the Laws of Edward to this day, which St. Edward ^{^Qiwitdi as his kO: , and falhng !aft upon the work He carries the name. One fays King Canute compofed our Common Law, 'which St. Edward xhQ Con-- feffor obferved. This King Ed^ ward the Confeffbr was in his life of that Hoiinefs , that he received power in Cafegof TSIooU/ 4? power from above to cure many Difeafes , amongft others the fwelUng of the Throat (called by us) The Kings evih^ a preroga- tive that continueth hereditary to his fucceflbrs, Kings of England^ to this day; the powerful efFed: whereof hath been moft eminent- ly manifefted by the Touch of our moft gracious King that now is k. charles (fince his happy Return into Eng- ^^'^ ^^^°^^' limoJl acquifitionem Anglia^ after he^ had obtained andfetledthe Kingdom in peace, in the fourth year of his Reign, (s)Mirnm. Concilio {i) Baronum fuorum , by the advice of his Nobility, he caufed to be fummoned through- out England^ the Nobles , Wife- men, and fuch as were skilful in the Laws, Rights and Cuftomes of England , and eled"ed twelve Knights out of every County, who I in Cafe0 of O5l0o5* 45 tvho were fworn before the King to make a true CoUedion of the faid Laws and Cuflomes. Nihil ^netermittenteSy nil addentes^ nil fravaricando mutantes. Amongft thefe Laws we do not find Mur- ther puniftied with death. It be- ing fo near the time of the Danes and Saxons , it feems he made no violent alteration of their Laws, but kept their cuftome of aftima- tio Capitis^ or Corporal punilh- ment. We find amongft hi^4.aws thefe words, (f) Interdicd etiam{t)Umh.mt!^ ne qui6 occ i datura el [ufpndatur^^^^^^^^^^ fro atiqua culpa fed eruantur ocu- li ^ li> ahfcindantur tefiiculi vel pedes vel manus^ it a quod tr uncus "vivus remaneat in "^ tionk ?^ nequiti^ mand that none be killed or hans- Engird ^ ^^ ed for any offence but that his J'^f;^, eyes be put out , and his Tefticles, by hekfiMny part of his hdf^ the Delinquent [houldlofe the like p art \ oi he that too^, ^^^y another mans life (honld lofe his own, Braft.lib.5.numb.4. So if the Defen- dant in an Appeal of mahime (houldbe found guilty , Judgment a- gainst the Defendant jhould have been, That hejhould lofe the likeMm- her that the Plaintiff lofl, hy this mems^A handfsr a hand, &c* 40 AfCp.Mirror ^4 d^ $. or in flmum prodi- r x 1 r ^r ^ ^ WBytheancf 'JU£ (uy I com- m Laro of 46 ausice to (S?auti 31ui'a|£§ or feet, or hands be cut off, fo that the Trunk of his body may re- mam alive ; in token of his Trea- fon and wickednefs : any punilli- ment then , but lofs of hfe and baniftiment , for it is faid amongft his Laws, Trohsho tit nullus ven- dat hominem extra fatrtam. I forbid that any perfon be fokl out of his Country* Now although that thefe kinds of punifhments are not commen- furate to the offence, or to the Law of God , or to the Laws of England^ in cafes of Murther^ there being not life for hfe ; yet who is there almoft amongft the Sons of men , that would not ra- ther chufe to be hanged, than to have his eyes put out , his Tefticles , feet, and hands cut off, and to furvive with fuch a brand (.)L..«^.m of Ignominy, (x) Amongft the leges Uvccfii Laws ot the Conquerer , m the R.c.i$. Lex Title Lex Mtirdrorum^ it is there ^s^Slib!!*. f^^^^' ^^'^^y be found MurtheJ-- fol.17. * ' ed, the Village in whom he was fo found , was within eight days to in Cafe0 of 'Bloou* 47 to deliver the Murtherer ;.y^/- ct£ Regis ; if he were not found within one Month and a day , the Village was to pay forty marks ; if the Village were not able, then the Hundred was to pay it , and this mony was to be fealed up, under the Seal of a Nobleman of the County, and fent into the Exchequer, there to remain a year and a day , to the end, that if the Hundred or Village could within a year and a day bring the body of the Murtherer to Juftice , they ihould have their mony again; if they could not within that time take him , the Parents of him that was murthered fliould have fix mark , and the King the reft ; if he had no Parents , then his Lord or Mafter fhould have it ; if no Lord or Mafter, then(jy) Se- (y^^^ ^^^^ lagus ejus^ i.e. fide cum eo Ugatus^ msunty. that is , his Pledge or Surety ; if he had none of thefe , then the King Ihould have all the forty Marks ( which was as much then as five hundred pounds now) ^ub * ^ ctipis 4S ^WCt to ®m^ IiKOl& ciijus frote5tione , ^ pace degunt umverji; If the Murtherer were found, and would not defend his Innocency, Jtidicio T)ei ^ fcilicet aqua^ velferro^th^t is, (land in hot fcalding-water , or pafs barefoot over hot-bars of Iron, Jieret de eo Juflitia^ let Juftice be executed up on him ; but what this Juftice was, or what punifliment he fliould fuffer , fome doubt there (^) Thdt is, fo much as ms is: r;s)Some fay it was ad paid for the killing of a ^,±..,f,.fpy^ d.^V ^^ ^U^ many by which it appear^ vomtiaiem i^eg.s^ or me ithythat. fiich Government ufual V/ay ot iefumatlO •was in thoje days , as QapittS , Or Corporal (laughters of men were mojl -^ • n ^ j \. ^ rarely committed , as Mr. punilhment , and nOt tO Lambert eoiieaeth.Umh. fuffer death, becaufe (as lllTl'^T't^^i^Z^^^^^ before is obferved) there /(,/.344. IS round amonglt thole Laws, Ne quis occidaUiYy velfufpendatur^ pro all qua Culpa ; though others are of another Judgment , that it was Capital if the King pleafed, whatever the punifliment was ; you fliall not read of any Infurredtion or Re- bellion before the Conqueft, when the view of Frank-pledge , and other fnCafegof IglaoB. 49 other ancient Laws of this Pvealm were in their right ufe. There are many that are full of Sr. Thcjnas Moore's kindnefs , and think it too much that a man fliould lofe his life for crimes un- der Murther , as for Theft , &c. (h\xt none fo kind to a Murtherer) ior which anciently a lofs of a Hand, Eye, Leg , or other mem- ber was in ufe,* yet the party taken in the manner , hand ha- bend, having the ftoln thing in his hand, in his poiTeffion , might be killed amonglt the Saxons , he ^ould not buy his Crime out ; and the Sfanijlj condemning to the Gallies , is thought by fome the only way. M\:,T)amel will have it, that a-s yet (writing of King Henry the Second's time) they came fiot fo far as Blood ^ which is not fo • for King Henry the Firft (^d) (abrogating (a) Hoveden faw, 471, tri. the -ce;/?rf-^//^^) by which H.i.c.«r//.Birghamftead. a man might have bought i.ioina 5* 57, M.±dik. out his offence , made a Law, fays Hoveden^ ZJt fi quk in F ftitto furto vel latrocinio defrehenfus fuiijet fiifpenderetur ; to hang the Thief: with whom Vigormenfis ^nd Rad. Niger agree. And the Lo. Coke obferves in the third In- Jiitutes , that before the Reign of King Henry the Flrft the Judg- ment for Felony was not aiwaies the fame , but King Henry the Firft ordained by Parhament, that the Judgment for ail manner of Felonies ihould be , that he Jhould ^ ^' '• be hanged hy the neck until he he Matth.Parif. ^^^^ ' After, in the latter end of continiiat, the Reign of King Henry the 1005, Third, we find a Thief who had ftoln twelve Oxen beheaded. Capital punifhments have not on- ly been in ufe againft Homicides and Felonies , but other Tranf- grefibrs alfo , and amongft thofe who worlliipp'ed God rightly Q as is well obferved ) we meet with no Divine precept before Jtidah^ which makes Whoredom worthy of death, yea, when he is told , Tamar thy T)aitghter in law hath flayed the Harlot , he anfwers * Bring Bring her forth and let her he burnt, Ql?) Amongft the Bri- (^b^ Cxfzfs tains , if the Wife killed her ^^'^^^f^-t^- Husband ihe was to be burnt ; lo ^^^.^y^^ j^oo are the Enghjh Laws to this day. f r In-- fortunitim^ or ^e T)ejendendo^ and the Grand Jury will not find it Murder,whereby he may put him- fclf ( as the Statute of Gloucefter directs , de bono ?^ malo fuferpa-^ triam) he can never by a pardon of courfe , receive a total and final difcharge from the faid Offence. For if he iliouldbe Indided at any G 2 time S;>. 6S aBDicetoiSjauBSiucoi^ time again' of Murder for the death of that Party ( as he may be at any • time after , during his life, notwithftanding fuch pardon, where it was not tbund Murder or Manilaughter at the firft) he can make no Plea to fueh Indid:- ment, in difcliarge of it: he can- not plead atiter Joits' Acquit, or Convidt, or Attaint of the fame Offence, becaufc he never put him- felf de bono & malo fttfer patriam^ upon his Country, his life was ne- ver in'hazard for it : whereas,if he have been once prefented by t^ie Grand Jury for Murder, and there- upon Arraigned, received a full Tryal, and according to the Sta- tute of Glo74cefrer , had been ac- quitted of the Murder , and the fpecial matter of^er Inforttmiumy or fe T)efendendo found in their Verdid: (^which by the Law ought to be fo found by the Jury of Life and Death ) under their Hands , that the Judge ( upon hearing the whole matter} may be fatisfied it is found according to Evidence givea given in Court, and thereupon ad- judge what that Offence is in Law. If in this cafe the party that hath received fuch a foil Tryal,and hath fued out a Certiorari out of Chan- cery; 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 par- don of <:ourfe out of Chancery ; fuch perfon can never be called in queftion again for the fame Of- fence, but he may plead that Re- cord and Verdid: of Acquittal from the Murder or Manllaughter, not- withftanding it might happen to be proved atterwards either Mur- der or Manllaughter , it ihall dif- charge and acquit him for e^ ver. And if the Grand Jury ([ as in this cafe) ought to find every ;^er Infortmmim Murder ( notwith^ {landing by the Evidence it apr pear no more to them) i multo fortiori y they ought to find every G| OfFencp 70 aoDice to ©lautJ auroijs Offence (that appears to them up- on Evidence to be but Cd; Asintk two noil- ManllauditeiO Murder. fss of Parllcimsnt it i^ but -r. i /- j^ r> tt r t a BiUwUifiin thiirhands. For the ( d) Bill ol In- the Royal ajfent mi^es it diitmcnt , aS it COmeS '." f- ^'j' i' '"f f ^'f from their hands , is but m the Grand Jury shandy it/" t^ i • r the other Jury maf^s it an the Kings Declaration ot ^^* the matter of Fad: , to which the Prifoner may plead, Not Guilty ; andjoynlffue with the King, and have it tryed, Whether he be Guilty, or not? modo ® forma^ as it is laid in the Indidment, or may confefs and juftifie , as he fliall find caufe. For this Indidmentor Prefentment of the Grand Jury in the behalf of the King againft the Prifoner, fets forth an Ad: done, Vi ®' Armis^ a- gainft the Kings Peace, his Crown, andDignity,all which are violated, " dilhonoured,& weakned in the lols of a Subjed , in the fliedding of Innocent Blood,by which his Land is defiled , and his Laws violated; and this according to the Laws of God and Man (jprima facie } may be Murder, and therefore ought as inCafegoniSIcoli li as well(as all Declarations at Law} to be fet forth in the fulleft circum- ftances of aggravation a Fad: of Blood (which far exceeds all other Fad:s) will bear, especially in lay- ing the ground work and foundati*- on of the Charge, becaufe it can- not heighten or increafe, but may leffen and decreafe , like the Moon in the full, to its loweft wane, e- ven to nothing, upon a full Exa- mination and Debate of the whole matter, by hearing of Parties and Witneffes on both fides, and re- ceiving in the face and audience of the Court fuch a fcrutiny and nar- row fearch (^as blood requires} in- to all circumftances and aggravati- ons of the Offence, that are laid in the Indidtment , by the Learned Judge ( who is of Counfel as well for the Prifoner as the King, and muft not let the Prifoner fuffer for want of Counfel in Law} that a Grand Jury cannot poffibly do , they hearing but only WitneiTes on one fide , and not the Prifoner ; befides their want of Judgment . G 4 and j% ^M^t to ©lauti 3lutois and Kno\yledge m the Law in all Cafes of Blood : wdiereas , if the Crand Juryihall take upon them {which they ought not to do) to put out of the Indictment and De- claration of the King , the words Ex malitla pracoiTttatii^ the on- ly words that make it Murder, the Court can never Judicially exa- mine the malice , which is com- monly a feeret latent thing , car- ried on with a great privacy and cunning , and appears not in all cafes ot Murder exprefs , (and no Evidence can prove further to a Grand Jury) whereas the Law in many cafes implies a malice to make it Murder (although the Parties never faw or heard of each other before ) which lies not in proof of Witnefles, but arifeth as a point of Law upon the circum- ftances of the Fad: , w^hich, not a Grand Jury, but the Courtis Judge of, being matter of Law , which Judgment in Law is wholly fruflrated and taken from the Court, when the Grand Jurors put in €afc0 of 'BIooli* 73 put out thefe words, Ex malitia fracogitata^ which only make it Murder, out of the Indidrment. And by fuch favour , indul^ gerice, or wilfulness in Grand Ju- rors , many times the greateft Murder efcapes by a j^er Infor- tiimum , fe Tiefendenao , or at leaft by a Manflaughter. For if the Grand Jurors Ihall only find it Manflaughter, the Prifoner up^ on his Arraignment, prefently (^ if he can but read , get any one to help him , or corrupt the Or*^ jdinary , no great difficulty to do) ronfeifes the Indictment , and prevents all further tryal upon that Offence, and fo neither the Judge, nor Court , can ever come to under fi and (^ although there be twenty Witneffes againftthe Pri- foner) what Evidence the Grand Jury had to find it no higher than Manflaughter; nor fhall ever come judicially to examine the nature, quality , or malice ( if any be ) circumflances , and truth of the Fad , although in it felf the foul- eft 74 ^ra^itt to ® lann Siutajs eft Murder that can be ( as my own above Forty years experi-. ence, attending the Crown Court in one Circuit under many Learn- ed Judges, hath too often experir enced ) together with the com- mon prad"ice of labouring Grand Jurors to fuch a Prefentment, and contriving with the Prifoner to confefs the Manflaughter, left the truth and foulnefs of the Murder fliould too clearly manifeft it felf ( as truth ever will ) upon a Ju- dicial , faithful , and careful Exa- mination of the Fad by the Learn- ed Judge, upon hearing the Par- ty , and Evidence on both fides. 4H. 4. 2. It is true ( as appears by 37a 8.8. ^^Q feveral Ads of Parliament noted in the Margent) that at the making of thofe Ads there was a complaint in Parliament, That Indidments were fluffed with more words than the G& fence required , and that of pur- pofe to aggravate the Offence more than it was grievous in it felf. fn Caa^ of 151005^ 75 1 felf. For as it is well obferved by Mr. Toulton. That the circurd' (") Poukon i^ {i r - r\(r J 'P^ce Regis & fiances of every Opnce do aug^ ^,^^^,1^^^^^ went or dtmintfo it according to the qualities thereof. And by thofe two KQcs of Parliament it may be obferved there -was are« formation and redrefs made there- in, by leaving out fome formal aggravating words ( but then ma- terial) ufed in thofe times in all Indidlments of Felony and Mur- ther, as by the Statute of the 4^^ of H 4. 