IT is the great happi­ness, freedom, and li­berty of the English Nation, that (in all common and ordinary Trials) of offences Criminal and Capital, as Treasons, Murthers, Felonies and Misdemeanors, each Freeman (and so are all the people [Page 2] of England, as to this) shall receive his Trial per pares, by his equals; which is well provided for by the great Charter of the Liberties of England, in these words; No Free­man shall be taken, or Imprisoned, or disseised of his Freehold, Liber­ties, or Free-customes, nor be Out­lawed, banished, or in any manner destroyed, &c. but by lawful Judg­ment of his Peers, or by the Law of the Land. This Chapter of Magna Charta is partly repeated in a later Statute,25 E. 3. 4. 5 E. 3. 9. 42 E. 3. 3. Vit. Abbot St. Alban. 143. and there Law of the Land is expounded [Indict­ment] process by Writ original, and course of the Law: Another Sta­tute recites it, and instead of the words Law of the Land, puts in Process of the Law, as equivalent and Synonimous, signifying the same thing. And again, a Statute of that King says,37 E. 3. 18. No man shall answer without Presentment be­fore the Justices, or matter of Re­cord, or by due Process and Writ original, according to the old Law of the Land,Cook 3. Inst. Tit. Indict. 136. as it is well ob­served [Page 3] by the Lo. Cook (that Ora­cle of the Law) In pleas of the Crown, and other Common offen­ces and Nusances, the King cannot (in an ordinary way) put any man to answer; but he must be appri­sed by Indictment, or other matter of Record. For, by the Law of the Land, a Felon or a Murtherer can­not be convictedExcept by Utlawry. or attainted (though he confess the Felony or Murther) until a grand Jury have presented the offence; nor can a­ny person (generally and ordina­rily be convicted or attainted, or have Judgment of life, or Mem­ber) upon any Criminal accusation; but there must be two Juries pass upon him, at least 24 persons, the one a Grand Jury (ex parte Regis) to present the offence fit for a tri­al; the other a petit or lesser Jury, inter Regem, & personam accusat. to try the truth of that Present­ment No Peer, or Subject, can be Convicted by Verdict; but the Offence must be found by twenty four.. The Grand Jury com­ing from all parts of the Coun­ty [Page 4] It is not sufficient, that they dwell in the County, but they are to be of the Neighbourhood; nay, le plus procheines to the place of the fact; as by Artic. su­per cap. 9. it is appointed, They must he most near, most sufficient, and least suspi­cious. ibid., the other Jury, of the very neighbourhood de vici­netto, where the offence was committed; for, vi­cini vicinorum facta op­time praesumuntur scire; and so in probability of Law, are presumed to know something experi­mentally (besides what they have by Testimony) both of the quality of the person, truth, and nature of the offence, with all its circumstances, and happily the credit of the Accuser and his Wit­nesses. It is not sufficient that they dwell in the County, but they are to be of the Neighbourhood, nay, le plus procheins to the place of the fact, as by Artic. super cap. 9. it is appointed; They must be most near, most sufficient, and least suspicious, ibid. The first being called a Grand Jury, or a Great Jury, either in respect of their number, being above twelve, (the general certainty of all other Juries) and may be as many as [Page 5] the Court please, but usually ex­ceed not 23, and in good prudence (when there is much, or weighty business) there ought not to be a lesser number, for if there be less or more, they may be so divided, that there can be no verdict (as by experience hath been observed) for less than twelve agreeing, can­not make a Legal verdict: Or they are called Grand in respect of the quality of their Persons, and greatness of their Estates, a­bility of their Judgments (being of good Education) or lastly (which I conceive the best reason) that, propter excellentiam, they are styledThe Kings Jury. Juratores pro Do­mino Rege pro Corpore Com. Ju­rors for our Soveraign Lord the King for the County of S. and as the Commons in Parliament are to the whole Kingdom, they have an unlimited power to present all offences committed in their Coun­ty, that are contra Pacem, Coro­nam, & dignitatem Regis, against the Peace, the Crown, and dignity [Page 6] of the King, against either Statute or Common Law, they being the great and grand Spring, or Pri­mum mobile of the Court, that gives motion to all the other wheels; their Presentment being the key, that either opens or shuts the proceedings of the Court in every offence. And therefore it is that the Law of England takes care, that as well the Grand Jury, as the other Jury, consist of per­sons that are probi, & legales ho­mines, good and lawful men; each man must be probus, quasi probatus, an approved honest man; vel a Graec. [...], & qui progredi possit praegredi debet, he that will go on in vertue, certainly ought principally to be chosen to attend the Courts of Justice. It is called, Justitia, quasi juris statio, vel status, quod per Justitiam, jus stat, i. exercetur. Jus à Jo­vis nomine. Jus qu. Jovis os; omne enim Jus & Justitia à Deo est. It is cal­led Justice because it is the Stand­ard of Right, misera servitus ubi Jus vagum. Justice being one of the Cardinal vertues ought to be [Page 7] attended by none but the virtuoso, the most vertuous, pious, and in­genuous persons; probi signifying, not only faithful, but skilful; none can be presumed to be faith­ful in keeping an Oath, v. Statut. 3. Ed. 1. c. 11. Forasmuch as many being indicted of Murther, and Culpable of the same, by fa­vourable Inquests taken by the Sheriff, and by the Kings Writ of Odio & Atia be replevied unto the coming of the Justices in Eyre. It is provided such Inquests shall be taken by lawful men chosen out by Oath (of whom two at the least shall be Knights) which, by no affinity with the prisoner, or otherwise, are to be sus­pected. that wants skill to know how to perform his duty; What expectation can there be of a good Verdict, from a bad or ignorant man? Can he that is not capable to un­derstand a Cause, ever make a right Judgment of it? Will a Liar present a truth; a Thief convict his fellow thief; a Man of blood a Murtherer? or, Who can expect Justice from him who neither to his God nor to himself is just,5. H. 7. fol. 5. Coke l. 9. f. 56. 9 H. 3. c. 26. 6 Ed. 1. c. 9. Regist. fol. 133. or true? He that believes Judges are quasi Dei, Gods (as the Scripture calls them) or that God sits amongst, and is pre­sent with Judges in Judgment (as in the Scripture sense it is truth, and ought to be believed) cannot [Page 8] but apprehend how unreasonable it is, to bring such a Jury before such a presence, to act in a con­cernment of so high a nature, as the life of a Man; whose verdict ought to be veredictum, a true saying,Juramentum quod mente Ju­ratur. quoddam Evangelium, as the Gospel they swear upon, dictum veritatis, the saying of Truth it self (especially as it is the verdict of the Jury of life and death) who have the advantage of hearing, not only the Accuser and his Witnes­ses, but also the party accused, and his Witnesses face to face. They are called, although aIn respect of the Grand Jury. Petty Jury, yet a Jury of life and death, which the Grand Jury are not; although they enquire of the same offence, from the great power in their hands to acquit or condemn the life of a man, according to their evidence. Upon whose ver­dict, the Judge according to Law grounds the Judgment of life or death, of acquittal or condemna­tion; and as a Jury may give a just verdict (as to themselves) [Page 9] upon a false Testimony given to them, so may the Judge (as to himself) give a just Judgment upon a false verdict given by the Jury. For as the Jurors are excu­sable, that give their verdict, se­cundum allegata, & probata, per sacrum Testimonium, by what is alledged and proved to them by the Oaths of Witnesses, or con­fession of the party; even so that Judge is excusable (in foro Con­scientiae) that gives Judgment up­on a verdict (though false) for he doth not therein Jus dare, but Jus dicere secundum veredict. Jur. upon the verdict of the Perit Jury and presentment of a Grand Jury, and this is fully verified in two re­markable Coke Instit. 3. fol. 232. Glouc. Assizes xiij. Car. 2. Regis (Harrison's Case) Nimia praecipitatio & me­rosa cunctatio; two dan­gerous extreams. Cases noted in the Margent; a suffici­ent caution to all Judges, not to try any for Mur­ther, where they have not an infallible evidence of the death of the party slain.

And as every Juror ought to be probus homo, an honest and a skil­ful [Page 10] man, so ought every one to be legalis homo, a person so qualified that the Law allows of; for a man may be an honest, prudent, and just man, and yet in the eye of the Law not a lawful Jury-man; for in one sense he is not legalis homo, that is not ligeus & subditus Dom. Regis Angliae, vi. Coke 3. Inst. fo. 32. tit. Petit Treason. for the Law pro­vides that the Kings Liege people shall be tried per pares, by their equals, their fellow Subjects: In a proper sense he is said, in Law, not to be legalis homo, that is homo utlagatus, an outlawed person, one that is extra legem positus; who is no better than one that is ex­traneus, an alien, a stranger, one not only put out of the protection of the Law, but such a one as the Law will have nothing to do with (as he so stands) in Courts of Ju­stice, to serve as a Juror; nay, such a person being a Juror, will make the verdict void, and it is a good exception in arrest of Judgment, that any of the Jurors were out­lawed. But in a larger sense he is [Page 11] not legalis homo, such a legal and indifferent person (as the Law re­quires) who is either in such a degree of blood to the prisoner, as the Law presumes him partial, or in such an evil reputation,He is liber & legalis ho­mo, that is a man of fame and credit, that doth en­joy liberam legem. Coke 3. Inst. fol. 22. 11 H. 4. Coke 3. Inst. fol. 32. as the Law presumes him unjust; for as it is not fit for a Father to be of a Jury to try his Son, or the Son the Father; Brothers, Uncles, or near Relations to try one another, so it is not fit that he that is parti­ceps criminis, or indeed criminalis homo, a man that stands judicially accused, indicted, convicted, or at­tainted for Felony, to try another for Felony (or indeed to be a grand Juror to present it) the Law pro­vides that each Juror ought to be a person, rectus in Curia, that stands right in Court, above and against all natural, rational, and legal excep­tions. Qui accusat integrae famae sit & non criminosus; for certainly, to clear the matter of fact (as a Juror of life and death) and wise­ly to discern the Cause in question, [Page 12] upon a doubtful and perplext Evi­dence, many times, requires as great ability in the Jurors of life and death, as in the Judge to exa­mine the cause, and to give Judg­ment upon the Verdict; there be­ing much more of Black-art used to darken and obscure the truth of the fact (in cases of Bloud) a­mongst the Jurors (especially if either a great Person, or rich, be concerned therein) than possibly can be, to prevent or prevaricate a right Judgment, in the Judge; or by any dust of gold, power or fa­vour, to put out his eyes, or falsifie his clear sight, who sits every way above such a temptation.

The Jurors of England (espe­cially in the Circuits) with their unequal yoke-fellows the Tales­men, are (for the most part) the very scandal of the Laws practical of England, who seldom serve, but to serve a turn'Tis hard to get an unbiassed Jury. Some serv­ing, that had more need to be relieved by the 8 d. than discretion to sift out the truth of the fact., to obey a Su­periour, pleasure a Friend, or to [Page 13] help away (in a hurry) a quick dispatch of practice: This fault is not in the Laws of England, but the male execution of them. The Statute of the 27 Eliz. c. 6. pro­vides that each Juror should have at least four pounds per annum in Lands, Tenements, or Rents; and this must be their sufficiency, where theCoke 1. Inst. 272. debt or damages (or both together) amount to forty marks. The general course of the world being to esteem men accord­ing to their Estates, Quantum quis­que sua nummorum servat in arca, tantum habet & fidei. Jurors that have Estates to lose, will be afraid to commit perjury. The best things abused, alwaies prove the worst; the sweetest Wine makes the sharpest Vinegar, not that the fault is in the Wine, but in the use and abuse of it: were better care taken in return of JurorsIn ancient time the Jury, as well in Com­mon Pleas as in Pleas of the Crown, were twelve Knights. Glanvile lib. 2. c. 14. & Bract. fol. 116., I dare say, the trial by twelve [Page 14] would not be more ancient than ex­cellent; the Excellency of it appears, in the long, constant, and general use of it amongst the people of England. This way of trial, to have all their Estates, Injuries, and Lives tried by twelve men, and those Neighbours, of our own degree and parity, and without exception (upon a lawful challenge) certainly nothing can be said more for the commenda­tion of it, than the constant pra­ctice, and unanimous approbation of it in England, to this day, since the first beginning of it: The trial by twelve being very ancient, though Mr. Daniel, and Polydor Virgil deny it to be ancienter than the Norman Conquest. But Polydor (as says the excellent Sr. H. Savil) was an Italian, and a stranger in our Common-wealth, and so deceived! Lamb. in verbo Centur. D. Spelman in Jurat. vide Consult. de Martic. Walliae v. 3. It is of English Saxon de­scent, as by the Laws of King Etheldred, cap. 4. thus; In all Hundreds let Assem­blies be, and twelve Free-men of [Page 15] the most ancient together shall swear, not to condemn the Inno­cent, nor absolve the guilty. It was in use with the French, in the Age of Charlemaine. They that would see more of this, let them read that learned and ancient Book written by Judge Fortescue, in commendation of the Laws of England. I shall leave this Sub­ject, having briefly touched upon the happiness and liberty the Sub­jects of England enjoy, to have their trials for their Estates and Lives, per pares, by Juries of twelve men; what manner of persons Grand Jurors and those Jurors ought to be, and of the excellency and antiquity of such trials; in the next place (after I have shewed the heynousness of Murther, both by the Laws of God, and the Laws of this Land, and made some little parallel therein) I shall briefly shew, That it is the duty of all Grand Jurors, in all Cases of blood, touching the death of any reasonable creature, by [Page 16] violence, or by the hand or act of any other reasonable Creature, where the Bill of Indictment is brought unto them for Murther, in case they find, upon the Evi­dence, any probability that the person said to be killed in the In­dictment, was slain by the person charged to do it in the Indict­ment) to put Billa vera to that Indictment, without foreclosing the Court, by judging amongst themselves the points of Law that may arise in that case, as whether it be Murther, Manslaughter, at Com­mon Law, or upon the Statute Se def. per Infortunium, Justifiable, or otherwise; none of these special matters being to be found by them that are but Inquisitors and Ac­cusers for the King; not tryers of the offence, hearing but Witnesses on one side, and whose present­ment, or verdict, is not final, but must be put to Issue betwixt the King and the party to be tried by another Jury, whether there be truth in it or no, whatever the [Page 17] practice of Grand Jurors hath been (of late) to the contrary; this be­ing the chief aim and design of this Tract.

I have not met with any a­mongst Christians, and I believe there is none amongst Heathens, or rational Creatures, but believe, whatever their practices are to the contrary, that the shedding of In­nocent bloud is a great offence, a crying sin. To take away the life of a Plant, is but the vigour in the juyce; and the life of a Beast, is but the vigour in the bloud; but the life of a Man is aGen. 9. 4. spirit, and spiritual substance, the breath of God breathed into him, and not to be extinguished unjustly by the hand of man. Certainly, vox sanguinis est vox cla­mantis, it is one of the four sinsSunt vox clamorum, vox sanguinis & Sodomo­rum, vox oppressorum, vierces detenta laborum. that the Scri­pture calls, Clamantia Peccata, Crying Sins, that cry to God for vengeance (even in this world) upon the Manslayer. Im­mediately after the Floud God [Page 18] commanded, that blood unjustly shed should be required by the Magistrate of the Manquiller. It is within the Magna Charta of God himself, and by an Act of Parliament made in Heaven, never to be repealed, It is enacted, that he that sheds mans blood, by man shall his blood be shed. At the hand of every mans Brother will I re­quire the life of man, says God himselfSolus Deus qui vitam dat vitae est Dominus; nec potest quisquam eam juste aufer­re nisi Deus, vel gerens au­thoritatem Dei, ut Judex. And this was the reason, that amongst Christians it was not law­ful for the Lord to kill his Villain.. God many times al­lowed of Restitution, and other satisfactions in other Felonies, but never in case of blood; for, who can make satisfaction for the life of a Man?