2. the words then con- ^ ^' ^* ^' ftantlyufed in all Indid:ments of Felony ( without which the In- didrments were not good) were [Infidiatores viarum ^ defopi^ later es agrorum^ provides that thofe words ihould be left out in all fuch Indictments, and yet the Indidments fliould be. good with^ out them : And well they might leave them out; for how ufelefs and impertinent (^as to the Ef- fence of the Indidment) were thofe words , and yet the effed: of them muft be ftill obferved. As alfo 76 aojjfce to ®^anti SHitopf 57H.8. c8, glfo by the St:atut€ of the 57 H, 8. r. 8. the words, Vi @ y/r;;/^' , '(7/;^. cum bactilis^ cultellts^ ar- ciihus ^ fagittisy or fuch other like words (^before time common- ly ufed and comprifed in all In- didlments and Inquifitions of Trea- fon, Murther, Felony, Trefpafs, and other Criminal Offences) ihall not of neceility (for they were lb before ) be put or com- prifed in any Inquidtion or In- dictment; but it iliall be good only with thefe words (Vi & Ar- mis^ ^r.) leaving out the other a- gainft any advantage that may be taken (^as formerly it was) by Writ of Error, Plea, or otherwife; for thefe words were to very little purpofe, to be of neceffity ufed in every Indidment : For as to fome Indidlments,, there could be no- thing of pertinency or congruity to the Offence in them. And yet let it here be obferved by the w^ay, That in thofe times , and before thofe Statutes formerly mentioned, continually Tin all In. in Cafeg of 1l3»ooa. 77 ; liididments ) thofe words were iufed, and the Indi(3:ments found by the Grand Jurors , without a- ny proof made to them of fuch circumftances ( then elTential } as [ Infidiatores viartmi , defopila" tores agroru??i\ liers in wait to de- , ceive upon the High-ways , and deftroyers of Husbandry ; or, as in the other Statute, Cum bactilis^ ailteUis , arciibus @ \agittis , viz> with Staves, Knives, Bows and Arrows ; w4ien perhaps he that committed the Offence had not one of thefe Weapons about him , or was guilty of the leaft of thefe circumftances of Aggra-^ vation, which w^ere then held necelTary to every flndidrment ; which fliews how obfervable (at that time) Grand Jurors were to the diredrions of the Court , . and to the Kings Council , in draw- ing the In(ii(9:ments and Circum- ftances of it , Whether fuch Cir^ cumftances lay in proof, or no? But in neither of thefe Statutes-^ nor any other Statute j is there any 7? m^iu t$ (5iam %iim& any Exceptions made to thel'-' words, in any Indid:ment for the killing of a man QEx malitia fracogitata } then ufed in all Indid:ments for the killing of any perfon unlawfully, which ( as is faid before ) are of great confe» quence and life to be put into all Irididlments againft any per- fon that hath ihed innocent blood. For , as Mr. Toulton^ in the very (/; Poulton Folio before quoted , faith , (/) dz pace,&c^ (^ writing upon the two former ^^^'^^^' Statutes laft mentioned ; ) If one be IndiBed of Marther or Man- (laughter , there nwfi be of necef- fity in the dndiBment , a ftroke Vouh. lit fu^ra, ftifpfedy viz. tali die ^ © anno i.m. ^^^* 'y^' piQ^^ice ^ ^ ex malitia p'£cogi^ tata interfecit @ murdravit. Here it is plain, that the Indid:- ment of Manflaughter, as well as Murther , muft have thefe words. Ex malitia , ^c.iii it. Neither let any think that it is preft further, tn foro legii^ than it will bear iii foro confcienti£ ; OT that by this means Grand Jurors are ufed but as in Cafeis of %m% 79 as Cyphers ( like the Ordinary at the Affizes } fro forma tantum , and that the Arguments of Law and Reafon here ufed , feern'd to perfwade them (^Hke thofe of the Church of Rome ) to be of an implicite Faith, to beheve as their Leaders would have them , and to do as they require them, and yet to be under the Obliga- tion of an Oath to prefent the truth of the matter of Fac!i. It is far otherwife (being rightly con- fidered} they are not fworn to try the whole truth of the Of- fence , fo as nothing may be al- tered in what they find , for then there would be no need of another Jury I they are neither to con- vid: the Party , nor determine the Law, Whether it be Murther or Manflaughter? or of what kind or Sj^eciesxti^^ as it appears to them upon the hearing of but one fide 5 and that but of Witneffes , not of the Party, that is left (as is faid before) to the fecond Ju- ry j who are properly Tryers of the So 9tJSiccto®janl>3iU!:o;j0 the Offence de vicineto^ of the \ very Neighbourhood ; not Inqui- rers only (as Grand Jurors from every part of the County) where Parties, and Witneffes, and Coun- cil, on both fides (if occafion be) may be lawfully heard^ (pjurato cnditHTin r^) The Grand Jury are judicio. Ana to fay the ^^i r < -^ . m^ti^, faith the Lord c^^, ^nly Iworn to inquire,. tve never rud h any A6i and true prefentment Mtlf'Zih/"''T make of all fudi things Autbo) , Boo^-cafe, or Re- , n 1 1 r cor d^ that in cr mind c a- and matters as Ihaii be V [es, the party accufed Should given them in charse, tol ^ not have witneffes fworn ^ r ^ ^i • r V^V ior him, and therefore F^fent nothing ior ma-]; there is not fo much as lice, 6cc. nor leave any! ^' Scmtiiia Juris againft it. thi^s unprefented for fa- } ^ vour,6cc. From hence oi- ten Grand Jurors frame an Argu-^ ' ment to themfelves , that it is ,,^ part of their Oath to prefent all luch things as fliall be given them in charge , that generally the Judges in their charges di- late upon the feveral Species and differences in Murther : As , what Offence the Law makes Murther ? what Manflaughter at Common I Law ? what upon the Statute ? what i what fer Infortunium ? what fe Xiefendendo ? what is malice ex- preffed ? and what is mahce im- plied ,• and therefore wherever they find thefe fpecifical differ- ences by their Evidence, they are fo to prefent it, and not other- wife. This is upon a great miftake, nor is it, or can it be fo intended ^ by the Judges ,* for although it is ; true that the Judges Cior the 'i moft part , not , all of them) in their charges to the Grand Jury ; ( which I humbly conceive were '♦ bett er omitted} do, ufually mentis on and branch out the feveral ' fpecifical differences and diftindii- ons the Books of Law make in fhedding of Blood , in Murther ., and Manflaughter , I conceive ^^ more to inform the whole Coun- try., and to fliew their X>earning , and the Law therein , than inten- tionally that thd Grand Jury ihould prefently ( fome of them perhaps never ferving before, una intuitu } take it info the confide- ff trnm Sx atiDicc to © janu autoes ration of their Oath , and make it the nice Duty of their Inquiry ^ which indeed . they can never at* tain unto , or determine the Law therein , by only hearing of an Accufation of one fide , from which they are only to prepare fit matter for the Court to pro-' ceed further upon , and to make a more diUgent inquiry after. Such diftindions and diredrion^ from the Judge being much more proper for a Jury of Life and Death , when any Queftion of Blood comes before them to be confidered of , and to be tryed and determined , who have the only means to do it , by hearing all Parties, all Evidence on bothfides^ as alfo the dired:ions of the Court, as to the quality and nature of the Offence, to give them a true light to make a right diftindion therein. Tfefmmuf ^^ ^^ ^'^^^ ^^^^ ^^ ^ Learned ;«riSL. Writer of the Law; An IndiB- ment is an Inquiry finding fome Offence againfi the King, it wM the ftt Cafes of OBIaoO. 83 the Kings ABtQit whereupon the Tarty JhaU be Arraigned , or fut to Anfwer hy the K.tngy and try- ed hy another Jury. , Every ftrong [ufficion of fuch an Offence^ though it he in cafe of Felony appearing of Record y hath the force of an indictment ^ as in an Action of Trefpafs for Goods carried away; if the Defendant plead^liot Gml-^ ty^ and he found Guilty^ he is a Felon^ i§c, (p) (jj) m ancient ilm ii So in an Appeal of Mur- ^^ ufual to Arraign oni ther.tf the Flaintijfaf^ ^^f^^^ ^^^^,^ ,., |,^|^^ ter ^declaration be Noth mnu fuit ^ the Kingjhall pro- ceed ufon that Appeal^ as upon an IndiUment found : So He. And a^ it is in CO Do^or and ..^ ^ „ . - ; ■■.. Student ; The Grand Ju- ublcapAbridgmmu ry is only charged with the effed: of the Bill (viz!) whe- ther he be guilty of the Felony or Murther in the Indidment, within the Shire, and dot whether he be guilty, 7^0^(9 ® forma^ as in the Bill is fpecified And fo when they fay BiUa vefd^ they fey tru- Hi iy §4 asuicc to ® jauTj 3iuio}0 ly (as they take the efFedt of the Bill to be) ''fo it is though the Bill vary from the day,year, and place, fo it vary not from the Shire ,• as if there were falfe Latin in th-e Bill they might well fay, Billa vera , for their Verdid: ftretcheth 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 Prefentment and a Convidtion ,• befides, the Judges do now give it in charge to the Grand Jurors, and fo part of their duty ( if not of their Oath } that when they have fuch an Indidt- ment of Murther come to their hands, if they find upon their E- vidence , that /the party faid to be flain in the I'ndidlm.ent , by the perfon ther^ charged with it, with the time, and place , and manner how, they are to enquire no far- ther into the nature of it ( what offence this is in Law } but to find it as it (lands in the Indidment, which (f©r ought they know, up- on fnCafejJofBlcoti 8? on a further and more clear dif- CLiffipn of it in Court) may appear as full, as it is laid in the Indidi- ment ; however it paifeth fairly out of their hands, they may more clearly than 7 Hate warfi their hands in Innocency from the Innocent blood of fuch a perfon, and very well difcharge their Oath, the Law, and a good Con- fcience, letting it pafs from them with the Indorfment of BiUa ve- ra^ a Bill that hath truth in it , fit to be confidered further by the Court and another Jury. And as IndicStments at the Kings Suit do fucceed Appeals , at the Sarties Suit, fo ought they to be rawn and prefented as large and as %11 for the King , as an Appeal of death for the party , which e- ver was for Murther (if the party Appellant would fo nave it) and that may very reafonably be ap- plied to Indidments that the Statute of Gloucefter diredrs in Appeals, viz. That no Appeal fliall be abated fo foon , as they H 3 have S6 2,Wit to <^itim 3iutoig have been lieretofore : But if the ^E.1.9. Appellant in an Appeal do declare the Deed, the year, the day, the hour , the time of the King, and the Town where the Deed was done, and with what weapon he wasflain, the Appeal Ihall ftajfid inefFed. Now fo great an exadnefs of the year , day , and hour , is not required in an Indid:ment, as in an Appeal (being the only violent profecution of the party) in fa- yoMj? of life , many Niceties were Hood upon more than in other Ad:ions. And Mr. Juftice Stam^ ford fay Sy A man is not of neceili- ty compellable at Common Law at this day , to put into his Decla- ration the hour ; the day wasne- ceffary to be put down in an Ap- peal ; for if the Appellee can prove by certain Demonftrations and Teftimony of credible Wit- neffes, that he was the fame day at another place, at fuch a diftance as it was not poffible for him to be there the day of the commit- ting- mCnfeg of 0510011. 87 ting of the fad: , or twenty miles off the fame hour the murther was committed, the Appeal iliall abate. Yea, fo many were the Niceties of Appeals , which for- merly were in ufe , not only in Murther,but in all cafes of Felony, and fo full of Bribery and corrup- tion in the eafie compofition of all fprts of Murthers and Felonies, and did fo much delay the Kings profecution by Indid:ment (^which was not to begin until the year and day pall , after fuch Felony and murtner} in which time com- monly the Appellant grew flow in his profecution ," and was many times agreed with , and by the end of the year WitneiTes were dead and gone , all was cold and forgotten, asalfo that the Appel- lant muft fue in proper perlon , which fuit was long ^nd coftly , and made the party Appellant weary to fue. For remedy whereof the Sta- tute of the third of //. 7. was 3 H.7.C.1, made , That the King Jhall not H 4 fidy 88 anftice to ©ianti 3Butpi0 flay until the year and day were fafl^ hit proceed at any time after MURTHER. the Murther committed ^ as alfo. that the Appellant Jljall proceed in ht6 Appeal by Attorney ; ( all helps the Law could devife to prevent delays in cafes of Mur- ther , and to find out and punifii the blood-guilty perfon) obferve the penning of that Statute (were there nothing elfe to be faid in this Argument} how neceffary it is that all Indictments be made Murther^ that are brought at the Kings fuit within the year and 9H.7.C.1. day (as the King by this Statute is enabled to do, the words where- acy^ of are as foUoweth , And if it happen^ that any ferfon named as -principal , or acceffary , f;e ac- quitted of any fuch Murther at the Kings fuit within they ear and the day^ that then the faid Juft ices fljall not fuffer him to go at large^ hut either remit to Gaol , oY Bail him- , at discretion , until the year and day he pajlo And furtlier in the faid Statute it is faid. in CafciS of 051009. 89 If the MM R T HE RER efcafe the Town Jh all he amerced), as alio, that the Coroners /hall return their Inquifitions before the Jafti-' ces of GaoUdelivery ^ and they /hall proceed againft fuch Mur* therers ; and as it is before in the faid Statute , The King /hall not ftay until the year and day were />afiy but proceed at any time after the Murther committed: So that Qfrima facie') the Statute looks upon all Manflayers (unlawfully) to be guilty oi Mkrth^r, And io the Indidlment ought to be drawn , of they cannot be continued in Gaol , nor Bailed by this Statute until the year and day be out , nor the Town amerced for fuch efcape,. nor the offender proceeded againft by the Ring, within the year and day by Indidrment. Now generally (in thefe days} fince the making of that Statute,, all proceedings in Murther and Felony are by Indictment at the Kings fuit^not but that the profecu- tion by Appeal is ftill in force^ aind ^ ' ^- the 90 aoBfce to ©lanti aucojis the party hath his election which way he will proceed , either by Appeal at his own fuit , or by In- didrment at the Kings fuit ,• yea, even after the Trial had by the Kings fuit Qn fome cafes) although at the Kings fuit they have been acquitted of the murther ( but that the abufe of thefe and many other obfolete Laws) hath taken away the frequent ufe of them ; except it be through the mifcar? riage of Grand Jurors, and Jurors of life and death, in cafes of mur- ther, the one in not fully prefent- ing the murther , the other in not confcientioufly giving a Verdid: according to their Evidence , and thereby provoking the party (whofe Relation is flain ) to the nice and chargeable remedy of an Appeal; upon fuch Appeals fe- veral have been executed after they have been acquitted by trial at the Kings fuit upon Indid- ment, one Woman in my time in Berkfhire ^ for petty Treafon for killing her Husband , after Ihe had mCafegof TBlooD* 91 had been acquitted for the fame fad: at the Kings fuit by Indict- ment , was convided upon the Appeal, and burnt at a Hake. Look how high the Appellant flialldraw his Appeal againft the Appellee or Defendant , as if for Murther ,• in this cafe, if the Ap- pellant fhall furceafe to profecute luch Appeal, asbyNonliiit, Re- leafe , Retraxit , the Woman by marrying a liushznd^f>endente lite^ or by the Ad: of God , as if the Appellant die , or by the Ad: of - the Law, as if the Appellant take the priviledge : Now in all the former Cafes , where the Appeal ceafeth by the Ad: of the Appel- lant Qhatis, he that profecuteth the Appeal, after declaration in the Appeal) the Defendant fliallnot go at liberty, but fhall be Arraign^ ed upon the fame Declaration at the Kings fuit, for that it doth ap- pear by the Declaration there is a Murther committed, and the year, day, and place, when , and where the fame was committe(^ , and the "■'■' ' ' fame 9^ atJ^tce to flJ^ana 3!utojiBi fame is' not tried • and the Law will not allow fuch great Offences whereof it taketh notice ) to be concealed and remain unpunifhed, neither will the King at his fuit fuffer it to be extenuated into a lefTer degree of Murther, than the Appellant did : fo careful have the Laws ever been in puniftiing of Murther, and revenging Innocent blood, which it feems (and as be- fore is obferved} whilfl: Appeals were in ufe, and the Kings fuit muft ftay until the year and day were pad, many Murtherers e- fcaped unpuniflied, and the killing of men was made (as now it isj a trick of Youth , Valour, Hecto- ring , and Jeft , in regard of fo ^reat impunity it found, by fre- quent Pardons , Indulgence of Grand Jurors, and others. And truly , it is much with us in this Age , as it was in thofe dales when Appeals were in ufe, and had the preheminence of the Kings fuit ; Never more killing of men by Duels, Tavern, and Game* Game Aoufe Quarrels, and yet never more impunity to fuch Man- killers, fuch valiant murtherers of their fellow Chriftians, efpecially if the Mankiller have either a fame for Honour or Valour, Mony, or Intereft of Friends , to pro- cure pity, or pardon and com- paffionfrom the Grand Jury, to rind it Manllaughter (if they will go fo high} where it is Murther, and then (through that falfe glafs} to reprefent it to a moft Mercifm King , and thereby obtain a Par- don for the whole offence ; or elfe, upon his Arraignment fhall con- fefs the Manilaughter , and pro- cure a refpecSt of his burning in the hand (becaufe a Gent-hand killed the man} and afterwards procure a Pardon for that burning la the Hand , which the King may grant , it being no part of the Judgment, but a notifying the Perfon , that by that Mark 1^ may be known again, once to have had his Clergy, that he may not have it a fecond time. Many 94 a&bice to ^lano %moi& Many Recent, and frefti Inftan- ces (in particular Cafes of blood) might be given (were it fafc or feaionable to make reflections ) of divers Murthers , that have too eafily flipt through the hands of Juftice , by the averfnefs , igno- rance, or partiality of Grand Ju- rors in not obferving the dirediiori of the Judges in this particular of finding Bills Murther , inftead of Manflaughter , yea , and that many times upon dire(3:ions given in Court, after open Evidence, which open Evidence to a Grand Jury (efpecially in Cafes of blood) ought to be avoided as much as may be , in regard it doth too much lay open and betray the Kings Evidence , to ftanders by, it may be Friends of the Prifo-^ her, that may make too much ufe of it for the benefit of the Prifoner, and prejudice of truth ; befides, many Witneffes, although upon their Oath ) will not fpeak fo fully in Court before the Bill* found, and happily in the prefence of in €dfe0 of iSIooQ. 