The first Murtherer that we read of was the Devil, who the Scripture says, was a Murtherer from the beginning; in quantum traxit in peccatum, in drawing our First Parents into sin, and so to death. The next that we read of [Page 19] (for the Devil would not be long before he had tempted more to his own sin) was Cain, that kill'd his Brother Abel, and it seems ve­ry desperately shed much of his blood in many parts of his body, for the word is in the Plural num­ber, vox Sanguinum, the voice of his Bloods; or, because the Bloods of the future posterity of Abel (that he might have had) were shed in him, by the Murther of Cain. It is true that Cain's blood was not shed by that Law, al­though he kill'd his Brother, the World being not then peopled, nor that Law then so positively given by God, and the example and terrour to others could not then be so great (which is oft the great end of punishment, ut poena ad paucos metus ad omnes perve­niat;) and therefore Cain was to survive by God's special appoint­ment, not by any favour of God towards him, but that he might have Gods mark (as a Murtherer) upon him, to the Terrour of all [Page 20] others that should see him. What visible mark and distinction this was, is but conjectured at; some think it was a horrible shaking over his whole body, as the Septu­agint translate, who, for Thou shalt be a Vagabond and Runagate, read, He should Occultum flagellum. The wound of Conscience. sigh and trem­ble; or an exceeding shame and confusion, in that he ran from place to place to hide himself; or some visible mark in his face, as Lyra­nus thinketh: Some Hebrews think it was a horn in his fore­head; some, a letter; some, that a Dog led him. The Scripture is plain, that for this Murther he was to be a Fugitive, and a Vaga­bond upon the face of the Earth; one (as the Text says) that went from the presence of the Lord, to whom the Earth was accursed; and certainly the guilt and shame he carried about him, like the bloody Jews that murthered Christ, and are to this day Vaga­bonds over the Earth; or those bloody surviving Regicides, that [Page 21] murthered the best of KingsK. Charles the First. (yet live, with that black mark of King-killing upon them) was, and is, a Judgment greater than death it self; as it is in the Psalms Psal. 59. 11., Slay them not lest my people for­get it: but scatter them abroad amongst the people, and put them down, O Lord, our defence. And that was the Judgment of Cain, who before his natural death (some say) was kill'd by Lamech, who shot in a Bush at a Beast, and kill'd Cain Theod. quaest. 44. in Gen.. And the Turks at this day believe, that at the Day of Judgment, when the Grave and Hell shall deliver up their dead, Cain, that Fratricide and murtherer, shall lead, and be as it were the Captain of the damned in Hell.

Amongst all the Laws of God, which he himself appointed the Israelites (his own People) when they were to inhabite Canaan, the Land of Promise, there was not any mercy, or City of Refuge appointed for a Murtherer or Man­slayer, [Page 22] but only where it was done unawares; as several clear Cases are put in Scripture to make this plain,35. Numb. 23. 35 Numb. 23. v. If one throw a Stone that a man die thereof (and saw him not) but did it una­wares. So the 19. Deut. 5. When a man goeth to the wood with his Neighbour (mark how strongly this Case is put,19. Deut. 5. with his Neigh­bour, his Friend, whom he had no unkindness for) to hew wood, and as his hand fetcheth a stroak with the Axe to cut down the Tree, the head slippeth of from the helve and smiteth his Neighbour that he die; in these, and many such like cases there put, he shall flee to the City of Refuge, and stay there un­til the Congregation shall judge betwixt the Manslayer, and the Avenger of blood, whether he did it wittingly, or unawares. The Hebrews understand by the Con­gregation, the Senators and Chief Judges of the City; and although it were done unawares, and so adjudged by the Congregation, [Page 23] yet so hainous was the offence of Blood before God (though no­thing of mans will in it) that even such Manslayer was never (during his life) afterwards to de­part from the City until it was so adjudged by the Congregation, or until the death of the High-Priest, (who was a type of Christ that set us all free;) for if he did de­part, then the Avenger of blood, (who was next Kinsman to the party slain) might, if he met him, justifie the killing of him. So it is very apparent, that before these Cities of Refuge were appointed for mercy to him that had killed another unawares, such a Man­slayer might have been killed by the Avenger of blood, as well as he that had killed another wil­fully: and after they were or­dained, they could not be intend­ed to shew Mercy, or to be an Asylum or Sanctuary for any that had willingly, wilfully, or by a passionate assault killed another. If it be objected (as what sin or [Page 24] offender is there that hath not his Advocate) that it is said in the 19. of Deut. 11. v.19. Deut. 11. But if any man hate his Neighbour, and lay await for him, and rise against him and smite him that he die, and then flie to any of those Cities, he shall be fetcht thence, and delivered into the hands of the Avenger of blood, that he may die. Thine eye (though the tenderest part thou hast) shall not spare him (how comely soever his person may seem) but thou shalt put Innocent blood from Israel, that it may go well with thee i. e. with the Magistrate and People.. If it shall be inferr'd from hence, That the Cities of Refuge were ordained for all sorts of Manslaughter, but where it was done of malice, fore­thought, ancient hatred, or with a sedate and malicious mind; hereby implying, that he that kills another upon a sudden quar­rel, assault, or in heat of blood (as it is termed) might flie to a City of Refuge, and find Sanctuary; It must needs be upon a very great [Page 25] mistake. Nor can the Judicials of God herein (put into several plain and illustrating Cases by God him­self) be reconciled if it should be so understood: It is said in the 31. Exod. 13. If a man lay not wait, but God deliver him into his hands, then I will appoint thee a place whither he shall flie. The meaning of the delivering him into his hands, must of ne­cessity be understood of such a providence that could not be fore­seen, and so not possible to be pre­vented by the Manslayer, where­in there could be nothing of his will, but purely chance and un­awares, as in the Cases put before of casting the Stone, and killing one he saw not; cutting of the wood, and falling of the helm of the Axe, or Bough from the Tree; where many such Examples might be given, which the Law of Eng­land now sums up in one head or Reason, viz. Utrum quis dederit operam rei licitae an illicitae. Stamf. lib. 1. fol. 12. Where one is [Page 26] doing a lawful and justifiable act in his Trade, Calling, or lawful Re­creation, and by chance and un­awares, another happens to be kill'd by him, then he shall have a Pardon of course now instead of a City of Refuge (as shall be here­after shewed) for it is very plain by express places of Scripture, that all other voluntary killing of a man unlawfully, found no Mercy, no City of Refuge, but there the Manslayer was to die by the hand of the Avenger of blood (it ap­pearing so before the Magistrate or Congregation:) As to instance in some few Cases out of Scrip­ture.21. Exod. 12. 21. Exod. 12. He that smiteth a man that he die, shall be slain for it: if any destruction follow, there he shall give life for life (except it be unawares.31. Numb. 16, 17, 18.) So in the 16, 17, 18. v. of the 31. of Numbers, If any man smite another with an instrument of Iron that he die, then he is a murtherer, and the Murtherer shall die for it. If he smite him by throwing a Stone [Page 27] that he die, he that smote him is a Murtherer, All these sud­dain Actions. let the same murther­er be slain; therefore the Avenger of blood himself shall slay the Mur­therer. When he meeteth him he shall slay him (mark the Ingemi­nation,) he shall surely slay him, as it is in the 21. Exod. 12. He that smiteth a man that he die, shall die the death; that is, shall surely die; for this doubling of the word, importat majorem cer­titudinem, importeth greater cer­tainty; and yet in all these Cases, not one word of malice, lying in wait, or enmity. He that smiteth another that he die; sive intendat occidere, sive non, shall die. It is a general Law, He that killeth should be killed again, and this Law is grounded upon the Law of Na­ture; for like as it is agreeable to Nature, ut putridum membrum abscindatur, ut reliqua conserven­tur, that a rotten member should be cut off that the rest may be preserved; so a Murtherer is to be killed, ne plures occidantur, lest more should be killed. This [Page 28] Law is given unto Noah, Gen. 9. Gen. 9. when the World was restored; and here it is but repeated and renewed. The Laws of other Nations herein consent with Mo­ses: The Athenians did severely punish Murther, expelling 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 Cor­nelia, among the Romans, He which had killed another with sword, or poyson, or by false Te­stimony, lost his head, if he were of the better sort; if of meaner condition, he was hanged on the Cross, or cast unto Wild beasts, that was himself like a Tiger a­mongst men; Simler. And the reason of the severity was, because Murtherers deface the Image of God in ManBy Murther a reasonable Creature is lost, which all the World cannot restore. Trees, though they be cut down grow again, but a Man once slain can never be recovered. Pericl. apud Plut. in ipsius vita. And for the most part, unless the Mercy of God be the greater, the Soul is lost with the Body., and lay violent hands to take away his temporal [Page 29] life, for whom Christ died to give eternal life. A King (an inferiour god) would take it ill to have his Image, his Picture, wilfully stab'd through and cut in pieces by any, because it is his. It is very plain, by the Judicials of God, that where there was any wilful smi­ting, or striking (though sudden­ly, and from a present passion, occasioned by a sudden provoca­tion) whereby death sollowed, in which the will, fury (which is a temporary madness) assent, or assault of the Manslayer, might appear, there was no City of Re­fuge, or Mercy, by Gods Law pro­vided for it; only what was done unawares, and unforeseen (as aforesaid) found a City of Refuge, otherwise what can be meant by those words, unawares, and where he saw him not: and in these very Cases of killing ano­ther, ex improviso, unawares, or by misfortune, for whom there was a City of Refuge provided (by God himself) yet there the [Page 30] Avenger of blood, if he overtook the Manslayer before he got to a City of Refuge (and in some pla­ces it was many miles to one of them) he might justifie the killing of him.

During the Israelites sojourn­ing in the Desert, the Tabernacle (where mention is made of the Altar) was their Refuge in such a case; afterwards in the Land ofBezer of the Reuben­ites, Ramoth of Gilead of the Gadites, Golan in Bashan of the Manassites; these three on this side Jor­dan, Deut. 4. 41, 43. these three appointed by Moses. Canaan there were six Cities of Refuge appointed, three beyond Jordan, and three on this side. Three otherCadesh in Galilee in Mount Naphtali, Shechem in Ephraim, and Kiria­tharba which is in He­bron in the Mountain of Judah; these three last were beyond Jordan, and appointed by Joshua: Josh. 20. 7. equally distant one from another in Canaan. R. Salom. Jarchi, Deut. 19. 3. Ci­ties of like nature God promised the Israelites, upon condition of their obedience, after their Coasts were enlarged; but it seems their disobedi­ence hindred the accom­plishment thereof, for Scripture mentioneth not the fulfilling of it. The manner of Examination of one that fled to the City of Refuge [Page 31] was thus; The Consistory or Bench of Justices who lived in that quar­ter where the Murther was com­mitted, Paul. Fag. Numb. 36. 6. placed the party, be­ing brought back from the City of Refuge, in the Court or Judg­ment Hall, and diligently enquired and examined the cause; who, if he were found guilty of voluntary Murther, then was he punished with death; but if the fact were found casual, then he was safely conducted back again to the City of Refuge, where he enjoyed his liberty, not only within the Walls of the City, but within certain Territories and bounds of the Ci­ty, within such limits until the death of the High-Priest (that was in those days) after whose death he was at liberty;20. Joshua 6. Josh. 20. 6. By this means the offender, though he was not punished with death, yet he lived (for the time, although the offence was involuntary and praeter intentionem) a kind of Exile for his own humiliation, and for the abatement of his wrath who [Page 32] was the Avenger of blood.Masius in Josh. cap. 20. The Areopagitae had a proceeding a­gainst casual Manslaughter, not much unlike, punishing the offen­der [...], with a years ba­nishment. It is not agreed amongst Expositors, why the time of this Exilement was limited to the death of the High-Priest at that time: but probably thought, that the offender was therefore confined within that City, as within a pri­son, during the High-Priests life, because the offence did most di­rectly strike against him, as being amongst men, [...], ac Princeps Sanctitatis, The chief god on earth. These places of Refuge appointed by God, differed from those of Hercules, and Romulus, and others, Heathens, yea, and Christi­an Kings formerly of this Nation, because God allowed safety only to those who were guiltless in respect of their intention: but the others were common SanctuariesAsylum Sanctuarium. In the time of King Henry 8. these were places of Sanctuary; All Parish Churches, Cathe­dral and Colle­giate Chappels dedicated, and their Church­yards and San­ctuaries to them belonging; and Wells, West­minster, Man­chester, North­hampton, Nor­wich, Darby, and Lancaster. Afterwards, in the same Kings Reign, Manchester was determined and Westchester appointed, Westchester discharged and Stafford appointed, by Letters Pat. from the King. Stamf. fol. 116., as [Page 33] well for the guilty as the guiltless: If any man did fortuitously, or by chance kill another man, in such a case, a Liberty was granted unto the offender to flie, at first unto the Altar for Refuge, as is implied by that Text of Scripture, If any man come presumptuously unto his Neighbour to slay him with guile, thou shalt take him from mine Al­tar. Exod. 21. 14.These places of Sanctuary ex­tended not to Treason, Wilful Murther, Rape, Burglary, Robbery, Sacriledge, Burning of Houses and Barns with Corn, &c. 32 H. 8. 12. 33 H. 8. 15. It seems they did ex­tend to all these offences before these Statutes. All Statutes made con­cerning Abjured persons and Sanctuaries, made before 35 Eliz. were repealed by the 1. of King James c. 25. Clergy is since taken away by several Statutes for those offences aforesaid, for which Sanctuary by the aforesaid Statutes was taken away..

And it is thought that Temples, as they were built, had the like priviledge; as, Joab fled to the Temple, and took hold of the horns of the Altar. The Reasons why the Lord appointed Cities of Re­fuge are principally these; First, lest that the Innocent party might be slain, by the Friends of him whom he had killed, before [Page 32] [...] [Page 33] [...] [Page 34] his cause was heard, and the man­ner of the slaughter determined by the Judges. Secondly, it was so appointed, that he might stay there to the death of the High-Priest, who was a type of our Blessed Saviour, by whose precious death we are all set free. Thirdly, this was done ut menti eorum (hac ratione) medeatur, &c. to heal and allay the mind and fury of those which otherwise would delight in murther; for by his ab­sence and continuance of time, the rage of those that sought his life would be qualified, and therefore God provideth, that they should not still be provoked by the con­tinual sight of him. Fourthly, and further by this, that he that killeth a man unwittingly is ap­pointed to flie, it is shewed (quod reus poenae efficitur) that yet he is guilty of some punishment. So that involuntary killing was pu­nished with a kind of Banishment among the Israelites: So likewise amongst the Athenians, such kind [Page 35] of Manslaughter was censured with one years Exile. And so a­mong the Israelites, he that e­scaped from the Avenger of blood for it was but an escape) was not to go out of the limits and bounds of the City, if he did, it was law­ful for the kinsman of the man that was slain to kill him.

There is a manifest distinction of voluntary and involuntary Murther or killing, grounded upon the Law of Moses: Invo­luntary killing is of two sorts, there are [...], chances unlookt for and sudden events, as when one shooteth an Arrow (upon a lawful account, and killeth one unawares, as Peleus killed his Son, being in hunting with him. There are besides these, [...], er­rours and oversights, as the Fa­ther beateth his Child, purposing only to chastise him, and do him good, and he dieth of it. There are likewise two kinds of volun­tary or wilful Murther, ex propo­sito, of purpose, & ex impetu [Page 36] animi, in heat or rage; these kind of Murthers are called [...], Iniquities, one may be slain ex proposito, purposely, per insidias, by lying in wait, when one watch­eth for the life of a man, and ta­keth him at advantage, as Joab killed Abner, and afterwards fled to the Temple, and took hold of the Horns of the Altar, which notwithstanding could not privi­ledge him; and afterwards killed Amasa, they suspecting no such thing; so Ismael killed Gedoliah: or else per Industriam, when one of set purpose picketh quarrels, and seeketh occasions to provoke a man that he may kill him. Both these kinds are touched here, To­stat. quaest. 16. Then one may be killed in heat and rage when there was no purpose before, as Alexan­der the Great killed Clitus. This kind though not so grievous as the other, yet is a kind of voluntary killing, for whom there was no mercy by Gods Law, as it is in the Margent of the Great Bible, Wilful [Page 37] Murther cannot be pardoned with­out Gods high displeasure. Nay, as it is more fully in the Text it self,19. Deut. 13. Thine eye (though the most compassionate sense) shall not spare him, but thou, whoever thou be, shalt put away innocent blood from Israel, that it may go well with thee. Now the putting away of Innocent blood is by revenging it on him that spilt it, as it is in the 10. v. of the same Chapter, That Innocent blood be not shed in the land, which the Lord thy God giveth thee to inherit, and so blood come upon thee; that is, that the Blood of the party slain be not im­puted to thee: This Imputation of blood, which is of more weight than the Imputation of all Adams sin, because the command is more immediate and legible to us; it con­cerned all the Israelites in gene­ral, but more especially doth it concern those chosen by Law to make Inquisition afterPolluitur & foedatur terra, Numb. 35. 30. 33. Ye shall take no satis­faction for the life of a Mur­therer which is guilty of death, but he shall be surely put to death; for ye shall not pollute the Land where­in you are, for blood defileth the Land, and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it. Innocent [Page 38] blood unlawfully and wilfully shed as principally Grand Jurors are; for whose sakes, and that the fol­lowing discourse may fix the bet­ter upon their Judgments, and thereby make a right impression upon their Consciences to be more circumspect and careful in their Presentments in cases of Blood, I have premised (as I conceive) what was the will and Law of God (as he himself hath declared it, and left it upon Record to us in his Judicials to his people Isra­el) who received Laws and Judg­ments from God himself for their whole model and system of Poli­tical Government; agreeable to which I might add the mind of our Saviour Christ under the Gos­pel (who is the best Interpreter of the Law) in bidding Peter put up his SwordMatt. 26. 52., and his inter­pretation upon the sixth Com­mand, He that is angry with his Brother unadvisedly shall be cul­pable of Judgment Matt. 5. 22. Qui irascitur sine causa, quan­tum ad volun­tatem, homicidi­um fecit. Chrysost. hom▪ in Matt. Ira est appevitus ultionis.. I shall [Page 39] in the next place endeavour to ma­nifest, how parallel the Laws of England have been, and are, to the Judicial Laws of God in the pu­nishing of Murther and shedding Innocent blood, and extending mercy where it is done praeter in­tentionem, unawares and by mis­fortune, or in the necessary defence of a mans own life or property, and what Asylum is provided for such; and how the course and practice of the Laws of England ought to be, in presenting and making In­quisition (by Grand Jurors) after the same.