95: of the Party, or his Friends , as ia. a Grand Juries Chamber ; more private befides, where it is before- hand known, what witnefs-pinch- ing endeavours will be ufed to keep him off, or by fome finifter way to be complied with to leflcn or hinder his Teftimony to the fecond Jury (if there be occafiOn) befides, the Kings Evidence (be- fore IfTue joyned betwixt the King and the Prifoner) is alwaies to be fecret, only* open to the Grand Jurors , who are alwaies ftyled , Juratores fro domino Rege , the Kings Jury, arid are fworn to keep the Kings Counfel, their Felons, and their own: now the Wit- neffesforthe King are faid to be of the Kings Council, which would abate much of their Oath , if E^ vidence, and the Kings Informa- tions ( in Cafes of Bloud } ftiould be open and common. And as you have heard , what great Inconveniences were in the ufe and abufe of Appeals in the Reign of King Henry the Seventh, 96 aoiJice to ©lanu 3Iuroi0 fo indeed as many (if not more Inftances of mifchief and incon- venience might be given of Grand Jurors in this Age (^the beft things corrupted proving the worft) you may conceive what great com- plaints have formerly been made againil Grand Jurors in Parlia- ment in erring upon both hands, by taking too much liberty to themfelves, and not obfcrving the diredions of the Courts that there was a neceffity of making an Ad 9 H. 8. ^f Parliament, in the 2 H. 8. (^immediately after Appeals began to fall off) as you may read in that A<9: of Parliament made to reform them , and to reform the Sheriflfs jpower in retorning them ; the whole Authority of retorning Inquefts (to take IndidmentsJ being by force of the Statute of the X I /?. 4. in Sheriffs and Bay- lifFs of Franchifes. It is obferved by the Statute of the j of H. 8. • ^ that by reafon of Bribing of She«- riffs, and their Bayliffs and Offi- cers , many true and fubftantial perfons^ jjerfohs were divers times wrong- iuliy indicted of Murthcr, Felo- nies , and other Mifdemeant>urs , to the utter Idfs of their Lives, Goods, and Lands. And fometimes alfo great Felonies and Murthers were concealed, and not pre-^ fentedby the Grand Jurors, par- tially retorned by the Sheriffs or their Minifters ,• for the preven- tion whereof, it was eftabliilied by the faid Ad of the 5 ^. 8. That all Tannets of Grand Ju- rors^ fut in by any Sheri^ before ajtyjufiice of Goal'dekveryy and yuftices of Teace , one being of the Quorum , in the open Sefjmts to enquire for the JGng , Jhall be reformed^ by pitting to^ and taking off the Nar/ies of the per [bus which fo be impamteUed by every Sheriff^ at the discretion of the faid Justices , before "whom fnch 7annelfhall be retorned ^ and the. Sheriff upon pain of twenty pound Jhall allow of fuch Tannel ^ fo re- formed and retorned by the J uni- ces ^ the one half to the King ^ the I other Qthertohnn that ^jdiU Jue for the famfy and the Kings Tardon^Jhall not be a bar to bi^ ^art that [a [ties. So careful were the Law-? makers to have faithful' Jurors , that Ihould neither accufe the In- nocent, nor excufe the Nocent^ and that efpecially (in Cafes of Blood} iTiould make no conceal^ n)ent. And left ail this, care and re- formation of. Grand Jur^prs Ihould. do no good, but that they iliould fall elpoufe their own opinions , and make head againftthe Court,, and wilfully conceal Offences they were charged to encjuire of, thqre is a Statute yet in force, 3 H j. tj-c^csaCu.^ in which it is ordained', That ' ^'^^ ^%/?/'rf j- of. Teace may Qin their dijcretions^ cattle an Inquefi to be Impamielled ^'to enquire of the cojicealments of other Inqncjls takenj^efore ,the7n^ of- fiii;h 7nat^ tersandoifences a^s. are to be e7i^ quired and p'efented before Ju- jtices of Teace ^ h^hereof com^ flaintJhaUM made: And if any. ^ conceal^ . a H, *?. Cuficealfnefit Jhall i^ found ..- :.n^ ' BiMeft 5 'Withift one year after thy faid coitcealmefit^ every ter-' fin of the faid inqueft ^ that' ,fnade jiivb concealment^ flj all be amerced oy fiited at the dif: J'nf ices of /Peace A- fnerciarh'ents fo a[': ''-'; Seffdns: And theje .. \0 Fines may be very . ■'■ cdrdlkgto the HatMre cj -i^De Con- cealment and quality of thp per-' fan. This_Statut€ .onl ; :: ,rnis_ and rem edies Concealments by tfie PeaceJ^aFffie^iffiSnsIoF^ °7eSce^_a§ conceiving Grand Jurors \jQu!d be bolder there^,_and^ take, moi^ Jibeitj^ in their Prefent^^ ffice?of Ai]i2e_^_Ojer_^_and T that iuchjuflices andjidges & new^ theJMmdeaiivlucIi ^ conceal ments^ ol^iniipnlioii^foi^e them: For tae_Grand jurors, bein^imirieai- ate and liibordinate Miiiifters and GQ I 2 'iiS:ei^ officers in, and to theCoy rt, and anfwerable for their Duty there ^ as Coroners , Conftables , and o- thcr Minifters of the Court, they may and mull (land to the Judg- ment of the Court ; and in cafe of any wilful contempt, mifde- meanor, and concealment, may, without Indidiment , ( for how can they be indicated at the fame time by themfelves) be finedLby the Court, as any other Officer and Minifter of the Court. And let Grand Jurors take heed, ifeft by their remifnefs and pee- vilhnefs, they give not occafion to the making of the like Statute nH.7.c. 5. as was made in the n. of H. 7. £^/v^^.^iu,^; c. 5. upon the furmife in the Sta- it*/. . ^ tute , That "whereas many great Offences^ as Riots ^ unlawful A^-- femhlies , Extortions , Mainten- ances , Imhraceries , and other OWenceSj^ could not be^ dulyjpnnijh" ^^^j]^illi^^jQvder^^^^^^ Law, , -^pccept^it wetr^rjlf^und y^^tW^^^^^^^]/^//^^^ ^y^tlofVerliB ^Twelve ■ A^VA . ^en lh£[^^ip^}^b_^^^ i "^^iih r " ^ ons Grand Jurors nad then given / ^ ^' through their negled: } It was J^^^^ ^ .^^4^ therefore provided and ena(5i:ed by ^^ ^^^ ^ _ this Statute, That "Jufiices of Af^ '^'^ t-^ *- > £ze^ andj^uj^kes^f^eace^ upon information for the IQng ^ that is meerly lyjon^theJTeffim^^ Wimeffes^ j^it^u t Jndidment^ or ufe of Grand ]\xxor s^Jhould_ ^/w^^^,^^^. j2'^octed^to make out^Prqce^^ f/fr- nifh^ ^jd Condemn Offenders^ hj^ ^Jheir fpifcretion^ as^ were ^PS^fijdiBments found by Grand ^^r^rTT^'WhicH Statute v^as a I great Infringment of the Common \ Law , and the Liberty of the Sub- 1 y^Oioi England ^ who ought not by Magna Chart a ^ and the Law | of this Land , to be proceeded ar ij gainft, or condemned in their Per- ibns or Eftates ( in Criminals ) but by Indidment firft had and found againft them by Grand Jurors. It is true , that Treafons, Murthers , and Fefonies , and fuch Offences ( for which life and member fliould I 3 be ^mkt to ,#^iui3.3!ui;oi0 be loft } are excepted out of this Adt (although they ftand upon the fame Reafons as the other Offen- ces named Id the Ad:}. For by this Adi and new Law , the Sub- ^edt iXiight lofd his. Liberty, fuifer Ranfom 5 Stigmatizing , Pillory , Imprifonment, lols ot Lands and Eft ate r tilings very near to Life and Member ), And -the • Lord Cch tells us 5 777^^;^ Empfon and Dudley (t'wo Judges Q%y reafo'd of ihu A5i ) committed Mj?on the Sub'jcEis insufferable O^f re fjions : and therefore this Statute wasjull- ^^n^^' fy Repealed after the Deceafe of ^^^ B. 7. by the Statute of thfe x . of H 8. r,6o A good Caveat to 7ar- Uaments (fays the Lord&if J. ^;t> leave 'all Causes to he measured iry the Golden Uii4 (freight Mete- wand of the LazVj and not to the \ uncertain and crooked Cord of T)i[cretion, And as good a Ca yeat it is to Grand Jurors in ca . fes ofBioocij not fo much to be led by t;he crooked Cord of Difr cretionj is the ftreight Rule of th-r In Catc0 efl5lo0B. io^ tiie Law , and Direcfiions of the learned Judges , who fnould bell know tne Law^ and the trueft meafure thereof: For if the Rule be true- Tas indeed it. is ; Qtwd nihil reliEium eft arbiirtojudicps') that nothing is left to the Will- of the Judge , much lefs , arbttrio JuratorUrn , to the will of Grand JurorSj they, having been (through too much eoniiivance ) by an ^evil praffice^ corrupted herein B-it err ores adfiia^ princifia, : • ^ efi refellere ^_ To bring Err::: ro their beginning, is to fee tiieir laft« N0W5 hapiv Grand ",/: . may conceive , and argue tiius, :z^//?" • ?f> extenuate an Ojfefice^ t6 not to concealit-^ if^he'^undit not Mur^ ther 5 yet tk ['mie de-^ gree of Mauuaugijter^ ©r. Be- fides^ if the Kmgr "-:-;:■ -^ ^tU pd zfitothe Ind^B: : /.ords - Q Ex malitia pr^:-- a, See. } "which oniA; make it Murrher^ and which is matter cf I^-y^ . they mufinmke it (mt^to -us, -here . , , - , I"4 mas . iP4 a^iice to ®iam %wtoi& wa^s malice^ either from our own knowledge of it ^ or that it is clearly proved to- us from words or deeds exj>reJS^ by fuch an a£ij that lies iyi-^rocf ^ or we are not hound to fnd thofe words ^ but muft fir ike theyn out of the IndiSf^ ment^ or find an Ignoramus ; Or if the IFitneffes themf elves Jhall inform m ^ that it was a fudden falling out , or done by misfortune^ Se defendendo , /;/ his own de^ fence , or to defend himfelf againfi one that would have robbed him^ in his Houfe^ or upon the High- way ; or that he that did it was a Waichman^ a Con f able ^ or law- ful Officer^ or Keeper of a Tark or Warren , and in doing his Z)//- ty ; or that he that did it wa^ a natural Fool^ one not Compos men- tis, a Mad-man^ or a young Child that did It ^ and by his young and tender years not capable of malice^ and fo could not be guilty of Mur- iher ; or if there had been former fallings out and differences be- %wixt them^ yet all was recon<- ciled^ in Cafc0 of TBloaJ^ loj filed ^ and they good friends ^- gain , and this only a cajual and [udden dijference betwixt them ti^on a new occafion , and exceed^ tngly provoked unto it by him that was (lain , fo that we cannot be Satisfied to find it Murther in any of thefe cafes y befng ufon our Oaths to make true inquiry , and if we find not the malice ^ being matter of Fa6t } another Jury can- not try it. Sefides^ wehaveforr mer praBice of our fide , other Grand Jurors have had ^ and ta-- ken the fame Liberty , and why fijould not we ? The Judges like- wife^ in th^ir Charges inform us of all the fpecifical differences in Manslaughter^ which we conceive they intend we fioould take notice of as it comes in proof before us , in our Inquiry. This, I con- ceive, is as much as Grand Jurors have faid, or can alledge for them- feives (where they are not po- fitively partial , and go clearly a- gainft their Evidence } why they do not , or will not ( for fuch is fonxe i.9§ atiijfce to ©lantJ j.mQi& fome Qif their Language ) jfind it . Murther in all Cafes, as the Court direds 5 and as the Bill of Indid- jn^nt is drawn andfent to them as the King's Declaration. To latisfie thefe reafonings and xbiftakes ( though fufEcient hath be^a laid already to fati^fie a wife axidfober Grand Jury-manj efpe- cialiy ina Cafe of Blood, which can Ecyer receive too ftridi an In« quifition by .a Grand J^ry , the firft Inquifitors of it in Court) let them obferve, that neithei: themfelves, nor the party accufed, can be pre- judiced by what they fliall fo find , be it "never fo- high ; Firft , not themfelves ; they do but pre lent a probable AcGufation (no Convi- Ctioa ) againft fuch a perfon that hath had his hands in Blood, hath kili'"4 a,' ^^n y is K/r [anguinis : And hqrs certainly it will be the beft fetisfad'ion toGenfcience (and that is the bell Friend we can fa- tisfie) tohave all the Circumftan- ces of the Fad ( as they are laid in the Indictment } to be iriore ra- dicially In Cafes of 151000. 107 diciaiiy and circumfpedtly examin-. €ciV"iiited^, and tryed out^ by ^- iiother Jury^ by a Learned Judge^ in ■ a pubiick Court J ■ to the parties fk^e, ' where the King's Witneffes ^ and the party himielf^ aad..his: Wit^eiTes ^ may be fuliy heard^aad ■ th0 whole matter fiiily tryed and debated ,' which cannot be done in a Grand Juries Chamber^ butisal^ together {^ -> :' -ad obftrucfted^ if thS Grand . Jurors iiiffer it not to come to this Judicial Teft and Try- aij hup fliali put out the wordsj Ex. malitiafr£cogitata^ or othervvdfe alter theKing's^eclaratian and In- di^ment^ which already hath .had proceedings in it ^ and that in 'jrt of Record ^ where* it - hath , :tr. advifed by the Kings Coun- cil upon peruiai of In&rmLi.::::^ ' ^ nxamin , ^ from Tufticis ;i Pe."^"Le *" ^ ^ ;:"r^ in that .Cafe ^ertifed Jourt^ and iipoii xriGg h3 Profecator and his ^A^itneifes^ and fodrsv/n and pre- fentqd to ^ • the • ■ Goiirt ^ Witneffes • l^yprii to it, and Indorfed^ . JunaU - io8 at>Wccto©?antJ3!utoij8 in Curia , fworn in Court , and fo become fomething more than an ordinary Declaration or Wri- ting in Parchment , to be altered by any, without advice or diredti- on of the Court ; for if it might be fo, the King's Council and their Advice ( together with the Judg- es in fuch Cafes ) would fignihe very little in drawing or advifing any Indictment of Murther, if Grand Jurors in their Chamber may ( from their own advice) al- ter it as they pleafe , the Judges themfelves being as well con- cerned, in Confcience, to do right to the Prifoner and Party acculed, as-Grand Jurors can be. And al- fo admit that the Witneffes fhall inform the Grand Jury that it was a paffionate and fudden falling out, oV 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 faw, or heard, or believe ; they are in the Affirmative only , and can prove but for that inftant the Facft was done ; in Cafes of OSIooti^ 109 done; they dare not fwear that there had been no falling out be- fore : and as they cannot, or hap- ly will not, prove an exprefs ma- lice, fo neither can they fwear that there was none at all, or not fuch a malice as the Law implies ; nei- ther can the. Witneffes judge in all Cafes, what is Manflaughter at Common Law, what upon the Statute , what fer Infortunium , what /i* T^efendendo ^ what is Ju- ftifiable , or what is Murther : neither indeed in all thefe Cafes, can' the Grand Jurors, nor is it convenient for them to judge of all the fpecifical differences , each Circumftance may fo much alter a Cafe ; and will they then , by their uncertain Judgments, in cafe of Murther, conclude and preclofe the Court, and detei:mine the Law, that this Fad of Blood fhall go no higher than they pleafe to adjudge it ; as in the cafe put of a Child that kills another, not the Grand Jury ( who fee not the Child ) but the Court , and the the other Jury iliall infpeft the Child 5, fliall judge whether the Child couid do foth an Ad^ fel- leo animo^ €5^ Mdlitia fraecogita' ta^ and fo be guiity of Malice and Murther ^ tfe Courts ancJhot the Grand Jury^ being to judge; an mntitia fiippleMt matem^\v^''' ther upon hearing him fpeak , he may be thought capable of maUee. ( as fome at more tender years are than others } fo in the cafe of a Fool^ or a Lunatickj a Dumb or' Deaf fieffoni fo ifi the cafe of a Reeoncilement after afaUingoftty and then a killing * can either Ju- rors or Witneffes ^ or any that hears but one fide, ftate the cafe aright^ or judg^ whether the Re- conciiiatib/} were perfect or not, fo as to take away all the feeds or mahce , revenge ^ or difcontfent ? And Mr. Juftice Stamford hyks^ That thofe that are TDumb' and Mittt^ and InfantSy fiall he dif^ charged u^on Arraignment.'Whic^t. ihews that they are tobelndic^t- . ed of Murther t But how fliall they be ., m€tmot%m^. 