Not to look so far back to find what the Laws were (in case of Felony and Murther) as to the time of the Saxons Kent, South-Saxons, West-Saxons, East-Saxons, East-Angles, Northumber­land, Mercia. Heptarchy in England, when the Monarchy had many heads, being Bellua multorum Capitum; and so for the most part had so many several Laws, each Prince either pleasing his own humor, or adapting his Laws to the condition and quality of the people he had to govern, [Page 40] which as they differed in their qualities, and constitutions, as much as the several Winds differ the se­veral Climates from whence they blow, out of the four Corners of the world, from whence many of their Kingdoms were differenced and distinguished by names; so did they differ in the nature and quality of their Laws: some of the Saxon Kings had excellent Laws, as Ina, as saith Venerable Bede L. 7. c. 16. & li 5. c. 4. p. 375., who flourished in that Kings time. The mulct or breach of Peace was forty shillings in the Mercian Law. In the West-Saxon Law, fifty shillings. The punish­ment of a Free-man was pecuni­ary, and loss of liberty, of a slave by whipping. Treason against the Lord was Capital, and could not be appeased with mony. Amongst the Laws of Canutus the King it is said,L. Canut. fol. 117. c. 56. Si quis in Regia dimi­caret, Capitale esto, nisi quidem Rex hoc illi crimen condonarit. If any should quarrel or fight in the Kings Palace it was Capital, [Page 41] except the King remitted the fault. They were unwilling to put any man to death, because of lessening their strength, being so much di­vided that for the most part there was an aestimatio capitis, a certain sum of mony, or Corporal punish­ment set upon every Murtherer and Felon, respecting the quality of the person killed, or he that killed him; yet amongst them there was strict inquiry after Blood, by punishing the offender according to their Laws.

And to look for it amongst the Danes, and their Laws, would be to as little purpose; for as it is well observed by Mr. Lambert Lambert L. Edw. Confess. c. 16. de Inven­tione Murdri., Temporibus vero Regum Danorum sepultum fuit Jus in regno, Leges & Consuetudines, simul sopitae, tem­poribus eorum prava voluntas, vis, & violentia magis regnabant quàm Judicium in terra. In the time of the Danish Kings, Right was buried, Laws and Customes were laid asleep together, the depraved Will, Strength and Vio­lence [Page 42] did reign and rule more than Judgment in the land.

Yet to make some amends we have it by good Tradition, that good St. Edward the Confessor, the last King of the Danes that was King of England) yet of Saxon blood, Collected out of the Danish, Saxon, and Mercian Laws, an universal and general Law (whence our Common Law is thought to have had its original) which may be true of the Written Laws,Ranulph. Cestr. l. 1. c. 550. Hov. 600. L. Ed. c. 35. in Hoved. not of the Customary and unwritten Laws, these being cer­tainly more ancient. Some say, that Edward the Third, before the Conquest,Malmsb. de gest. reg. l. 2. c. 11. set forth the Com­mon Law, called the Laws of Edward to this day, which St. Edward espoused as his Act, and falling last upon the work He carries the name. One says King Canute composed our Common Law, which St. Edward the Con­fessor observed. This King Ed­ward the Confessor was in his life of that Holiness, that he received [Page 43] power from above to cure many Diseases, amongst others the swelling of the Throat (called by us) The Kings evil; a preroga­tive that continueth hereditary to his successors, Kings of England, to this day; the powerful effect whereof hath been most eminent­ly manifested by the Touch of our most gracious King that now is (since his happy Return into Eng­land) upon very many thousands;K. CHARLES the Second. some (to my knowledge) that formerly derided that occult per­sonal Kingly vertue, inherent to the Imperial Scepter of England, being of St. Thomas his faith, that would not believe except they felt, now remaining fully satisfied of the truth thereof from their own experience of the cure upon themselves.

The aforesaid St. Edward, for his holiness, charity, and good actions, was Canonized for a Saint, having reigned over Eng­land twenty four years. The Kings of England at this day, in their [Page 44] Coronation Oath taken at the high Altar, swear especially to observe and keep the Laws of this St. Edward. These Laws so col­lected by this holy King Edward, were by William the Conquerer (to whom he had bequeathed this Kingdom of England by Will, though afterwards he was forced to get it by the Sword) confirmed in these words,An. Dom. 1087. Hoc quoque prae­cipio ut omnes habeant & teneant legem Regis Edwardi in omnibus rebus, as Mr. Lambert hath it, inter leges Gulielmi. Notwith­standing he informs us, that this King William (post acquisitionem Angliae) after he had obtained and setled the Kingdom in peace, in the fourth year of his Reign, Concilio Nobilium. Baronum suorum, by the advice of his Nobility, he caused to be summoned through­out England, the Nobles, Wise­men, and such as were skilful in the Laws, Rights and Customes of England, and elected twelve Knights out of every County, [Page 45] who were sworn before the King to make a true Collection of the said Laws and Customes. Nihil praetermittentes, nil addentes, nil praevaricando mutantes. Amongst these Laws we do not find Mur­ther punished with death. It be­ing so near the time of the Danes and Saxons, it seems he made no violent alteration of their Laws, but kept their custome of aestima­tio Capitis, or Corporal punish­ment. We find amongst his Laws these words,Lamb. inter Leges Gulielmi Regis fol. 126. Interdico etiam ne quis occidatur vel suspendatur pro aliqua culpa sed eruantur ocu­li, & abscindantur testiculi vel pedes vel manus, itaquod truncus vivus remaneat in signum prodi­tionis & nequitiae suae By the anci­ent Law of England, he that mahimed any Man where­by he lost any part of his body, the Delinquent should lose the like part; as he that took away another mans life should lose his own, Bract. lib. 3. numb. 4. So if the Defen­dant in an Appeal of mahime should be found guilty, Judgment a­gainst the Defendant should have been, That he should lose the like Mem­ber that the Plaintiff lost, by this means, a hand for a hand, &c. 40▪ Ass. 9. Mirror c. 4. & 5.. I com­mand that none be killed or hang­ed for any offence, but that his eyes be put out, and his Testicles, [Page 46] or feet, or hands be cut off, so that the Trunk of his body may re­main alive; in token of his Trea­son and wickedness: any punish­ment then, but loss of life and banishment, for it is said amongst his Laws, Prohibeo ut nullus ven­dat hominem extra patriam. I forbid that any person be sold out of his Country.

Now although that these kinds of punishments are not commen­surate to the offence, or to the Law of God, or to the Laws of England, in cases of Murther, there being not life for life; yet who is there almost amongst the Sons of men, that would not ra­ther chuse to be hanged, than to have his eyes put out, his Testicles, feet, and hands cut off, and to survive with such a brand of Ignominy.Lamb. in leges Edvardi R. c. 15. Lex Murdrorum. v. Stamf. lib. 1. fol. 17. Amongst the Laws of the Conquerer, in the Title Lex Murdrorum, it is there found; If any be found Murther­ed, the Village in whom he was so found, was within eight days [Page 47] to deliver the Murtherer; Justi­ciae Regis; if he were not found within one Month and a day, the Village was to pay forty marks; if the Village were not able, then the Hundred was to pay it, and this mony was to be sealed up, under the Seal of a Nobleman of the County, and sent into the Exchequer, there to remain a year and a day, to the end, that if the Hundred or Village could within a year and a day bring the body of the Murtherer to Justice, they should have their mony again; if they could not within that time take him, the Parents of him that was murthered should have six mark, and the King the rest; if he had no Parents, then his Lord or Master should have it; if no Lord or Master, thenHis Pledge or Surety. Se­lagus ejus, i. e. fide cum eo ligatus, that is, his Pledge or Surety; if he had none of these, then the King should have all the forty Marks (which was as much then as five hundred pounds now) sub [Page 48] cujus protectione, & pace degunt universi; If the Murtherer were found, and would not defend his Innocency, Judicio Dei, scilicet aqua, vel ferro, that is, stand in hot scalding-water, or pass barefoot over hot-bars of Iron, fieret de eo Justitia, let Justice be executed up on him; but what this Justice was, or what punishment he should suffer, some doubt there is:That is, so much as one paid for the killing of a man; by which it appear­eth, that such Government was in those days, as slaughters of men were most rarely committed, as Mr. Lambert collecteth. Lamb. Expositio verb. Estimatio. Flet. lib. 1. c. 42. Hoved. fol. 344. Some say it was ad voluntatem Regis, or the usual way of aestimatio Capitis, or Corporal punishment, and not to suffer death, because (as before is observed) there is found amongst those Laws, Ne quis occidatur, vel suspendatur, pro aliqua Culpa; though others are of another Judgment, that it was Capital if the King pleased, whatever the punishment was; you shall not read of any Insurrection or Re­bellion before the Conquest, when the view of Frank-pledge, and [Page 49] other ancient Laws of this Realm were in their right use.

There are many that are full of Sr. Thomas Moore's kindness, and think it too much that a man should lose his life for crimes un­der Murther, as for Theft, &c. (but none so kind to a Murtherer) for which anciently a loss of a Hand, Eye, Leg, or other mem­ber was in use; yet the party taken in the manner, hand ha­bend. having the stoln thing in his hand, in his possession, might be killed amongst the Saxons, he could not buy his Crime out; and the Spanish condemning to the Gallies, is thought by some the only way. Mr. Daniel will have it, that as yet (writing of King Henry the Second's time) they came not so far as Blood, which is not so; for King Henry the FirstHoveden saw. 471. in H. 1. Concil. Birghamstead. Concil. 197. L. K. Canut. c. 61. L. K. Ina 5. 37. Aethelst. (abrogating the were-gilde) by which a man might have bought out his offence, made a Law, says Hoveden, Ʋt si quis in [Page 50] furto vel latrocinio deprehensus fuisset suspenderetur; to hang the Thief: with whom Vigorniensis and Rad. Niger agree. And the Lo. Coke observes in the third In­stitutes, that before the Reign of King Henry the First the Judg­ment for Felony was not alwaies the same, but King Henry the First ordained by Parliament, that the Judgment for all manner of Felonies should be,9 H. 1. that he should be hanged by the neck until he be dead: Matth. Paris. continuat. 1005. After, in the latter end of the Reign of King Henry the Third, we find a Thief who had stoln twelve Oxen beheaded. Capital punishments have not on­ly been in use against Homicides and Felonies, but other Trans­gressors also, and amongst those who worshipped God rightly (as is well observed) we meet with no Divine precept before Judah, which makes Whoredom worthy of death, yea, when he is told, Tamar thy Daughter in law hath played the Harlot, he answers, [Page 51] Bring her forth and let her be burnt. Caesar's Comment. l. 6. ante Christum natum 1600 annis. Amongst the Bri­tains, if the Wife killed her Husband she was to be burnt; so are the English Laws to this day. We may proceed (says Grotius) by conjecture of the Divine will, with the help of Natural reason, from like to like, and that which is a Law against Felonies and Murthers, may be extended to others as dangerously mischievous: It is a hard dispute, whether there be more mercy in death, or putting out of Eyes, cutting off Legs, Arms, &c. or in the Gallies. It is believed, that the boldness and number of Malefactors begot the Law of death, and those whom Death with so much Infamy (so often reiterated before their eyes) cannot fright, will never think any Torment whatsoever (where life is left them, though with more misery than can be spoken) ter­rible.

[Page 52] It is well observed by the Lo. Coke, Coke 3. In­stit. Epilog. that, Videbis ea saepe committi, quae saepe vindicantur. Those offences are often commit­ted, that are often punished; and he gives his Reason for it, That the frequency of the punishment makes it so familiar, as it is not feared. For Example (saith he) what a lamentable case it is, to see so many Christian men and women strangled on that cursed Tree of the Gallows, Sta. perlege plor. insomuch, as if in a large field a man might see together all the Christians, that but in one year, throughout Eng­land, come to that untimely and ignominious death, if there were any spark of Grace, or Charity in him, it would make his heart to bleed for pity and compassion. I my self have known at one Assizes in the County of Monmouth, where one hath had Judgment to die for stealing a Horse, and Re­prieved, in order to procure his Pardon; another narrowly ac­quitted of a Felony, and made [Page 53] use of by the Goaler, to be the Common-Hangman at the same Assizes; that both these persons (the one breaking the Goal, the other having his liberty, as being acquitted) were both taken in one Felony and Burglary before the next Assizes, committed to the Goal, and received Judgment of death, and were both hanged together. So little doth favour, terrour, or example work a Re­formation upon those that are hardened in their sins, and want grace to make good use of them.

But it is thought horrible and grievous, that a mans life (the life of a Christian) or any of the Members of his body, should be taken away for so small a value as thirteen pence (I take twelve pence to be but petit Larceny, for which he shall be whipt) it is very plain that the Statute of 3 Ed. 1. c. 15.3 Ed. 1. 15. declaring what Prisoners are Mainprizable, or Barable, says amongst other offences (viz.) or [Page 54] for Larceny, which amounteth not above the value of twelve pence: nay, for less. King Aethelstanes Laws begin with Thieves, and speak thus; First, that a man spare no Thief who is in the manner, having in his hands taken above eight pence (it seems eight pence then was in the nature of a Petit Larceny;) a Ram in the Saxons time was worth but four pence: that which was heretofore sold for twelve pence, would now be worth forty shillings.

In the Assize of Bread (long after the Saxons) in the 51th of H. 3. eight Bushels of Wheat are valued but at twelve pence. In Edward the Third's time a Bushel of Wheat was but ten pence; a Haymaker had but a penny a day, Reapers of Corn two pence, an Acre to be mowed for five pence, Threshing a quarter of Wheat or Rie but two pence, a Master-Carpenter three pence a day, and his man two pence, a Free Mason four pence, others three pence, [Page 55] their Boys one penny, Plaisterers and their Knaves (so named in the Act) the same manner, and to find themselves meat and drink.25 Ed. 3. c. 1, 3. See the Statute 25 E. 3. c. 1, and 3. And by the Statute made the 6th of H. 8. of much later time, the wages of a Bayliff of Husbandry was but sixteen shillings eight pence, and for Cloathing him five shillings with meat and drink, a Chief Hinde or Shepherd twenty shillings, and for his Cloathing five shillings, every Common Servant sixteen shillings eight pence, for Cloathing four shillings, no Woman Ser­vant above ten shillings, her Cloathing four shillings, and no Master might have given more.

And although twelve pence keeps not the old Rate, but the Modern, yet things are prized in trials of Life far below their worth, and no man loseth his life (in a single and simple Felony) but where the thing stoln riseth to more than many twelve pences [Page 56] (especially after the Old estimate) but indeed the quality of the Of­fender, circumstances of the of­fence, and of the times, are main­ly considerable in our Law, where any mans life is taken away in such a Felony.

But to return to our proper Subject, and to manifest what the Laws of England were (in Cases of blood) not long after the Con­querer, and how tender a regard the Law of England (answerable to the Law of God) had of the Life of man.Concil. Saxon. 383. By a Canon of our Old English Church, he that killed a Man in publick war (though ju­stifiable) was enjoyned a Penance of forty days. Misadventure at the Common Law adjudged Murther, Stamf. fol. 16. c. 8. By the Common Law killing by misadventure, unawares, or in a mans own de­fence was Murther, founded upon the Judicial Law, before the Ci­ties of Refuge; and the forfeiture and punishment of both was, as in case of Murther, as appears plain­ly by the Statutes of Marlebridge [Page 57] and Gloucester; the Forfeiture of Goods and Chattels remains as yet: The words of the Statute of Marlebridge 52 H. 3.52 H. 3. are as fol­loweth, Murther from henceforth shall not be adjudged before our Justices where it is found Mis­fortune only; which shews, before that Statute though a man were killed by Misfortune, he had the same Judgment in Law as for Murther: So that after the ma­king of that Statute until the 6th of Edw. 1.6 Ed. 1. Writs were granted of course, where there was a sur­mise that the man was killed by Misfortune, or, se defendendo, or in any other manner, where the killing was not Felony, and thereupon a Pardon of course, or Grace, was granted to the party, who only forfeited his Goods and Chattels, and by benefit of that Pardon, had only his liberty out of prison, which without he could not have.