2 2 2 be Arraigned, when they cannot hear, or ipeak, and plead ? I con-« ceive by the Infped:ion and Judgn^ ment of the Court upon their Ar« . raignment , I mean^ upon the In- didment found by the Grand Jmy • whkh plainly ' fliews that the Judges (^not the Grand Jurors ^r ara Judges-: of: the Law ^, aiKf of what ftali- be. Murthen So in the cafe of killing a Thief that attempts to Rob or commit Mur- ther 5 (which is juftifiabk ) this muftjudicioufly and certainly apr« pear fo u^on- the Tryal ^ that tie ' Court may judge whether there were' an intention to "Steal 5 or to commit Murther ^ or Rape ; and not let fueh z- Surmife only ^ Tkat there was no [mh- int'emtion^: ^. lelad the Grand Jury to- acquit him^-^ when haply there wasXucli: • inreM- tion. And the Statute of the^s;^ of H. 8 . faith , That the ■ "Partjp: IndiUedor^ JfpeaPd' of pich'^dp ftnce- for- killing: a Thief... or me th-aP. intended; to- Murther f ^: VerdiB-^ fo fotin^jmitryeS^aW' % J 1 2. aoftice to ©laitu autojjs not loje or forfeit Lands or Goods i but Jh all he dif charged as one acquit of Felony \ ana none can he acquit of Felony that k not tried for it ; the doubt being before this Statute, Whether he ftiould for- feit his Goods and Chattels as one that kill'd another by Chance- medley? Sd that there wal5 no doubt but fuch a one was Indict- ed of Murther before this Ad: , as one that had kill'd another by Chance-medly muft, and yet is to be Indid:ed; Chance-medly being Manflaughter at Common Law. Sure in all thefe cafes , and all other the like cafes of Blood , it is moft prudent and fafe for every wife and confcientious Grand Ju-* ry-man ( that is fatisfied there is Blood fpilt, and the life of a rea- fonable Creature unjuftly taken away by fuch a perfon charged irit the Indidment) rather to prefume it probable, all other Circumftan- ces may be true , as they are laid . ill the Indidment ( fo far as to make fnCafegof OBIooe* uj make an Accufation againft a guil- typerfon) then that they are not, and fo to leave it fairly to the Court to judge thereof, and them- felves free from the imputation of Blood by concealment; and there- by put the whole matter, with ail its circumftances, upon a moft legal and impartial Try al , many times that appearing upon Try- al that appeared not before. And the reafon why a Petit Ju- ry , or Jury of Life and Death , inay extenuate an Offence , and make it lefs than the Grand Jury^ is becaufe ( Hearing of both fides} they may inquire of Circumftan- ces which a Grand Jury cannot.Bei fides as the (P) Lord Coke^ informs (that Oracle of (0 Goke3.inft.fol.2^. theLavv) Jn hJif ^;J?1^^^:,'|^^^^^^ ment is no fart of the Stamford l.2.fo}. go, Tryal , hut an Informa" iion or Declaration for the King • and the Evidence of JVitnejfes to a Grand Jury ^ is no part of the Tryal: For by Law the Tryal in that cafe is not by Witness ^ but K by 1 14 90»fcc to © jantJ 31uto?0 hy the VerdiB of Twelve men^and fo amanifefi diverjity hetweenthe Evidence to a Jury^ and a Try- alhy a Jury, if the IndiBment were fart of the Tryal ^ then ought he that is aHoble-man and Lord of Parliament , t9 he Indi* Bed by his Veers , for the Tryal of him ought to be by hi sheers; but the Indi£iment againfi aTeer of the Realm is always found by Freeholders , and not by 7eers. The French word Enditer fig* nifies in Law, an Accufation found by an Inqueft of Twelve,or more, upon their Oath; and the Accufation is called IndiBamen* tum. And as the Appeal is ever the Suit of the party , fo the In- didment is always the Suit of the King, and as it were his Declara- tion , as the Appeal is the Decla- ration of the party. Some derive it from the Greek word ly/^^yi/W, to accufe, and as properly may it be called IndtB amentum ab indi- dicandoyquia aliquid notum facit di<€ndo^ dicendo ^ he that Accufeth orAp*- pealeth another man, or brings his Crime into queftion , indiiia^ tus^ quafi indie atiis ^ one that hath his caufe fliewed out in pub- lick,- (^deferre nomen alicujusyjm dicare ) to Indidl , is to Accufe or Impeach. It fignifies in our Common Law as much as accufo^ tio in the Civil Law , though it have riot the like effe(!}:: Acci4^ faiilisy i. e. dccufatione^ out re^ ^rehenfione dignus ^ on^ worthy of Reprehenfion. An Indidrment being like the precious Stone of India , called Indica , which Q as ^liny notes ) in rubbing it break- eth forth into a purple nveat : S6 doth an Indid:ment of Murther ^ which though it feem white and pale in the Grand Jurors hand^ , afterwards by rubbing and preiP firig hard in Court, breaks out into a purple or bloody fweat ( as my felf have very often feeri ex* E'erienced, when Grstnd Juror^ ave many times niade great fcnF pie e?€n to filid thfe Irididmentat 1^ all) ^;jr4 ^Wit to ©lanD 33uiois; all) what comes from the Grand Jury is more properly called a Pre- lentment. lor theconftant form and words in all Bills are, Jura- tores ^ro 'DommoRege [u^er Jacra' mentum fuum ;^ra[entant; obferve, they are ftiled Juratores fro 2)o- mmo Rege only ; nor can they be otherwile : for they are to hear none but the Kings Evidence, up- on his own Declaration ; And whoever is to advance (as the Grand Jurors are ) but the Inter- eft of one fide , ought as ration- ally to be permitted, to raife and advance it to the higheft pitch ( that by any reafonabk prefump- tion it will bear) as the other fide have liberty to extenuate it to the loweft degree and mean that art and cunning (which in thele cafes of Blood are feldom wanting ) can bring it unto ; the one being upon an Accufation againft a criminous perfon , who hath had his hands in Blood , and is certainly guilty in truth of fomething in the crime he is accufcdof: The other only rv^.:^. upon m Cafes of 'Blooa* 117 upon his own excufe, who can never ( upon the whole matter ) €xcufe himfelf, a toto ^ from the whole Crime of Blood. If they are fatisfied that it is an Offence a- gainft the King's Peace, his Crown and Dignityiandthe life of another perfon,- it is enough for them to prefent the whole matter to the Court , as the Court hath dired"- ed and advifed the Bill to them : For every Bill of Indidrment, ^that is formally and legally drawn up , is prefumed to have been feen, ad- viled, and directed (as before is faid ) by the Court and the King's Connfel, upon an Information of theFa(5t taken by them fix fasforthefubftance rO rk Judges did ad~ ^r-i ' ^ J C4. 4. u vife in dr&wing the Indt^' of It, IS meet and fit to be J,, ,^,,.,^ Leak, 4 K f)UtintO fuch formal and Coke5.Inft.TiE.Treafon, egal terms for the King) ^°^•^^• as it is by the Judges fent out of Court to the Grand Jurors ; it being a common pra<5lice for the Judges (according to the matter of Fad) to direct upon what Sta- tute and Law, and in what man- K 3 ner ner and form the Indictment ftiall be drawn and fent to the Grand Jury, that if they find only pro- bable matter contained in it of accufation in any kind , they may fo prefent it to the Court, as their Prefentment or Accufation; the word Trefentment coming from the Latin word "Prafentio ^ to fmell or fcent before , frafentire in foflerum ^ to have a fenfe of that which is to come : fo if they have any fenfe or fmell of Blood in the Indictment, it is enougfi for them to leave it to a further queft of what fliall come after: the Grand Jurors being like the good Huntfman, that.obferving where the Hare hath lately pricktj^, or the Deer lately ftruck , or hatHT" dropped blood, lays in his Hounds, and leaves them to make the dif- covery : fo indeed fliould the Grand Jurors do the Jury of Life and Deatli, in Cafes of Blood, and that the Blood of their fellow Chriftians. And thence likewife the Grand Jurors Prefentment is called fnCafegof TBlooo. 119 called an Inmifition ^ and thcm- felves Inqtiijiiors , fronn the Latin word. InquirOj inquirer e.^ quod vulgo dicitur facere Informatics fiem^ for every Inquifitor is as an Informer, a promoter of the Ac- cufation to the Court , in the be- half of the Ring , that it may- be more judicially enquired into and determined , which is much like a Citation of a perfon into the Ecclefiaftical Courts for a pub- lick fame , which is either ht to be enquired further into and pu- nilhed , or the party purged or pronounced Innocent : or like the Matters of Requefts to the King (Honourable perfons} that view all Petitions and Complaints be- fore they be prefented to the King, and determine what are fit to be prefented unto the King, and what are fit to be rejected. A ftrong Sufpicion , and the Fame of the Country may (in many cafes) be Evidence fufficient for a Grand Jury to find a Bill ; and here I will leave to the ob- K 4 fervation I z® ansicc to ©laiffl 31tttoi0 fervation of Grand Jurors, what I find in Mr. Juftice Stamfords Pleas of the Crown , and which he himfelf obferveth out of Brae- ton , a very ancient and learned Lawyer, as Br acton's order in Cafes of Sufpicion upon W Braaon'5 ordir in le Indictments of Felonst^w) ffia:"St,:?;! de [ecu Regum. The pdYagY.i.joLi^l. Sizmi. words are thefe. Nunc f^^'^^' autem dicendum eft de Indictamentis fer famam ^ atria ^ qnum ^raftimftionem in- ducunt^ % cnijiandum eft- donee in- dictatus fe a tali Sufficione pur- gaverit; ex fama qttidem oritur JkfficiOy ^ ex fama ® Sufficione orititr gravis fr/efiimptio, Tamen frobattonem admittit in contra- rimn five pirgationem , Sufpcio quidem multiplex effepotefi^primoy jfifama oritur aptd bonos @ gra^ ves. Item ex facto pr ace dent i ori- atftr fufpicio cui etiamftandum eft denecprobetur incontrarium^ t3c. and fo goes on , to let us know the feveral badges and marks of Suf- picion^ advifing, that thofe th^t will in€afcj3of XlooJ^ ixi will take Publick fame for an EvI^ dence, take it fromthofe that are of good Fame, and not of evil perlons ,• as he goes on , Non de malevolis ^ makdicis , [ed fro- vidis'^fide dignis ferfonis ^ non femelfed fafius J quia clamor in • nuitj S defamatio manifeftat; Tu-- multus enim ?^ clamor populi^ qmndoque fiunt de multis qua fa- per veritatem non fundantur. Idea vana voces ;populi non junt atidienda , ut ne dicatw Jefas crucifigitur^'^zr^dLsautemliMra' tur. The Avhole Chapter is well worth the reading. And it may not be amifs to ob- ferve , that the ancient forms of Indidiments or Bills began thus, Inquiratur pro domino Rege , Let it be enquired of for our Sove- raign JUord the King , as the of- fence is laid in the Indid:ment, whether the offence be fo (as is there fuppofed ) which is as much as if the Grand Jury fliould fay. We judge it ft that it be farther enquired of ^ wh^thsr it k^ truly - ■ ■ ^ y^ I %% atibice to (^^anti %^iv{% fo indeed ^ as it is here fuppofed ; for the Offence, as it is kid in the vlndi<9:ment , as it comes from the Grand Jury ( before it receive a farther trial and enquiry of ano- ther Jury) is no more but Crimen fuf^ojitum ^ imfofitum^ an offence fuppofed and laid to ones charge to anfwer; and this clearly ap- pears by the Record of every Ac- quittal or Convid:ion of any that is tried upon an Indictment ; for the words of the Acquittal or Con- vi(9:ion (^ as they are drawn up in the Record ) are thefe, vi2^, Ju-- rat ores (that is to fay, the Jury of Life and Death ) dicunt fuper Sacr amentum fuum , quod fradir Bus A.B. fion eft Q vet eft^ Cul^a^ bilu de Felonia @ Murdro fne^ diB. in IndiBamento frad. Jpe- cificat. ei fuperius imponit. modo ^formaprout per IndiBamentum prad. fuperim verfus eum fuppo^ nitur : lo that fupponitur i3 im- ponitur y fuppofed and impofed, is all that can be inferr'd from the Indidment ,- the Grand Juries . Pre- ffiCafcsi of 051005. 123 Prefenttnent (upon hearing of one fide) being the Sufpqfition^ land the other Jury (upon hearing of both fides) the Jmpqfltion ; or Sufponitury and that relates to the fuhpance of the Indidlment , as the Grand Jury fuppofeitto be • the Imponitur , and that relates to the modo ® forma of the Offence, and the circumftances of it , as it is laid in the Indi(9:ment , as it is found by the Jury of Life and Death; and thefe Circumftances indeed are the proper enquiry of the Jury of Life and Death , upon the hearing of Evidence on both fides, as appears clearly by the penning and drawing up of thefe P^ecords , and all this is no more than in every commorHDeclara- tionat the fuit of the Party , only this Indictment \s as a Declara- tion upon Oath^ and muft there- fore (^for the fatisfadion of thofe that are fworn) contain, that which for fubftafice feems to them Q^rima facie ) to be a probable truth 3 and a tranfgreffion of a r' :. V ../ : LaWj - 124 asftfce to ©jantJ 3luco20 Law, not ftric3:ly looking into the matter and form, aggravations and circumftances of the Fad: ( as it is laid in the Indidment ) for thofe do but attend and uflier in the Fadt; but Grand Jurors are principally to eye and look upon the fingle Fad; and ad it felf, and finding one that hath had his hand5 ip blood , and that probably (upon a farther Enquiry) may be- come, reus , a guilty perfon , by killing of another perfon , they are to put their Billa vera unto it, although they have no proof at all of the Aggravations and Circumftances that attend the Fad: (Evidence many times ari- fing out of the parties own mouth (againft himfelf, upon a ftrid examination in Court) more than the WitnefTes againft him have proved-) And it is well obferved m theBook called,7i&^ Terms of the Z/^'ze^,upon thefe two woxAs^Billa vera^ where it is faid , that Billa vera is the Indorfment of the Grand Jury upon any Pj^efe^itment or inCafc0 of 051000. izj or Indictment, which they find to be probably true , (mark thefe vjQxds) probably true;noT do I take the Adjedive Vera in this place to figniiie TruCy but meet , reafon^ oTfit y and fo it is often ufed in Terence y and by the Grammarians, Venim eft , it ufit : fo that Billa vera upon the Bill doth not figni- fie, a true Bill^ that hath nothing but truth in it , but a meet , oiftt Bill for the further enquiry of another Jury, which ever lucceeds fuch an Indorfment of Billa vera by a Grand Jury ; certainly it is upon a great miftake ( although I confefs it is often uled in Law« Books , and by wife men ) to call the Prefentment of a Grand Jury a Verdidt , to fay that their In» dorfing'jS/7/^ vera^ ^or Ignoramus ( which is all they do ) is their VerdtCi , there being a great dif- ference between Billa vera and Veredictum^ which fignifies di-^ ctumveritatisy and even induceth a Convid:ion; for nothing can properly be called a Verdi<3: , but . .. where 1x6 a&iJicc to ^laini 3!tiwi0 where it is given by a Jury ; after an Iffue joyned , upon hearing of both fides, Vere dictum^ \Sj as it were, quoddam Evangelium^ like a little Gofpel of Truth , for in- deed every Verdid ( wjiich con- vi<9:s a man to the lofs of Life or Eftate ) ought to be as true as the Gofpel the Jurors fwear upon^ for upbn the Iffue of a Verdi(3:,the Lives and Eftates of all perfons depend : And therefore an Attaint lies in Law againft thofe Jurors that give a falfe Verdid:, contrary to the truth of their Evidence, which is a Villainous Judgment , a very great Judgment in Law. And this Attaint did never by Law,lie, or was brought againft Grand Ju- rors for any falfe Prefentment, for they do but, barely prefent an offence, upon hearing of one fide, and therefore can be no Verdid (as from them) the Grand Jury being for number indefinite , that being properly called a Verdid from fuch a Jury , where the Law makes a determinate number of twelve^ twelve^ or twenty four , and nd more : Befides, it is alwaies faid in the Record ^ where fuch a Jury finds a Verdift , Juratores juper Sacr amentum fuum dkunt^^c.mt where the Grand Jury prefent, Juratores fufer Sacr amentum fu» um^rafentant (not dicunt^ there being as much difference between frajentant and dicunt , as betwixt a known truth, and the report and fame of a hdt done. And this will the bettjr appear, if it be well obferved what Grand Jurors write or Indorfe upon the back of thofe Bills they find ; for though they Indorfe fuck Bills (Billa vera } yet they never In- dorfe upon thofe Bills they do not find (Billa fal[d) as if one were true, and the other falfe, for ftiould they do fo , it would be like an Accufatipn againft the Profe- cutpr that prefers the Bill, and a gr^at difcouragement to the Kings Evidence ; but they modeftly write (^Ignoramus^ which figni- fies to the Couit , they are igno-^ rant 1 2S at)i3tce to ^{anti %woi& rant of the matter in the Bill , and that they find no caufe^ either from what they have heard from the JVitneJfes , or know of their own knowledge^ to commend it to a farther Enquiry: the Verb Ig- noro^ coming from j^f/i^n/j-, not to know ^ to he ignorant. And this doth further evince,that the Grand Jurors "Presentment cannot proper- ly be called a VerdiB ; becauie a verdict doth in Law either convict or acquit ;^^\vvAv neither xktvcBilla vera^ nor Ignoramus doth^ the firfl: is always put to a farther enquiry, the laft is no acquittal %o the party; for although there be many Igno- ramuses againft any perfon , yet may more Bills be preferred a- gainft the fame peffohfor the fame offence 5 . for it may be they did not find the Bill, in regard fome Wit- neffes were abfent or corrupted, or the matter in the Bill miftakeii; happily it may be no Felony , but fometmng done in jeft , or in the, nature of a Trefpafs, or a Natural death inftead of a Murther, or the \Mt^ fnCafe^of OSIdoa* 129 Witnefles bf 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 {0 folly as is laid in the Bill , they muft not in fuch cafe write Q Ignoramus } as if they knew nothing of a Crime; as if it be a Murther in the Bill, and the Proof reacheth but to an Infortunium ^ or je defen- dendo^ or to any degree of un- lawful killing , they muft not write Ignoramus upon the Bill; or if Burglary, and the Proof makes it but a fingle Felony, and no Burglary^ they muft not Indorfe it ( Ignoramus ) but in all fuch cafes , wheire they are in any doubt, the beft w^ay for theni will be to advife with the Learned Judge , to move the Court for diredrions there- in. It is too great a Scandal to a Grand Jury (Perfons in that quality highly to be efteemed) to fay , that their Ignoramus (that i^ 5 their Ignorance^ is L their I jo 3B6icc to ®im^ Suiois their Verdid:. It is very fafe for Grand Jurors , before they find an Ignoramus , to examine every Witnefs produced; but if they have many WitneiTes in Murder or Fe- lony, if any one Witnefs induce a ftrongand pregnant Prefumptiori it is enough , without perplexing themfelves,in haft of bufinefs,they need not examine any more , but put Billa vera unto it. If a Grand Jury find , upon an