[Page 58] This way of Mercy it seems did stretch too far, and covered too many guilty persons (as I fear yet it does) under her wings, when as their several Cases were not judicially examined, indicted, and tried, before hand, by a Grand Jury, and a Jury of Life and Death before a Learned Judge (as in ordinary Trials of Crimi­nals) whereby it came to pass that many Murthers and Man­slaughters escaped under the fa­vourable surmise of a per infor­tunium, or se defendendo, as if it were done by misfortune, or in his own defence, and so came off from a foul Murther by a Pardon of Course. Now for remedy in this case came the Statute of Gloucester; the words of which Statute are as followeth;6 Ed. 1. c. 9.

The King commandeth, that no Writ shall be granted out of Chancery for the death of a man, to enquire, whether a man did kill another by Misfortune, or in his own defence, or in any other [Page 59] manner, without Felony; but he shall be put in prison until the coming of the Justices in Eyre, or Justices assigned to the Gaol-delivery, and shall put himself upon the Country before them for good and evil (that is, for life or death;) if in case it be found by the Country that he did it in his defence, or by misfortune; Then by the Report of the Justices to the King, the King shall take him to his Grace (if it please him.) The Report to the King is, to Certifie the Record into the Chan­cery, where the King is alwaies present; and therefore it is called a Pardon of Course, Stamf. fol. 15. Stamford fo. 15. whereas the Kings own hand and fiat is to other Pardons. So that here it is very plain, that he that will be acquitted and discharged out of Prison for Manslaughter, per infortunium, or se defendendo (ex Gratia Regis) must first put himself, super Patriam, upon the Country de bono & malo (the very words of the Act) and that is [Page 60] upon a Jury of Life and Death; and this he cannot do except the Grand Jury find the Bill of In­dictment, Murther or Manslaugh­ter, let the matter of fact be what it will; for if the Grand Jury shall but find the truth of the fact, as it appears in evidence to them, or from their own knowledge (which is that which they now so much stand upon, that is the very special matter that makes it Manslaughter, by misfortune or se defendendo) the party can never come to be Ar­raigned upon such an Indictment, for that is not Felony, and if he shall be charged with it (the Grand Jury having only found the special matter in the Indictment or Inquisition) the party must either plead guilty, or not guilty, either confess and justifie the Fact, or deny it; if he confess, he cannot Justifie it, for mens lives are so precious in the eye of the Law, that the death of a man cannot be Justified, except in course [Page 61] of Justice, in a lawful War, or in a just defence of a mans life and property, against such as would rob, or designedly murther him. The Defendant in Appeal cannot Justifie the death of a man at his own suit,Br. Appeal 122. se defendendo, but must plead not guilty. Nay, a Verdict of the Jury of Life and Death,Coron. 302. that A killed B se defendendo, or per Infortunium, 43. lib. Ass. p. 31. is no good Ver­dict; the special matter must be set down in writing by them, that the Court may judge the killing to be upon inevitable necessity; neither Grand Jury that hears but one side, nor Jury of Life and Death (that hear both sides) are Judges in this case.Stamf. lib. 3. c. 9. fol. 165. For, upon the special matter found by the Jury of Life and Death, if the Court shall not adjudge that spe­cial matter good in Law to acquit him of Murther or Manslaughter, it may be either murther or man­slaughter in him, and the party may be hanged notwithstanding such Verdict of the Jury of Life [Page 62] and Death, how can the Court be judge of the matter in Law, when they hear not the matter in fact from the Witnesses on both sides, and the Parties defence for him­self, which they can never do, if the Grand Jury shall take upon them (as they presume they may) to find the Special matter them­selves, whereby the Party cannot be Arraigned, that so he may put himself de bono & malo super pa­triam, as the Statute of Gloucester before-mentioned especially re­quires. If the Party charged with such an Indictment from the Grand Jury (where they will find only the Special matter) shall con­fess it, when he is charged with it (as sure he may) then the Evi­dence can never be heard in Court, whereby the Judge may deter­mine the point in Law, whether the offence upon the whole matter be Murther or Manslaughter, or as they find it, and that is meer matter of Law, whether super to­tam materiam of the Evidence [Page 63] (and that must be Evidence on both sides) it be murther, Man­slaughter in general, Manslaughter upon the Statute per Infortunium, se defendendo, justifiable as against a Thief, or in loco & tempore belli; and how exceeding dangerous and inconvenient were it for Grand Jurors, so far to anticipate the Judgment of the Court, and to take upon themselves (upon the hearing only of Witnesses on one side, and perhaps not all of them neither) the sole Judgment of Law in all these Cases, by not finding the Indictment (which is but the Kings Declaration for the loss of his Subject, in the same manner as it is advised by the Kings Council Ingrossed, sworn in Court, and delivered to them) especially (for that is alwaies intended) where they have probable Evidence (for they need no more) to prove such a person killed by the hands of such a person, such a day, year, and place. Nay, by the Statute of Gloucester, they must either find [Page 64] the Indictment in such a case Mur­ther, for all Indictments (about the killing of a man) were so before that Statute, and no Law since to alter it, or the party can never have a Certiorari out of Chancery for his Pardon of Course, whereby he may be discharged out of Pri­son; for by the strictness of Law, he ought to remain in Prison with­out Bail until his pardon be pro­cured, which Pardon saves not his Goods or personal Estate, but only pardons his Offence, his violation of the King's Peace (which is vio­lated in the loss of a Subject) ac­cording to the Statute of Glouce­ster, and procures his liberty, and discharge out of Prison.

The words contained in the Writ of Certiorari out of Chancery, in order to the obtaining of a Pardon of Grace, and removing the Re­cord into Chancery, that there the King may see by the Record the truth and nature of the offence, ac­cording to the Statute of Glouce­ster, being well observed make it [Page 65] very plain, that the Special matter of Fact must be found by the se­cond Jury, the Jury of Life and Death, and which is so suggested in Chancery before the Issuing forth of such Writ, as by the Writ more fully appears,Certiorary out of Chancery. viz. Quia ut accepimus, quòd A. B. indictatus, & per Inquisitionem patriae com­pert. extitisset, quod idem A inter­fecit praedict. C. se def. & non per feloniam aut malitiam praecogitat. unde dictus A. Gaol. nostr. prae­dict. remiss. est ad gratiam nostram iude expectand. nos ea de causa su­per tenor. Record. & process. Inqui­sitionis praed. Certiorari volentes, vobis mandamus quod si ita est, tunc tenor. Record. pro process. praedict. cum omnibus ea tangent. in Cancell. nostram sub sigillis vestris distincte & aperte mittatis. Observe how this ancient Writ complies with, and explains the Statute of Glouc. in this case; here is in it Indictatus, that is, by the Grand Jury, and per Inquisitionem patriae compert▪ ex­ [...]itisset, that is, the Jury of Life [Page 66] and Death; for that is the only Trial in our Law, by the Country, per Patriam; and whoever is tried by that Jury, posuit se de bono & malo super patriam, which must be for Felony and Murther, the very words of the Statute; for this Jury is to find, in their Writ, that it was se defendendo & non per felon. aut malitiam praecogitat. as it is in the Verdict; and observe by the Writ, he is not to be discharged out of Gaol before his pardon of Course procured, for it is in the Writ, Gaol. nostrae praed. remiss. est (it seems he was there before) ad gratiam nostr. inde expectand. &c. and further, observe the Mandamus in this Writ (si ita est) if it be so, that the Offence hath received such a trial by two Juries, then Certifie the Record, otherwise not; and what Judge that doth not truly understand this (si ita est) which he can never truly do from a Grand Jury, will Certifie such a Record in Chancery, to the King himself, in Cases of Blood.