Indidment of Murther , that A. killed B. what is it to them (as hath been faid before) whether it be Murther or Manflaughter, whe^ ther it were done , Ex malitia fr^ecogitata^ j^er Infortunium , fe defendendo , in loco ^ tempore heUi^- or otherwife , this is Special matter, and Special matter ought to be found when it is at Iltue by another Jury , and muft arife ( I mean the truth of it) fiifer tot am materiam of the Evidence, or proof on both fides ,• which can never be found and determined by a Grand Jury 5 that hear but one fide^ fide, for very feldom is matter of Fad: truly ftated in a matter of difficulty, by one fide, and there- fore ( as before is faid ) the Sta- tute of Gloucefter provides , that every Man-llaughter , fer Irifor- tunium or [e defendendo , flia(il be found per Tatr^ am after the Pri-= foner hath joyned IlTue with the King, and put himfelf de bono ^ malo ^ of good or evil, that is, either for his Acquittal or Gonvi- (JJion, ^uper Tatriam ^ to be tried by his Country. And the Jurors of Life and Death themfelves are not tied , as jfiot ftridly to the form of an In= ^icitment, fo not to the whole matter of it 5 not to the formi , as it was well urged by Sergeant Montague Reader at the Arraign- ment of the Earl of Somerfei^ for Murther, by poyfoning of Sr, Tho- mas Over bury inthQ Tower ^ who told the Jury, That they mtiftnot expert vifible Troofsinaworkof darkneji\ that many thmgs ivere laid in an Ini0ment only for tj ii form i I s^ aOiJlce to ®m\^ 3UIO10 form ; that they mtifl not look that the proof Jhould follow that ^ but only that which u fidflantial^ and the fubfiance (Jn that Cafe') mujl he this , Whether my Lord of So- merfet procured , or caufed the poyfoning of Sr. Thomas Over- bury, or not. The Lord Co;ff (then Chief Juilice } and other Judges grefent at the Trial , flood up and laid, The Law ps clear in this pointy that the Troofs mujt follow the Subftance^ not the Form , that the Law gives forms in IndiSf* ments , hut fuhftance in proofs. And yet this was fpoken to a Jury of Life and Death , who are more carefully to look into Circum- ftances and Forms ( becaufe their error is incurable, if they Convidt a man to lofe his life wrongfully) than^Grand Jurors are. And I cannot but further obferve (ill this Cafe of Sv.Thomas Overhury) that which I would hav^e all Grand Jurors , and Jurors of Life and Death, obferve, as an Inftance to guide them in other Cafes of like Ill Cafes of 131005. i?? like nature , that although it was laid in the Indidment , That the ninth of hbi\\A7mo 1 1 Jac. Regps^ Richard Wefton Qw ho was fro- cured by the Earl of Somerfet ) gave to thefaid Jr.Thomas Over- bury a poy [on of green and yellow colour ^caUedKofacre^ln Broth;and the frji of June, Anno 1 1 Jac. Re- gis fupradid:. gave him another fqyfon^ called white Arfeniek, and that the tenth of June Anno ii. fupradid:. gave to him a poyfon caUed Mtxcxxxy ^[ublimate in Tarts^ and the fourteenth day of Sep- tember, y&;/o ii.fupradidl:. ^^^^ him a Glifler mixt with foyfon called Mercury fublimate ; (^ ZJt p'^di^. Thomam Overbury ma- gis celeriter interficeret ^ @ mur- draret. ) Et fradiBm Thomas Overbury de jeparalibm venents fradiBts^ 5^ oj^erationibminde k fr^di£iis feparalibus temforibus , C^f . graviter languebat^ u^qiie ad 1 1^. diem Decembris Anno ii^fu- pradiB. quo die diB, Thomas de pnediB. feparalibus venenk obi it L 5 vene-^ 134 awiceto©i8ttT> %mm venenatmy ^c And dbeit it did not appear , or could^^ppear , of which of the faid poyfons he died, yet it was Refolved by all the Judges of the Kings Bench , that thelndidment was good; for the fubftance of the IndicStment was, whether he was poyfoned^ or not | and it appeared tnat We(lon with- in that time aforefaid , had given unto Sr. Thomas Overktry SivtYs other poyfons, as namely the pow- der or diamonds y Canthartdes y Lapis Cauftictis y and powder of Spiders and Aquafortis in a Gly- fter. And it was refolved by all the faid Judges , that albeit all the faid poj^ons were not contained in the indictment , yet the Evi- dence of giving them was fuffici- ^wt to maintain the Indidlment, for the fubftance of the Indidr- mentwas (as before is faid) Wloe^ ther he were poyfonedy or not. And when the caufe of the Murtheris laid in the Indicftment toht poyfoUy no Evidence can be given of ano- ther caufe, becaufe they be di- ftind fit Cafes of TBIooo* 13 j ftitK^band other caufes : So if the Murther be laid by one kind of -^^ Weapon, as by a Sword, Dagger, i^ Stilletto , Stick , Tobacco-pipe , Knife, Sheers, or other like Wea- pon, it makes no difference , the Evidence will be fufficient , if the party be ilain by any of thefe, be- . caufe they are all under one Claffis ^ , ,, , or caule. CafeJL9.p,6j. And afterwards, j4nne Turner^ Sr. Gervafe Elwys , and Richard Franck/yn a Phyfician (Purveyor of the Poyfons ) were Indidted as Acceffaries before the fad: done : And it was Refolved by all the faid Judges, that either the proofs of the poyfon contained in the Indictment , or of any other poy- fon (although it were out of the Indidrment ) were fuiEcient to prove them 'Acceffaries ; for the lubftance of the Indidtment a- gainft them as Acceffaries, was, Whether they did procure Weftoa to poyfon Sr. Thomas Overbury , orno'i So that it may be obferved here, what in the Cafe above was L 4 obferved 136 atibice to ^janu 31uto{0 obferyed by the Lo. Coke , that ^ Jurors were not to exp0 adireB ^ and fredfe 7 roof in every point laidtn the Indictment :, ihewing, how impo/Tible it were to Convid: a Poyfoner, who ufeth not to take any Witneffes to the compofing . of his llibber-fawces ; neither do other Murtherers , to the contri- ving of their maUce , and manner of kilHng another , but keep the jBre burning in their own bofoms until it break out. Nor in all Cafes of Mart her is it material V that exprefs Malice be proved tQ the Jury of Life and Death, though they be to Convidi the Prifoner , much lefs ( or not at all) is it material to prove it to the Grand Jury , who are but to prefent it , not to the Jury of Life and death in any cafe where the Law only impHes it, for fuch proof is in the Judgment of the Court and not in the Jury , which the Jury mull fubmit unto and be over-ruled in; "much lefs is this implied Malice to be proved to tlie Grand in Caft0 of T5lao5^ Grand Jury, for it lies not in the proof of Witneffes , but in the conftrudtion of the Law ( as is faid before ,•) and yet the Grand Jury muft find thofe words. Ex malttia ^r ^cogitata^c , as if they were proved expre/ly unto them by Witneffes , or otherwife the Jurors of Life and Death cannot enquire of the offence fas {n) Murther ;} And the Jury of Life and Death \ in fuch a Cafe ) muft find thofe words expref- ly, although they. cannot be proved unto them , but are only implied and fupplied by Lav/ , or ^Ife the party accufed can ne- ver be ConvidJed of Murther , as - might be inftanced in very many cafes , take fome for all. (viz?) One in prifon kills his Keeper, and makes an efcape, where no malice or falling out can be proved ; a ftranger , or other perfon kills a Watchman , Confta-' ble. 137 (n) Murther k a mlful kjUingof a man upon ma- lice, forethought ( but this musi either be expre(fed in proof, or implied by Lan») it feemeth to come of the Saxen veord, Mordren, -which fo fignifieth , and Mordridus is, the Mur- therer, even to this day amongji them in Saxony, from -whence -we haze moll of eur "words : Or it may he derived of Mort eft dire, oi Mors dira, Terms the Lawytitle Murther^ 0/.207. ^ 1 38 aoJjice to ®ium 31«toji3 ble , or other Officer , that hath good warrant to ftay him , though happily there be no caufe for his ftay, being an Innocent perfon, or another perfon, and not the fame they intended ; heres no Malice , yet this is Murther ex malitia fracogitata , ^c. One goes into the Street, or High-way , and kills thefirft man he meets, although he did never fee him before : The Father or Mother takes their fuck- ing Child, and daflieth ou^^the Brains of it againft the wall ; Two perfons are fighting a Duel toge^ ther upon cool blood , upon pre- meditate malice , and a third per- fon comes to part them , and is killed by one of them, this is Mur- ther ex malitia pracoptata , in him that killed him ^if not in both ) although neither of them (i) Si fit alt- ever faw him before , and yet no quisquimuiit- malice to this man : fo^Onewil- SS'^" fiiUy kicks or wounds a Woman puerperhm nonformitHm^vdanimiitumfuiYU & maximeft unimitum^ fecit hemicid. Stamf.fo/.i2. Inthisfol. you fhall find Juftice Stam- ford ufmg the words hmicid, & murdrum^ as fignifying the fame. v.5U«!f. fol.2i.c.i3. great fn Caft0 of TSlooii* 139 great with Child , whereby the Child is wounded in her , Ihe is afterwards fafely delivered of the Child(theChild aUve)the wound or bruife by the kick or blow appear^ ing upon theChild mortally, where- of afterwards it dies,this is Murther 'ex malit,fracog, and yet what ma- lice had this man to the Child he never did fee ? Divers perfons are unlawfully hunting in a Park, one of them kills the Keeper (Rafter the Keeper had duly , according to his Office^ admonifhed him to Hand) all the reft of the Company ( al- though a mile off in the faid Park^ and out of fight} are guilty of wilflil Murther of the Keeper, and yet nothing of malice can be ex- prelly proved. One is fliooting at a Cock or a Hen, and kills another perfon , this is Murther , his a<5t was unlawfol. One jfinding a Gun or Piftol 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 jelling way gives fire at one in the 140 ai«jfccta®ianBautoi0 tbe Room, the Gun goes off and ^ kills him ; this is Murther, he had nothing to do to meddle with the Gun , it was out of hit Calling, and none of his , he muft Jeft at his peril. A Drunken-man gets upon a Horfe (which a fober per- fon might ride quietly } and in a Fair or Market occafions the Horfe to run over another perfon , arid kills him ; this is Murther. A gives j& the lie, with many other pro- voking words , as Coward, Thief, Murtherer , whereupon B ftrikes A^ and kills him ; this is Murther ex malitia^ 8cc. words are not a fufEcient provocation for one man to kill another. If one killeth another without any provocation co^di.9.fo.<^7. (actual) of the part of him that is 6. xx^mci^au llain; this is Murther, the Law (y s Ca e. implieth Malice. If a man know- 2. M.fol.<7. ing that many People are coming along the Street from a Sermon, throw a Stone over a wall or houfe, intending only thereby to fear them, and thereupon one is killed with the S_tone; this is Murther, al- though ..'^m^. though he knew not the party llain. If A alTault5to rob him, and in refilling A killeth B ; this is Murther by maUce implied , al- though he never knew him. If one meaning to ftealaDeer ^injl,foL^6^ in a Park , fliooteth at the Deer, and by glance of the Arrow kil- leth a Boy that is hidden in a Bufli ; this is Murther, the Act being un- lawful, though here was no intent to hurt the Boy, knowing nothing of his being tnere. If a Woman being quick with ^2 Ed. 5. Child,do wilfiilly with a jpotion, or ''''''^^^' otherwife, intend the deftruction of the Child in her womb, the. Child being born alive , dieth of the potion, battery, or other caufe; this is Murther. If one keep a MaflifF-dog , that is ufed to bite people , near the Common Highway , or a Bull or Beaft, that hath hurt any one (af- ter notice } they kill any one , it will be Murther in the Owner, al- though not prefent when the fact was done ; and yet in this , and the 142. ^t»fttec to ®ianli aucoi0 the other precedent Cafes, here is no exprefs Malice to be proved,but what the Law conftrues to be fo, which can in no fenfe be left to the (p) Miirther is (^) Grand Jury to be judge of. inurpretative u^^l^^ll thefe Cafes , and iiianv not to k left to Hioie , muit be ruled and over-' GYdni Jurors ruled bv the Judgment of the '^''''''' Court, in point of Law. Although no Malice in thefe Cafes can be proved to the Grand Jury or petit Jury , Qf) (q)AUquandoverocUn' yet the Indiftment muft ita Ht fciri mn poftt quid be exprelly drawn, and fo fit aaum, hujufmodi htmi- found by the Grand Jury, 4^tL^ri^^. withthefewordston^e Waies&Petty Cafe /«Jb/j It Murther , Exmalitta Comment. fuapracogitata^^c that is, that he killed him out of his malice , fore-thought ,• not that thefe words make a new of- fence of Felony and Murther, that was not Felony and Murther be^ fore, and fo efteemed in all Cafes where it was done voluntarily and by affault ; and this appears plain- ly by the Statute of Markbridge C formerly mentioned ) ^^ H. ^^^ wher^ in Caftsi of %mXf. 14; where it is faid , Murther from henceforth Jhall not he adjudged^ before our Juftices ^ where it is found hy Misfortune only ^ hut it Jhall take ^l ace infuch as are flain hy Felony^ and not otherwife. By this Statute it is plain, that killing one unawares, by misfortune, was Murther before this Statute , and that after this Statute , all other killing, where it is Felony ^ fliall be Murther, as before this Statute, Felony h a general term, which comprehendeth divers hainous of- ^^^^ ^j^ fences, for which the Offender k^o./^/. ought to fufFer death, and lofe their Goods and Lands. They are called Felonies of the Latin word Fel^ which is in Englifli Gall , in French Fell , or of the ancient Englifli word Fell or Fierce , or becaufe they are intended to be done with a cruel,bitter, fell, fierce or mifchievous mind. So the Statute de Officio Coro- 4E4r. natoriSy made 4 Ed. 1 . (^where the Coroner is well dire(9:ed his duty) where any perfon is flain , or fud- d^nly 144 aotjfcc to ©janti 3lutojs denly dead, how he fliould behave himlelf, which is worth his read- ing. It follows in the faid A(2: in thefe words, And if any be found Culpable of the Murther, the Coroner JJjaU immediately go to his houje , and Inventory his Goods ^ Chattels^ Lands ^^c. Tas in that Ad: is further direded J I only mention it to Ihew , that ail that were found fo flain , the Co- roner w^as to enquire of it, as Murther , or otherwife there could be nolnventorying ofGoods, valuing, or feizing of Lands , &c. or committing the Offender to the Goal by the Coroner , as plainly doth appear by that Ad. 2£d.^.c.24. So the Statute of the fecond of Ed. 6. where one is ftricken in one County, and dies in another (it being doubtful before where the Trial fliould be) gives power to the party concerned , to bring an Appeal ( who had not power to Appeal in that cafe before ) of Murther only in the County where the party dies , and in that cafe cafe can bring no Appeal of Man* flaughter ( as in the ftreightned fenfe fome would take the word Manflaughter) by this Statute is declared, That where any Murther or jR?/o;/)'(which word Felony here cannot comprehend Manjlaugh- ter^ JhaU he committed tn one County^ and ther^ be Acceffaries ' to the fame in another County ^ ufon an JndiBment found in the County where fuch Acceffaries are guilty J the Certificate of the Con- viStionor .attainder of the Trin^ cifdl Jhall be good ^ to proceed a^ gainflfuch Acceffaries : So that if the Principal be not Indrded of Murther, I conceive it is doubtful upon this Statute , to proceed to the Condernnatioii and Judgment of the Acceffary in another Coun-^ ty, for by no congruity can the words; or Felony comprehend Manflaughter, A Pardon of all Felonies will hardly pardon Man- flaughter^or be allowed of M So 146 aDi^tceto®ictnt>3iuto?g 4H.7.C.I5. So in the ^thoi U. 7. caf. 15, there are thefe woifds in the Sta- tute^ Wherea^s i^^on triifl of the privdedge of the Churchy divers ferfons have been the more hold ^ to commit Murther^ ^c. hecaufe they have been conttmially admits ted to the benefit of the Clergy as oft as they ojfended; It ts enaited^ That every one being once ad* mitted to have the benefit of his (r) irUn cUrgy ry\ Qler^v ( if not within Holy S.Tc-- Ordersyjhalinotafecondtme be mon Law hook^ , admitted for fnch an offence. And ittaktsitsmt that every perfon fo ConviEted for timof^tin Vol's, Mnrther^ -to be marked izith an M that the vriists upon the brawn of the left Thumbs Si^^;. and for another Felony with aT. SeciiUy Judge, Co. Magna Charta 6^6»l! hath bun confirmed by divers Parliamentfy and fo javourably ufid by th^ temporal Judges , that it hath been al' lowedto all Lay-m^n that could read, which is more than the Cm- fnon Lawrequins. Stamford fc/. 12 g. The fir ft that mentions this Vrivi ledge at Common Larv is "Sxz^on^that "wrote in the time of l\ing Henry the Third. Bradou lib.-^. fol, 12^. The next is the Statute of Weflm. 9Ed.i.c.2. By the Popes Conflitutions the Priviledge of Clergy extmdcd to all Ogences vphatfoever , and the Prelates of England, by Colour thereof , did claim the [am as generally, vide p Ed. 2. Articuli Cleri. Yet within this ¥jngdom Clergy -was al- lowed only in cajis of Murther, petty Trcafoiij and Fclony,«or /;; ycc^iijh againji the King himfelf. Here fnCafesiof'Blooli 147 Here it is plain that the word Murther comprehended all man- ner of Manllaughter , all manner of Felonious killing , every Mur- ther being Manllaughter , and e- very Manllaughter then as Mur- ther, they being Termini conver- tibiles^ equally fignifying the Ge° nus of Man-killing, you may per- ceive by vt'hat hath been faid be- fore , that Felony cannot compre° hend Manflaaghter or Murther ^ for h^e the one is to be burnt with an Mfor Murther, the Felon with a T'for Theft, both which marks, upon the refpedtive Convidions ; are (as I conceive in thofe Cafes) by vertue of this Statute, obferved to this day , although we now ap- ?ly the Letter M to fuch , as the ury of Life and Death, upori an Indictment of Murther from the Grand Jury , fliall Conyid: of Manflaughter , that is , upon the point Ihall find this Special mat- ter, that is to fay , that there was no Malice, expreffe or implied, in him that killed the dther ^ but in M % t 1 48 ao\)ke to ©lauD %mm a fudden heat of blood, occafioncd byanadual (not verbal) provo- cation in him that was killed. This contradiftindion betvi^ixt the two words, Murther and Man- (laughter ( as I conceive } came into our Laws only fince the Sta- tute of the 25 H.5. f . I . that takes away Clergy, that is, will not ac- cept of them to be Clerks that kill another maUciouily. I find not this diftinction before , either in the Lev It teal Laws (the Laws of God^oi* the Laws oi England : No Sanctuary or place of Refuge ( as is faid before) by the Law of God, being allowed for fuch a diftincti- on , but both Ihould have been pluck't from the Horns of the Al- tar ; and by our Law, in both cafes (notwithftanding this Novel di- ftinction ) they were equally ad- mitted to Clergies, I mean by the Common Law. The faid Statute of the 4 H. 7. r. I J. being the firft Statute (that ^ I find) that appoints burning in the Hand for Murther and Felony, and mCafcsof T13fooli» 149 1 and takes away Clergy for the \ Second offence of the lame kind, ' \ where Clergy hath been allowed J before ^ and it is obfervabk , that , ^ in this Statute it is called Murther^ 1 with, or without the words Ex \ malitia ^r^ccgitata , not having \ refj)ect to our Modern diftinction, ; which holds only ( as i^ faid ) in ^ the enquiry of the Jury of Life j and Death , who have the whole j^ matter of Fact before them, with \ all the circumftances thereof as it \ arileth from both fides, which the ^ Grand Jurors neither have , nor j ought to have. Then comes the Statute of the 23H.8. cr. j 2j H 8. (formerly mentioned) I being the firft Statute that takes j away Clergy for the firft offence of | Murther, called in this Statute \ mifui MtirtherCs^, of ,,^ , , .J ■M/r I' ^ ^ r J ^w isjThat iSy voluntiiry ana Maltce prepenjed; this VV;">-?.fc though u k Statute being made to doic upon a fuidm occa/;- rectifie the great abufe in '" ' f" '^- '[rX'^'Ti' ' _. i. . ^ , ^ _ . the Law imphsth Malice. t Ordmaries, m luffenng coke ^.infl.foi.Si. i notorious Thieves and ,. \ Murtherers to make purgation , - \ M z and ! I JO awicetDiSjanTi 3lutoj0 aad provides,That fwperjon which hereafter foall be found guilty (after the Laws of this Lana^ of any fetit Treafon , or for any WiU ful Murther of Malice frefenfedy Roipbing' of Churches y Robbing of Terfons m their hotifes , or upon the High-way^ wilful burning%f Houses y or Barns with Corn , or Accejfaries before the fame , Jhall be from henceforth admitted to the bene ft of their Clergy y but fuffer death as if they had been no Clerks ; it feems all that were^that is , as many as the Ordinary then efteemed iOyClerksy although they were guilty of Murther , V^tty Treafony and Felony y fuffered not death, (fo great favour and im-. munity had they in thofe times for fuch bloody and crying fins) fo prevalent were the Clergy, and thofe within Holy Orders, in thofe daies , that this very Act of Parliament, that takes away Cler- gy from others, that commit Mttr" (hery Burglary^ and Robbery y and other Offences befcre-named , ex- cepts fnCafegof IJlooU. iji cepts all within Holy Orders (^), from the fame pains and dangers other perfons (0 ^^'^^^/^ fi'^^ ^/f ^ 'f '^\^ ti r CD r ^u r time of King Henry tkg muit fufFer tor the fame sewidi time wm above ^ Offences ,- which freedom looMunbirs byPmJis and and Indulgence continu- ^n within Holy orders. ed to them in Holy Or- ders Q as they call it } until the zSH.S.c.i. which provides, That tbey within Holy Orders ^ O'S to fuch and other Gff'er.ces^ Cu) (hall be under the W ^^ Exemption of the fame fams and dangers fi^/^Slrat that Others be. Now this nSy. Statute makes none of the former offences Felony or Murther, that was not fo before the making of this Statute, but only takes from them (^that com- mit any of thefe offences} the benefit of their Clergy ; certainly there wanted not thofe that com- mitted wilful Murther of Malice prepenfed (as we now diftinguifli it) before the making of this Sta- tute; as thofe that committed Sa- criledge, robbed perfons in their , Houfes, and upon the High-way, M 4 wilfully iS% 9tJ5)icc to ©iantj 3iutoj0 wilflilly fired Houfes , and Barns with Corn , and were Abettors to the faid Offences : fo it is very plain, that this Statute makes no alteration as to the drawing and penning of Indictments of Mur^ ther^ Sacriledge^ Robbery^ Burg- lay}\ ^r. but only takes away Clergy from every perfon , who after the making of that Statute fliould be found guilty (as the words of the Act are, ajter the Laws of this Land^iox any of the aforefaid Offences. So that ac- cording as the Indictment of Mur- ther was, by the Laws of this Land, before the making of this Act, fo muft it be after the making of this Act wilful Murther , in the Statute iztJ,%.c. 12. and this Sta- tute of the 2 J. of tke fame King, comprehends as well that which we call Manflaughter , and -every kiUing where the will of man is freely engaged , as it doth wilful Murther of Malice prepenfed; compare them together, in the one }ou will find Clergy .taken away away for wilful Murther of ma- Ece prepenfed,and SancSluary from wiifial Murther, and generally fuch Offences as were prohibited Sanduary by former Statutes are now prohibited Clergy by later Statutes. The words Exmalitia fracogitata^ murdravit (which now make all this conteft) before the making of this Statute in a- ny cafe of Murther , neither ag- gravated nor extenuated the Of- tence , made it neither more nor lefs penal. But fince the making of this Adl, thofe words are made neceifary in all Indidments and ConvicStions of Murther, and prin- cipally and only (in cafes of wilful Murther) to be confidered and weighed by the Court and Jury of Life and Death, upon hearing and debating the matter , with all its circumltances (as hath been faid before) on botn fides ;thofe words being matter of Law , mixt with, matter of Fa6t, and are not to be expunged by a Grand Jury,becaufe they cannot afterwards be fupply« : , ' • ed , IJ4 atH3iceta©?anli31utaj0 cd nor implyed by the Court , and Jury of Life and Death after the Arraignment of the Prifoner, fliould there appear upon Tryal never fo great caufe, ytt Felomc^ and fame other words (^though material 3 may be fupplyed in a Special Verdidt. If upon an In- di 171 Then the Statute made i Jac.^1^^^^^^^ €. 8. takes away Clergy from him that fh all flab another^ that hath not prfl ftricken y nor hath awea^ fon drawn ( // he dye thereof in fix months , although no malice can be froved^ excep it be done fe Defendendo, or by misfortune^ in keeping the peace ^ or correEiing his Servant or Child. Thiswith- .out all queftion was Murther (by malice implyed) before the ma- king of this Statute ; and fuch a kind of killing is adjudged Murther at this day, that is, where one Ihall wilfully kill another (by a- ny weapon Jl without provocation from him in deeds; for no provoca- tion in words [only] will make it Manflaughter, or lefs than Mur- ther. And ( in my judgment ) it is an Error in practice of this In- dictment upon the Statute of Stabbing , to leave out the words ( ex malttia fracogitata^ in the Indictment: For the words of the Statute are (^although no malice can be proved^) then lure the ■ . ^ ^ ■ meaning I'l 172 SiaWt to ® janti !Jlutdi0 meaning of the Statute is ([as in other cafes) it ihall be imply ed: And in all Indictments, where malice is only implyed, and can- not exprefly be proved, thofe words ex malitia^^c. mull: be put into the Indictment, to make it Murther, and to take away Clergy, and by fuch words the Indictment will be good, both upon the Sta^ tute, and at Common Law. And fo are the Indictments made againft lewd Women that kill their baftard children , upon aiJaGc.27. the zijaccap^z-j. although the fpecial matter of the Statute be put into the Indictment, viz, jThat it is a baftard Child y and born of her body alive , yet the words, ex malitla j^racogitata , are always put into the Indict- ment; which malice the Law im- plies, although none can prove the child born alive , and none can be prefumed to bear malice to a dead child : And haply it might be born dead , or dye after itwasborp, againft the will of the Mother, Mother, of her Throwes and Strivings, to be delivered without help* It is not the burying of the Child , or hiding of it , that makes it Murther upon the Sta- tute (as fome have conceived ) for if the Child be found dead in Bed by her fide, or in her bofome, yet it is Murther ,• for the word [conceal] in the Statute, relates not to the Body of the Infant , but the death of it; the words being thefe, Shall fo conceal the death thereof^ that^it may not come to light (that is, to the knowledge of one Witnefs at l.eaft ) whether it were born alive or not , hut be concealed^ Jhe JhaU fuffer death as in cafe of Murther : If ftie can prove by one Witnefs it was born dead, then her hiding or burying it afterwards will not be Evidence againft her to take away her Life upon that Statute. Thefe two Statutes create no ^2ucq% new Offence that was not Felony ^■ and Murther before, but oiily take away Clergy in thofe two safes 5, the 174 aubicc to ®|9nti atiww the one of fudden and defperate (tabbing ( then frequently in ufe ) the other of lewd Whores , who hiving committed one fin, to a- void their fliame, and the charge of a Ballard , would commit a greater , by trufting to their own urength in their Delivery, that they might more privately de-. ftroy the Infant , and yet avoid ' the danger of the Law , becaufe in that cafe , none for the King could prove the Child born alive, and therefore it was impoflible to Indid and Convidl: her at the com- mon Law for Murther, although really and in truth it were fo. This Statute makes theSuppofition good for the King to the Grand Jury, and Jury of Life and Death , and to the Judgment of the Judge in point of Law, that the Child fr^ }Jote this (^ fuppofed to be murthered ) was fe5;fri!born Cx:)aUve, and by her is laid fn the IrJi'^mint by th's Kings Counfdi that the Child yvas born alive^- dvidugh they k Ave not tht ka(i Evidence fer it ^ and yet I truft thei &t^ not forf^QTUo mur^ murthered, in regard fhe being a lewd woman, and contrary to the Cuftome of honeft and innocent women ( who always defire help in their Labour) chufeth to be delivered alone , this Statute puts the proof upon her ( if flie will avoid fo ftrong a prefumption of Murther) tobefure to have one Witnefs to prove the Child was born dead. It being likewife ftrongly prefumed, that a woman Q without help of fome other ) cannot be delivered of a Child at full growth dead in the Womb. Tv/o remarkable Cafes I have known in my time upon the faid Statute of I Jac, mOxfordJhire Circuit ; the one in Mr. Juftice 7^;f^^ his time (a Learned Judge that went Sixteen years together that Circuit) where the Cafe was| A cunning aefperate Fellow , ha- ving an intention to ftab another perfon, and yet to avoid coming within the danger of that Statute, had ( to 'that purpofe ) provided himfelf of a Daggernaked in his Pocket 176 ai>Biceto®jairti3luit0jg j Pocket ( he being never known to wear any before ) came into an Alehoufe where the party was he intended to ftab^ and at jfiril com- ing ufed very friendly Language unto him 5 but afterwards ail the provoking Language he could, to make the other ftrike him $ which the other no fooner held up his ftick to have done, but he ftabb'd him into the Body with his Dagger , whereof he dyed : No malice could be proved, yet fo much of his intention by his pre- paration and circumftances ap- pearing to defign the {tabbing of the other, that it was adjudged to be within the meaning, though not within the Letter of the Statute , the Lord Chief Barori "Daveni^ort being the other Judge of that Circuit) and he was deny- ed his Clergy, and after Judgment w^as Executed. It being then ob- ferved by the Judges, That imme- diately after the making of that Statute, many defperate Fellows ( that could read as Clarks ) td thofe fnCafessof XlodJ* 177 thofethey had a mind to quarrel withal) would ufe all means to make them Itrike firft, and then fuddenly flab them ; and by this way avoid the faid Statute , and • become • guilty only of a Man- llaughter at Common Law, and fo receive the benefit of Clergy, which the Statute takes away. The other Cafe was in the fame Circuity very lately, before Mr. Tuftice (jv) 'Windham^ attheAf- {y)^mdhaM fizes at JVorcefter , a little before ^;^}'S,'^};. his death , Where a Father cor- jikes of tk redring his Son,for fome undutiful- cmmon vum nefs he conceived in him (having a Kjiife in his hand , being eating his dinner ) Itruck his Son over the back with his knife, and gave him a flab whereof he died : The Judge apprehended this Offence to be within the Statute, notwith« ftanding that Exception in the Statute, of a Father corrediing or chaftifing his Child or Servant, in regard it was an unreafonable way and means of corredion: whereupon be reprieved the Fa- O ther 17S acjjicc to ©ian» autojis ppp ther for fome fliort time , and acf- vifed with the reft of the Judges at Serjeants Inn^ and after he had their Opinions that it was within • the Statute, he forthwith fent down a Warrant to the Sheriff to do Execution, having received Judgment of Death at the Affizes y and yet the words of the faid Ad: of Parliament are (^ although his Son^ or Servant^ dye of [tic h cor- reBion^ hejfjallnot be within the faidAEiy Obferve here how neceflary it is, That all the circumftances that can be in an offence of blood , be put into an Indidtment, and be fo found by the Grand Jury ( as it is advifed by the King's Counfel) where there is innocent blood ihe3 by the party indicated , that every part and circumftance of the Fad, with all its aggravfitions , may come to be confidered and weighed by the Court, which otherwife cannot be ; as in this Cafe of the Father killing his Son , if the In- didment had not been drawn up- on fnCafeiScif/Blooli 179 bn the Statute , but at Common Law, in regard of that Exception in the Statute ( as the Grand Ju- ry then would have had it } the party had been capable of Clergy, and fo might have efcafed that Judgment of Death. If fuch dift iiculties appear to the Learned Judges , upon due confideration of the Law, and of all circumftances in cafes of blood , how much more will it prove difficult to Grand Ju- rors ? and how little reafon have they to expunge , alter, and obli- terate circumllances of aggravati- on in fuch an Indictment, upon hearing only of one fide , as they pleafe , ana fo prevent the Judg-^ ment of the Court therein, taking from them the power, even to ex- amine fuch a circumftance, as may (if truly Hated and examined J rule the whole Cafe , as before is obferved. In all the Offences formerly mentioned , where Clergy is ta- ken away by thofe Statutes, there h no new offence of Felony or Mur-^^ Q % ther I So ati\)i£e to iSjantJ 3!uto|5i thcr made, that was not fo before the making of thofeLaws,as might be inftanced in Murther, Robbery, Bui'giary , Sacriledge, Cutting of Purfes, Stealing of Horfes, R.ape, and the like ; but only Clergy ta- ken away from the Oftender ( which is no more but the abufive bloody liberty of Clerks in thofe times reftrained) as wilful Mur- ther where malice appeared, and other mixt and fimple Felonies, which were then m.oft raging and reigning Offences in the Kingdom, and cry ed out for a greater Reme- dy, aftridlerLaw to be made a- gainft them Q as appears by the Preambles of thofe Statutes that take away Clergy in thofe Special Cafes ) that were Murther and Felony at the Common Law be- fore ; from whence I conclude , that the Forms of Indidments of (z)ThsnameofYQ\o^Y or T^) Murther , are no not changed, but the Law rttalnsit mtifiually for the heinoufnefs of the Crime. Sfamfordfol "^ rr «.? fi? ^,7^^, thm not the words that rrah it fo^ way inCiifcjSof T51005. iSi way directed to be altered by thofe Statutes that take away Clergy, but are to continue in the fame form as they did before at the Common Law. And I am not of their Opinion ^ That the words Q ex malitia ^r^cogitata ) came into Indiitm.ents immedi^ ately after the aforefaid Statute of 25 H 8. Certainly there were 25 h. 3. Murthers committed, and that fre- quently, of malice fore-thought, before the making of that Statute, and thofe Murtherers had their Clergy alfo; otherwife that Statute had never been made to take it away. If the Grand Juror;s ihall fay. They will not -find thofe words ^ Ex malitia pr^ecogitata,^^/" iiito the - IndiEiment^ except the malice be plainly proved to them *j thenfare- welthat diftindlion and inference of implied malice, which the Law makes, in many Cafes, and which otherwife cannot be made ; they may as well fay, That they will not find fuch words Treafon, that are Treasonable. , becaufe no i A£i of Parliament ^ or express Cafe at Common Law , fays thofe particular words are, Trea- fon ; or that they will find no In^ di^ment of Burglary , although the Goods fioln he found with the Thief ^ and the dwelling Houfe broke , becaufe no Witnefs flood by to fee the breaking of the Houfe ^ entring into it^ audftealing thence the Goods : Or againfi a Cut-purfe^ though the T'urfe or Mony be found in his hand\, or becaufe none fee him take it forth of his Tocket ; or to find the IndiUment^ becaufe it is laid to be done Vi & armis , with force and arms ^ and yet faid to be done Q in the fame Indict- ment , clam & fecrete, & fine no- titia ) privily^ fecretly^ and wit h^ out notice of the party , which Q in FaB ) could not be done if it wefe done by force or arms: Or to find an IndiEiment of Robbery done upon the 'High-way^ againft thofe that rob in Vizards , not^ withftanding the mony be owned ^ and found about them , becaufe the the party cannot [wear he fa'W their faces , and that thefe were the men : Or thatfiich a one kiWd a man^ that comes cut lafi'from him with a bloody Sword m his hand^ a'ld no person hefideswith him. In all thefe Cafes it is pof- fiblc , the Parties accufed might find the Goods ftoln ; and fo might the bloody Sword be found, and a- hother do the FacS ; but fure here is great and violent prefumption (fufficient for an Accufation} for a Grand Jury to find an Indictment ( whicn is but an Accufation upon Record) to bring the Delinquent, or Party fo -ftrongly fufpecfted, to a Judicial Trial ,• and as well may it be prefumed, when one Chrifti- an is kiird by another, it may be Murther, that there may be a feed of malice in the will of him that did it 5 by a voluntary and fpon- taneous motion in that ad: , that may. (upon a greater Debate) contain fome circumftance in it, that by fome reafon in Law (bet- ter known to the Learned Judge, O 4 than I S4 . atiicc to ©aanti SButoj^ than the Grand Jurors } that may in Law prove malice exprefled or implyea in the criminous Per- fon. And if it be fo difficult in cafes of blood for Grand Jurors to deter- mine what is Murther , and what is not, let them confider how dan- gerous a thing it is for them to mifcarry in their Prefentment in cafes of blood , of innocent blood ( as is before manifefted } and fo acquit the Murtherer , and take the imputation of blood-guiltinefs with them, from the A/Iizes to their refpecSive Families, where it may and will cry againft them and the whole Kingdom for ven- geance : I do therefore fubmit it to their ferious confideration , up- on what hath been faid , Whether it be not much better, and a fafer way for them , to fubmit their Judgments herein to the Rule of Law , and the Refolutions of the Learned Judges, than by their extenuating prefentment (for the Court can go no higher than they ' pre- fn Caftis of OSlooti. 1S5: prefcnt ) to ftifle Juftice in the I birth , and to acquit a Murtherer : I For the Indidment, although no . . f part of the Trial, yet is the very Bafis and Foundation of all the o- |; ther Proceedings. And let them i; confider how Itrid; (^formerly) the ;; very Law of England was jn^iig • £'^ie^^r^jthe Second's ti meTnT ca- ;| leron5Iood~where thevery wilt :: andintent to kill a man ( althouglT ; it was not executed} was p unilh- cd for the Deed J) although the ; party wounded recovered of his wounds. A memorable Cafe there was Stamf. foi. 17. in that King's Reign, cited ^Y c'^f^^^^J^^' Juftice Stamford^ where one com- v,i5 E(L2.p. paIIeJHe~3eaS5^or^ ^^i- HidHfo^rlevoully woundhim, that he left him for d^ad , but after- w^ards the party r ecovered ; jhis^ wasjtheig adjudged Murther ,_be-;_ caufe hi s will appeared fo plainly: -^^ivelaff dhim. For , as Bra- ^oF^s^In malefdis [pe£fatur yolunt as., lSnonexitus_^ then was , the Will by our Law ( as it is yet be- 1 86 anftfce to ©jana llutojs before God) reputed for the Deed: But_no\o>lKj[^^ Will and the Ad: togeriberTnTcaier of blood; but looks more upon the Ad than the Will : For though the Will do neither intend the Ad Q as it is done } nor approve of it (^ after it is done ) yet if the' Will in any part of the Ad: be cri- minous , it makes the Offender ( in our Law ) in cafes of blood , guiltyofthe whole Fad, with all T't Mc- ^^^ obUquity and evil in it. As if morat. p.33r,' ^ ^^^ intend only to beat another, 5$o. toftrikehim, but not to kill him , and the party die of the ftroke , it may be murther in him that gave caf^k^om!^'^ the ftroke. So if three men come z6ua. to make a Dilfeifin , and one of the three kill a man, the other two perfons are guilty , as princi- pals in the murther, although they neither confent to it, will it, or ftrike the Party, nor came with that intent, but only were in com- pany to have done another Ad. So if one, to kill his Wife, give her iS El. P1.474' Q lying fick ) Poyfon in a roafted Apple, ftt Caftis of osiooa* 187 Apple, and flie eating a little of it , give the reft to a little Child of theirs , which the Husband (left he fliould be fufpe(5tcd ) fuffereth the Child to eat, who dieth of the famepoyfon, this is murther though the Wife recover ; for the Poyfon miniftred upon malice pre- penfed to one , which by a con^ tingency procureth the death of another whom he meant not to kill , nor bear any malice to , iliall be as great an Offence as if it had taken the effed: which he meant , proceeding from a naugh- ty 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 cafe was Arraigned of the death of him that was kill'd ; and in this Cafe the Grand Jurors found it mur« therf So if an ignorant perfon take upon him to give Phyiick to one that is not well, and through his ignorance adminiftreth that unto him. that (apparently} kills ■• him. 1 88 atJftfcc to ©?anU aucois him, this is murther. And fo it might be inftanccd in many fi- milar Cafes , which are not to be difputed by Grand Jurors, but prefented by them in re, forma^ as the Indid:ment is advifed by the King's Council , and comes to their hands, where they find Q as before is faid } a criminous Par- ty in the Indid;ment , and a Bo- dy ( found } of a reafonable Crea- ture, certainly, or probably kill'd by him , although the Evidence be not exprefs to every circum- ftance of aggravation, as it is laid down in the Indidment , whereby to bring the Party and his Offence of Blood to a full Trial by a fecond Jury , which otherwife can • never be done , neither the Law therein known from the Court in fuch a Cafe. Befides, many other Inconveni- ences and doubts may arife ^ihere the Grand Jury find the Bill of Indictment only Manjlaiighter ^ which by finding of it Murther would be prevented , as in chal- lenging fuCafe^of T5looD» 189 Icngingupon his tryal above the number of twenty Jurors; the Sta- tute of the 22 H.8. r.14. reduceth 22H.8. c.14, peremptory challenge upon an ^/^^hTs^s!"^ Indidment or Appeal, which at Brook cW- ,1 the Common Law was allowed to ^^^i^ 21 7* ,1 the Prifoner, to challenge thirty I five Jurors (which is under the | number of three Jurors;) this ;j Statute fo provides , That a Tn- !| finer JhaUnot now in Petit Trea- ; 1 {on, Murth.tr and Felony ^challenge | aifove twenty Jurors , without i Jhewing caufi : And i^ cale of | Treafon , and mifprifion of high I Treafon , it was taken away by 1 the Statute of 3^ H 8. but now 33 h. 8. | by the Statute of i, ^zThiL^ i,2Ph.&Mar] j; ifer.the Common Law is revived, 1 for any Treafin the 7ri finer Jhall have his challenge to the number 1 of ^$ ; andfoit was refolved by ' all the Juftices upon conference between them in the Cafe of Sir Walter Rawleigh and Geo.Brooks: hIU Ja. ^* By this Statute it is plain , that if one be Indicted or Appealed for Murther , ' and challenge above the i 1 90 aaiJice to <©?anli %utoifi the number of twenty Jurors pe- remptorily ( without fhewing caule) itflialibe a Conviction of the offence and Capital ; but it is a great {ju/ere , whether he that is Indidled or Appealed only for Manliaughter (v/hich is not named in this Ad: , nor can be rationally comprehended in the word Felony more than Murther might have been ) may not challenge thirty five Jurors, as at Common Law ? fo it may be a qu^re , where the Prifoner Iidided only of Man-' jQaughter, fliall Hand mute, or will notanfwerdiredily to the IndicS:- mentjwhether notwithftanding he lliall not have his Clergy? for the Statute of the i of Ed.Lc.iz. and other Statutes that take away Clergy from fuch offences and Of- fenders (as arc therein mentioned} take it away as w ell from fuch as ftandmute, anfwer indiredrlyor challenge peremptorily above the number of twenty, as froxmthofe that ard convidted by Verdid:, or ConfeiTion upon their Arraign-^ ment * ment; otherwife fuch as ftand Mute, anfwer indiredtly , or chal- lenge peremptorily, might have had their Clergy (as the Ad: feems to imply} otherwife it had not taken Clergy away in thofe cafes. The Judgment of Taine fort C^ dure J that is , ¥am grievom and durable^ was not at the Com- mon Law, but ordained by the Statute of Wefl. i. made Anno I Ed. I . whereby it was enaded. That notorious Felons^ openly known of evil name ^ whowtUnot pit themfelves ufon Enquefis of Felonies^ which men dofrofecute at the Kings fuit , Jhall be fut in hard and jirong Vrifon^ as they which refufe to be tried by the Law of the Realm ; but thk is not to be intended ofTrifoners which be taken of light Sufpcion. By which Statute it doth appear, that none fliall be judged to this pain, if there be not evident or proba- ble matter to convince him of the offence whereof he is arraigned , or A 192 aDi)icetd^2anti3luto2!S Stamford lib.i, of otherwife, that he is a notable Podton DC Thief, or openly known to be of FaceJoU2ii. Evil name^ which the Judge ought ftrid:ly to examine before he pro- ceed to this Judgment againft him, it would be very hard ( which the Law is never /;/ favorem vita ) to extend this Statute to Man- jlaughter^ which may be fuddenly committed by one of good name and fame, and not a notorious Thief (as this K€t mentions) and yet may have an obftinate humor to refufe Trial , challenge perem- ptorily, and make indired: Pleas. It is the fevereft Judgment (that I know} the Law palfes upon any Offender , and therefore not to be extended further than the plain underftanding of the words of the Kdi , a Sentence fo fevere,that (I think) rtcvtr Eng* lijh man as yet (though many have been Preft to deathj had the heart to execute it according to the letter, which Sentence is as foUoweth, That the Trifoner /hall iefent to the Trifon from ^whence he kt came ^ and ^ut into a Mean 4 "^^4-^^ ' Jboufe^ flopped from light ^and there \^^^^^'J^ jhall be laid upon the hare ground^ \ without any Litter ^ Straw , or o- ' ther covering y and without any Garment about him^ fa'^^^g fome- thing to cover his Trivy member s^ and that he jhall lie upon ht$ backy and his head Jhall be covered , and h'u feet bare y and that one of his Arms Jhall be drawn, with a Cord to one Jide of the houfe , and the other Arm to the other ^de ^ and^ that his Legs JljaU be ufed in the fame manner , and that upon his Body Jhall be laidfo much iron and Stone as he can bear ^ and more^ and that the firjl day after he Jhall have three morf els of Barley^ breads without any TDrink , and m vorfntm the fecond day he Jloall drink fq hut of Goods. much as he can^three times^ of the ^^^'^^^'^^^ Water which ts next the Trifon- door^faving Running-water ^with^ out any Bread \ and this Jhall bit his 7)iet until he die. P Another 194 aBWce to ©lantJ aureus Another inconvenience may a- rife, where the party Indicfted and Arraigned only of Manflaughter fliali plead a Forreinplea of fome- thingdone in another County, to the delay of Juitice ; fhe Statute of the 22 H. 8.f. 14. only provi- ding , in cafes of Tetit Treason , Marther^ ox Felony ^ thatForrein pleas in thofe Cafes fliall be tried before the fame Juftices before whom fuch perfons fliall be Ar» raigned , and by the fame Jurors of the fame County that fliall trie the petit Treafon, Murther, or Coke 5 /«/?. Felony. If a man be Indid:ed of /o/.;27. Treajon .he may plead a Forrein plea, which fliall be tried in ano- ther County, otherwife in cafes of Murther^ ^etitTreafoUj andir- lony. 6 H.8.c.d. Another inconvenience may be upon the Statute of the 6 H8. f. 6. By that Statute, the Juftices of the Kings Bench are impower'd to re- mit the bodies of Felons and Mur- there?' s removed thither to be tried in the County , and their In- didlments Ill Cafes of 'Blooo 19s didments removed into that Court, which before they could not do by the Common Law ; be- caufe a Record that is once brought into the higheit Court, could not be remanded to an In- ferior, Stamf. fol. i^j. this Sta- Stamf./o/. 157* tute only provides in cafe of Felony and Murther ^ not Man- /laughter. The lafl: Inconvenience I fliall mention (though I could many more } by reafon of Indi(9:ments of Manflaughter^ will be in Cities, and Burroughs, and Corporations, that have power to try Murthers and Felonies ; the Statute of the „ . 2g HcS.c. I J. provides, Thztin ^ • '^'^S' Trials of Murthers and Felonies there proceedings (hall not flay as formerly , or be delaied by reafon of challenge of fuch Offenders , for lack of fufficiency of Free^ hold ^ to the great hindrance of Jufiice; but that if the Jurors be worth in Monies and perfonal Eft ate Forty ^ pbunds ^ they fhall not be challenged^ but admitted<. P % It 1-96 2,vb\it to ® janD Sititoi0 It will be a very extorted conftru- (3:ion that upon this Statute, and the others -before fliall bring in TJU'lwt' Manllaughters under the word FdonyMmt Felonies^ whatever pradice is, or econverfo. hath been ufed to the contrary. I conceive it fit to be better con- fidered, for it is not fufficient (in all Cafes, much lefs in this} with* out, or againfl: a Rule and Ad: of Parliament, to juftifie pradrice by pradice ; this happily in the end might prove a Common Thief to be an honeft man. Befides , obferve the penning of other Statutes, and that will give a clearer light to the underftand- ing of thefe ,• by the Statute made 27 H.8,c.25. in the 27 of K8. f .2 j. it was ena- ded. That fw^erfon cr ferfons^ of what eflate or degree Joever^Jhall have fower or authority to far^ don or remit any Treafons , Mur- thers, Manflaughters, or Felonies, whatsoever they be , ^r. Here you fee the Makers of this Law mention the word and offence of Manjlaughter , in t'ermijiis , and not in Cafes af OSlootJ* 197 not leave it to be underftood, or to be comprehended in the word other Felonies, though it is mod comprehenfively faid 5 or Felonies whatsoever they be. So the Statute made in the firfl and fecond "PZ?. ?5 Mar, ci^. That i,2Ph.e^Mar. the Jujhces of the Teace Q one ^''^^ being of the Quorum ) when any ^rifoner is brought before them for any Manflaughter or Felony, before any Baitnfeiit or Mahtprtfe^ floall take the examination of the ^rifoner., and Information of the Accufer , and certifie it at the next Goal-delivery , ®r. Here you fee Manflaughter and Felony bothexpreft, as neceffary, feveral times in the Ad:. So the Statute of the z^ H.S. 23H.8,c.i2. c. 12. that direds the manner of punifliing of offences in the Kings Palace or Houfe, fays , All Trea- fons ^ Mifprifions of Treafons ^ Murthers , Manflaughter s , and other malicious Str i kings ^i>c. and fo divers other Ads of Parliament (as might be Ihewed ) that make P 3 * or 1 98 atiDice to ©iaiffl 3f>uroi0 or intend any provifion againft Manflaughters , do particularly name the word Manslaughter^ and never leave it to be intended or Kclibl.pa, included in the word Felony At\% true,that by a Commiilion granted to certain perfons to enquire of all Felonies, they may thereby take Indictments of Murther; though a Pardon of all Felonies will not avail him who hath committed Murther, in regard of the Statute madeij i?.2.i. And the Commi/IIon .of Oyer and Terminer^ made to the Judg- es every Affizes , that enables them to enquire of all Offences, hath thefe exprefs words in it. And of whatsoever Murthers, Fe- lonies , Manflaughters , Killings,- not leaving Manflaughters to be intended by the general words of Felonies or Killings. Many more Inconveniences might be fliewed, but thefe (with what hath been before ihewed } may be fuflicient, until better reaibns appear to fatisfie any under- (11 Cafeg of 151001). 199 underftanding Grand Juror, toe- fteemit much the better way to find fuch Bills Murther , rather than Manllaughter , there being every way lefs inconvenience in it, in relation to the Laws of the Land ( until by the wifdom of a Parliament they are altered) and much more of fatisfaction and fafety to their own private Con- fciences , that ftand lo deeply en- gaged to difcover Blood-guilty perfons, and to fupprefs and lilence the cries of Innocent blood , that by our Laws (in the firfl place) cries to Grand Jurors for Ven- geance againfl: the Murtherer and Manflayer. It now remains that two Ob- jections be anfwered , that happi- ly to fuch as do not w^ell weigh and confider them may feem to be of fome force againfl: what hath been herein faid to the contrary ; the one is , The general liberty^ and conftant practice Grand 'Ju- rors have taken ever fince the making of the jaid Statute of the P 4 23 H. 7 0® atiftict to ®m^ 3luto?0 §|H.8.c.|. a^H.S.c.i. tofind^ as theypeafe^ either Murther or Manflaughter ; fiot as the IndiEtment comes to their hands from the Kings Coun^ cil^ but as they a^frehendtheE- vidence that is brought to them^ takivg upon themselves not only thejole Judgment of the FaEl^ and what the JLaw ts that arifeth upon the [aid Fa5i^ taking the judgment of the Law therein jrom the Cotirt Q although they hear but one fide') and putting in and pitting out what they fleafe in Jiich IndiSiments ^ noxwiih^ flanding it appears to them the party tndiBed^ is guilty of Jhed- dmg Innocent blood , varying the [pedes of Miirther and Man- flaughter as they pleaje^ until af- ter Arraignment of the Tri- [oner it be too late to amend it ^as I have often known. The other Objection is (and this feems to be of fome weight and authority in Law againft what hath been faid) That Mr. Jiiflice Stamford , m his book of ■ . The (n Cafe0 of Xioon* aor The Pleas of the Grown, is of another dpniofiy Yiz.That dGrand Jury may find the Social matter inthelndiSiment ; that is to fay^ thattheTrifoner killed the other fe defendendo, or per Infortunium, ^t.' which the farty upon his Arraignment may either confeJS ^ or ejlrange himfelf from the jaBy -and flead^ Notgmlty. To the firfl Objection, as to the liberty and practice of Grand Jurors to the contrary fo long ufed^ I Anfwer, It hath been before in this Treatife fuiEciently made out^ the great Inconvenience and mit chief, in Cafes of Blood, that is the confequence of fuch practice, and that being granted (as it can- not be deniedj I fuppofe no wife man will think , that the long practice of fuch an Errour will juftifie it, or encourage the longer continuance of it , in the higheft Courts of Law and Juftice , and info high and tender an Offence as the difquifition of Blood is ^ although in Inferiour County CourtS5 %oz 9tiSiccto©imni3luro20 Courts, where (vcrniy times) are . , ignorant Judges,and mean Clerks ; and in ordinary OfFences this Max- inie may hold good , that Commu* nis Error facit Jm ^ that the common practice of an Error makes it the Law of the Court, and not con^^enient to be altered ,• yet I have never obferved that Maxime to take place in the high- eft Courts of Juftice in this King- dom , before the Judges of the Courts at Wejiminlrer , Juftices of Oyer and Terminer, Juftices of Goal-delivery, and Juftices of At fize , who fit not to practice , but to correct and deftroy Errors of all kinds , efpecially in Trials of mens Lives, in Cafes of Blood, and whoever ihall urge that Maxime againft what I have here faid , doth by that fufEciently grant, what I have here endeavoured to prove, viz. the errour and in- convenience of fuch pradice, which ought no more to be con- tinued, than a long cuftome, when it is found to be unreafonable ; but but I fliall never allow (neither can it be proved ) that there hath been in this Kingdom fuch liberty and pracStice, allowed and indulg- ed by the Reverend and Learned Judges to Grand Jurors, to find and alter Indictments brought un^ to them in cafes of Blood, as they themfelves pleafe and judge con- venient ; they being (as hath been faid befote) not the Judges, nor the Triers , but Prelenters of a fad: of Blood, fit for the Judgment - of the Jury of Life and Death, who only are the proper Judges of the Fad: ; for none can be faid to be proper Judges of any Fad in Controverfie that hear but one fide , for Crand Jurors hear no more , and therefore ought in Law, Reafon , and Comcience (where they find a guilty perfon that hath had his hands in Blood, and unjuftly taken away the Life of another perfon) to leave it (as an entire fact of Murther } to the Trial and Verdict of the . fecond Jury to find the truth of the Fact (upon ao4 atJbfce to ® janu autois (upon hearing of both fides , and receiving the Judgment of the Court 3 "in what fpecies or degree of Murther it is , which likewife if any doubt or point of Law a- rife in the Cafe (as many times it doth) they may find it fpecially (which a Grand Jury cannot) and thereupon receive the opinion of all the Judges of England {Mur- ther being the Genus of the fe- veral Species) and in common acceptation, he is accounted a Murtherer that kills any man , or reafonable Creature unlawfully; and the Commandment is , Thou Jbalt do no Murther , which cer- tainly comprehends all unlawful killing, otherwife that command is not well tranflated from the Text , Non Occides , Thou jloalt not Kill; and in my own expe- rience , for above forty and five years in one Circuit, I have very often known many Learned Judges, fuch as Mr. Juftice T>o* deridge^ the Lord Chief Baron T)av€nportj Mr. Juftice Jones y Mn Mr- Juftice Whitlock^ and many others , often rebuke and reject the Prefentments of Grand Ju- rors, in Cafes of Blood, and other Felonies , where they have either varied from their Evidence, or from the Law , the Judges before hand having received fome light of the nature and teftimony of the Fact, from the Informations and Examinations therein delivered into the Court by the Juftices of the Peace and Coroners ( a very good Rule for Judges to obferve) and often either put it upon an open Evidence in Court (which is very inconvenient } or difcharged them of. fuch a Bill , and bound the WitnefTes over to the next Affizes ( which is alfo very incon- venient} in regard Witneues may die, or the Prifoner may die , and fo the Forfeiture is loft , and the offence unpuniflied ; and in Cafes of Blood there will be too much opportunity given for compourri- ing and making an Intereft with the Profecuter 'and Witneffes,- and zo6 awtce to iSjant! Sucoiis arid in thefe ^nodern times , fince the happy return of our moft gra- cious Sovereign, King CHARCeS the fecond , I have known feveral learned and pious Judges , fome fince dead, others yet living , and eminent upon the Bench in Ox- fordjhire Circuit , Fine and Impri- fon leverai Grand Jurors for their mifcarriage and mifdemeanour in dehvering in Bills of Manflaughter infteadof Bills of M/r/^^r,againft the clear and pofitive] diredrions of the Court. And this may fervc for anfwer to the firfl ObjecfHon , from the liberty and affecSed pra- ctice of Grand Jurors (^ in finding of Bills in Cafes of Blood} accorcE ing to their own humor and appre- henfion to introduce a Law, that therefore they may find them as they pleafe, notwithftanding that the Court advifeth and diredeth the drawing of them MVR- THER. To the fecond Ob;ed:ion of Mr. Juftice Stamford (in the place be- fore cited) where he faith , that' ^zihereas in Cafc!8 of TBIoo»^ 207 whereas the Statute of Glouc. eg. faith^ That he ought to fut himfelf in an Inqueft de bono & malo, this ts only intended (^faith he ) when he is IndiBed of Murther or Manilaughter, and not where in the hady of the Indi£iment ^ the Sfecial matter is found (as if the Grand Jury may find efpecial Ver- di(9:} of per Infortunium y or fe defendendo, ^c. I anfwer to this Gbjedion, Certainly Mr, Juftice Stamford (though a very Learn- ed man} did well confider this matter , and his Opinion therein, when he ftt it down ; for he in- forms you not what fliali become of fuch an Indidtment , where on- ly the Special matter is found by the Grand Jury, whether the par- ty may Traverfe it ( for it is but a Trefpafs) or confefs it, and fo have his Pardon of Courfe upon fuch confeflion,and then the Judges that are to make the Report or Certificate of the nature of the fad to the King in Chancery ^ muft Certifie like blind and d-eaf men, that io8 3irtj{ce to © laim %mis that never faw or heard any thing of the merit of the caufe, nor un- derftand any thing by evidence of the nature and circumftance of the Fa6t ; like the Lay-zealot , muft believe as the Prieft believes, pre- ferring Obedience before Truth | but fure no prudent and pious Judge will make fuch a blind Cer- tificate, in cafe of Blood. Befides , whoever fliall judici- oufly and impartially compare and weigh the Statute or Marlebridge and the Statute of Gloucefter to- gether , and the reafons of the Statute of Gloucefter , what mif-^ chief it was made to prevent, and confider but the nature of the thing,will never be of his Opinion in this particular , there is fo Uttle of reafon or true meaning of either of thofe Statutes in it.The words of the Statute of iifor/^^r. are thefe, Marther from henceforth floall not be judged before our Juftices.^ where it is found Mt6fortune. In the time of this Statute , it fcems, there were two Juries > the Grand inCnfegdf TBIooD* 209 Jury, and the Jury of Life and Death, to prefent and try the Of. ' fences of Murther , otherwife the Juftices could not judge of it, they never paffing Judgment upon a Grand Juries prefentment ; which, by the way, fhews , that it is left to the Judges(not the Grand Jury) upon the examination of the caule in trial by the Jury of Life and Death, to judge of the nature and circumftances of Murther , and of what fpecies or degree it is. This Statute of Marlebridge did only declare a new Law, that where it was found pr Infortunium , or fe defendendo , it fliould not be Fe- lony and Murther as it was before that Statute ,• but that the party in fuch cafe fliould have ( upon Certificate of the Tuftices beibre whom he was tried } his Pardon of courfe ; happily then, upon the Prefentment of the Grand Js- ry ^ which might be the occauon of 'this erroneous Opinion of this Learned Judge. CL Then 2IG ^Wm to ©^anu 3tttoj0 Then comes the Statute of G/cw- c^efier^ as if the other had not been truly underftood , or at leaft had not fufficiently provided for offen- ces of Blood , and in plain words (as before is mentioned ) com- mands 5 That he that kills a man hy misfortune^ or in his o'wn dc' fence ^or in any other manner with' out Felony , Jhall be fut in Trifon until the coming of the Ju ft ices in Eyre^or Juflices of Goal-delivery^ and fljall pit himfelf uj^on the Country for good and evil, that is, for life and death , which cannot poffibly be underftood where the Grand Jury find it hut per Infortu- mum, orfe defendendo^^cSor that is not Felony , and fo cannot be Arraigned thereupon, whereby to put himfelf de bono S) malo , fo as to bring the matter to IlTue be- tween him and the King ; nor can the Judge in that cafe (as is faid before) make a true and right Cer- tificate of the offence and matter of fadt , which muft be fpecialiy and truly certified according to Law, Law^whereby to procure a pardon, as that Statute exprefly requires. And if the party lliall plead Not gtiilty to that Special matter found ' by the Grand Jury , what can that fignifie (as before hath been View- ed} for the Jury that is charged with fuch Indictment, mull either find the party guilty in Special manner, as it was found before by the Grand Jury ( and that makes t03 fpecially Verdicts ; ) or elfe generally Not guilty ; if they find him guilty of the Special matter (as the Grand Jury found before them) and^the Judge and Court ihall afterwards adjudge ( as they may, having heard the Evidence) that [u^er tot am mater iam^ it Is either Murther or Manilaughter ^ then no Judgment of Death or Clergy can be given upon that In- didment or Verdid , but ailmuft be tried over again , and a new Circuit of bufinefs upon a fecond Indictment of Murther or Man- daughter ; and how dilatory and idle would this be at an Aflizes, in 0^2, courfc 211 12 courfe of Juftice , and in cafe of ■ Blood. If Judge Stamford were alive again (although a perfon of great Learning and Judgment) he would fureiy ( with fome other Errors in that book) recant this; neither is it of any advantage to the Pri- foner, to have it found Specially by the Grand Jury , for he can ne- ver plead either fuch an Acquittal or Convid:ion in Bar to an Indid:- * ment of Murther or Manflaughter in the fame cafe (as before is ihew- ed ;) and whoever fliall read and well confider this feventh Chap- ter, written by Judge Stamford^m The Tleas of the Crown^ wherein this Opinion is,elpecially towards the end of it , when he comes to obferve the Letter of the Statute of G/oucefier , and how the Certi- ficate of fdch p. Pardon of courfe iliall be obtained, muft of nece/Il- ty hold his firft Opinion in that Chapter ( for the Special matter to be found in the Indidment ) to \)Q very inconfiderately expreiled fof Ill Caft0 of TSlooB. zi^ for the reafons aforefaid. And why may not this Learned Judge (for huma?mm eft Err are) miflake in this, as in feme other Opinions in that Book of his ftykd , The "Fleas of the Crown ? for which he is detedied by the \jd,Coke^ and o- thers that followed him , who ftanding upon his flioulders muft needs fee farther , than he did or Gould; As to inftance m fome few : As firft, that Refpit of Execu- stamf./c;.«/f.^. tion ( where a Woman is frivi- ment enfent) where a Woman after Judgment pleads her Belly, iliallbe granted only Qfays he) in Felony: whereas it is grantable ^^^ both in high Treafon and petit ^.il^ ^' ' Treafon, Afecondis, That the year and stzmL-ptxor, the day after the Murther and Ho- ^3- micide committed, fliall be ac- 2^Air.p.s2. counted after the blow given, or pbyfon adminiftred : whereas it ought to be accounted after the death , for then the party was Q^y,^ ^ ^^^^ murthered,and not after the ftroke /o/.s^. or ?-i4 aoi^ice to ©janti 31uto?s or poyfon given ; Coke lih.^SoL^ij 42. in H(f)'^o;/'s Cafe. A third obferved by the Lord Coi£ (writing upon the Statute 8H.6. c. 12. which makes it Fe- lony to fteal away Records } upon thefe words in the faid Statute , Their Trocurers^ Cotmfellors and Abettors , faith this Ad: , ex^refly extendeth to Acceffaries before , \.7,& £^v\\,& and leaveth Ace claries after to ^^f,yuftice ^Ij^ con(lru[iion of La^w ; yet tpere may be Accellanes aiter the Fad: , for w^enfoever an offence is made a Felony by Adt of Par- liament, there lliall be Acceffaries to it , both before and after , as if it had been a Felony by the Com- mon Law : And therefore, though this A(5t expreffeth only Acceffa- ries before, yet it taketh not away Acceffaries after, but leaveth them to the Law, contrary to the Opi- Stamf.p/.c«r. nion of Mr. Juftice Stamford. '^°' And again, by the Statute of 8 H.^.c.2^. the 8 H. 6. c, 29. Infufficiency or w^ant of Freehold , is no caufe of Challenge to . Aliens who are Im- panellec| in CafesJof 'Bloou* 2.1 j pannelled with Aliens, notwith- ftanding Mr. Juftice Stamford's f^f^^^^^'r Opinion, TL Cor on. i6o. for this Statute faith , That the Statute z H. 5. c. I. JhaU extend only to 2H. $.€.3. Enquefts betwixt Denizen and ^ TDenizen. But enough ( and perhaps too much} hath been faid in mention- ing the miftakes of that Reverend and Learned Judge Sr. WtUiam ^^^^ ^^^^^ Stamford^ in that Book of his ford,2(;./^'"^^^ ^/ i_ ^ 1 ' t ' r \ ^ the Common the Crown, which it feems by the ^^^s. Title of it hath been corred:ed, amended, and enlarged, fincethe firft Impreffion of it ,• which I have not urged in the leaft to de- tract: from the Learning and Ho- nour of that great and learned Judge , or from the value of that Book, which notwithftanding there may be a few miftakes found in it, yet is of as high eftcem as any Book of the Law , extant upon that 'Subje(!i ; but principally to fhew, that he may as well erre in his Opinion concerning Grand Ju- • rors 1 2. 1 6 9DUiceto®?ait5 3uco?0,&:c. rors finding the Special matter , as inthofe mentioned; and that no human Author, in the Law, or any other Science , is infallible ; and that we muft be very careful how we ground any Law upon the bare Opinion of any one , or two per- fons (though of never fo great Sarts or eftcem) whereby to ju- ifie or maintain a great Inconve- nience in pra<3:ice, efpecially in Cafes of Blood , as before hath been fliewn. FINIS, 1 i jj W^^IMW.'!"!" W"^;:' /. « 1 \