[Page 67] By this it may appear, to all that are rational and unprejudiced, that have not formerly asserted the contrary Opinion, and there­fore like the Opiniators of this Age, will (for no other reason) maintain it, That Grand Jurors are not lest so free herein, to find what they please, or as they would have it, strictly according to their Evi­dence, as the Gentlemen of these latter times have taken upon them to do, and even to stand up­on it, against the Learned Judges themselves, and their Directions and Advice. Besides, how great­ly do they injure the party accused; for if he be Guilty of no higher an Offence than Manslaughter per In­fortunium, or se Defendendo, and the Grand Jury will not find it Murder, whereby he may put him­self (as the Statute of Gloucester directs, de bono & malo super pa­triam) he can never by a pardon of course, receive a total and final discharge from the said Offence. For if he should be Indicted at any [Page 68] time again of Murder for the death of that Party (as he may be at any time after, during his life, notwithstanding such pardon, where it was not found Murder or Manslaughter at the first) he can make no Plea to such Indict­ment, in discharge of it: he can­not plead auter foits Acquit, or Convict, or Attaint of the same Offence, because he never put him­self de bono & malo super patriam, upon his Country, his life was ne­ver in hazard for it: whereas, if he have been once presented by the Grand Jury for Murder, and there­upon Arraigned, received a full Tryal, and according to the Sta­tute of Gloucester, had been ac­quitted of the Murder, and the special matter of per Infortunium, or se Defendendo found in their Verdict (which by the Law ought to be so found by the Jury of Life and Death) under their Hands, that the Judge (upon hearing the whole matter) may be satisfied it is found according to Evidence [Page 69] given in Court, and thereupon ad­judge what that Offence is in Law▪ If in this case the party that hath received such a full Tryal, and hath sued out a Certiorari out of Chan­cery; and upon the Return of that, hath had the Special matter, the whole Record of proceedings certified by the Judge, before whom the Record remains, and thereupon hath procured his par­don of course out of Chancery; such person can never be called in question again for the same Of­fence, but he may plead that Re­cord and Verdict of Acquittal from the Murder or Manslaughter, not­withstanding it might happen to be proved afterwards either Mur­der or Manslaughter, it shall dis­charge and acquit him for e­ver.

And if the Grand Jury (as in this case) ought to find every per Infortunium Murder (notwith­standing by the Evidence it ap­pear no more to them) à multo fortiori, they ought to find every [Page 70] Offence (that appears to them up­on Evidence to be but Manslaughter) Murder. For theAs in the two Hou­ses of Parliament it is but a Bill whilst in their hands, the Royal assent makes it an Act. So it is but a Bill in the Grand Jury's hand, the other Jury makes it an Act. Bill of In­dictment, as it comes from their hands, is but the Kings Declaration of the matter of Fact, to which the Prisoner may plead, Not Guilty; and joyn Issue with the King, and have it tryed, Whether he be Guilty, or not? modo & forma, as it is laid in the Indictment, or may confess and justifie, as he shall find cause. For this Indictment or Presentment of the Grand Jury in the behalf of the King against the Prisoner, sets forth an Act done, Vi & Armis, a­gainst the Kings Peace, his Crown, and Dignity, all which are violated, dishonoured, & weakned in the loss of a Subject, in the shedding of Innocent Blood, by which his Land is defiled, and his Laws violated; and this according to the Laws of God and Man (prima facie) may be Murder, and therefore ought [Page 71] as well (as all Declarations at Law) to be set forth in the fullest circum­stances of aggravation a Fact of Blood (which far exceeds all other Facts) will bear, especially in lay­ing the ground work and foundati­on of the Charge, because it can­not heighten or increase, but may lessen and decrease, like the Moon in the full, to its lowest wane, e­ven to nothing, upon a full Exa­mination and Debate of the whole matter, by hearing of Parties and Witnesses on both sides, and re­ceiving in the face and audience of the Court such a scrutiny and nar­row search (as blood requires) in­to all circumstances and aggravati­ons of the Offence, that are laid in the Indictment, by the Learned Judge (who is of Counsel as well for the Prisoner as the King, and must not let the Prisoner suffer for want of Counsel in Law) that a Grand Jury cannot possibly do, they hearing but only Witnesses on one side, and not the Prisoner; besides their want of Judgment [Page 72] and Knowledge in the Law in all Cases of Blood: whereas, if the Grand Jury shall take upon them (which they ought not to do) to put out of the Indictment and De­claration of the King, the words Ex malitia praecogitata) the on­ly words that make it Murder, the Court can never Judicially exa­mine the malice, which is com­monly a secret latent thing, car­ried on with a great privacy and cunning, and appears not in all cases of Murder express, (and no Evidence can prove further to a Grand Jury) whereas the Law in many cases implies a malice to make it Murder (although the Parties never saw or heard of each other before) which lies not in proof of Witnesses, but ariseth as a point of Law upon the circum­stances of the Fact, which, not a Grand Jury, but the Court is Judge of, being matter of Law, which Judgment in Law is wholly frustrated and taken from the Court, when the Grand Jurors [Page 73] put out these words, Ex malitia praecogitata, which only make it Murder, out of the Indictment. And by such favour, indul­gence, or wilfulness in Grand Ju­rors, many times the greatest Murder escapes by a per Infor­tunium, se Defendendo, or at least by a Manslaughter. For if the Grand Jurors shall only find it Manslaughter, the Prisoner up­on his Arraignment, presently (if he can but read, get any one to help him, or corrupt the Or­dinary, no great difficulty to do) confesses the Indictment, and prevents all further tryal upon that Offence, and so neither the Judge, nor Court, can ever come to understand (although there be twenty Witnesses against the Pri­soner) what Evidence the Grand Jury had to find it no higher than Manslaughter; nor shall ever come judicially to examine the nature, quality, or malice (if any be) circumstances, and truth of the Fact, although in it self the foul­est [Page 74] Murder that can be (as my own above Forty years experi­ence, attending the Crown Court in one Circuit under many Learn­ed Judges, hath too often experi­enced) together with the com­mon practice of labouring Grand Jurors to such a Presentment, and contriving with the Prisoner to confess the Manslaughter, lest the truth and foulness of the Murder should too clearly manifest it self (as truth ever will) upon a Ju­dicial, faithful, and careful Exa­mination of the Fact by the Learn­ed Judge, upon hearing the Par­ty, and Evidence on both sides.

It is true (as appears by two several Acts of Parliament noted in the Margent) that at the making of those Acts there was a complaint in Parliament,4 H. 4. 2. 37 H. 8. 8. That Indictments were stuffed with more words than the Of­fence required, and that of pur­pose to aggravate the Offence more than it was grievous in it [Page 75] self. For as it is well observed by Mr. Poulton, Poulton de Pace Regis & Regni, fol. 167. That the circum­stances of every Offence do aug­ment or diminish it according to the qualities thereof. And by those two Acts of Parliament it may be observed there was a re­formation and redress made there­in, by leaving out some formal aggravating words (but then ma­terial) used in those times in all Indictments of Felony and Mur­ther, as by the Statute of the 4^th of H. 4. 2.4 H. 4. 2. the words then con­stantly used in all Indictments of Felony (without which the In­dictments were not good) were [Insidiatores viarum & depopu­latores agrorum) provides that those words should be left out in all such Indictments, and yet the Indictments should be good with­out them: And well they might leave them out; for how useless and impertinent (as to the Es­sence of the Indictment) were those words, and yet the effect of them must be still observed. As [Page 76] also by the Statute of the 37 H. 8. c. 8.37 H. 8. c. 8. the words, Vi & Armis, viz. cum baculis, cultellis, ar­cubus & sagittis, or such other like words (before time common­ly used and comprised in all In­dictments and Inquisitions of Trea­son, Murther, Felony, Trespass, and other Criminal Offences) shall not of necessity (for they were so before) be put or com­prised in any Inquisition or In­dictment; but it shall be good only with these words (Vi & Ar­mis, &c.) leaving out the other a­gainst any advantage that may be taken (as formerly it was) by Writ of Error, Plea, or otherwise; for these words were to very little purpose, to be of necessity used in every Indictment: For as to some Indictments, there could be no­thing of pertinency or congruity to the Offence in them. And yet let it here be observed by the way, That in those times, and before those Statutes formerly mentioned, continually (in all [Page 77] Indictments) those words were used, and the Indictments found by the Grand Jurors, without a­ny proof made to them of such circumstances (then essential) as [Insidiatores viarum, depopula­tores agrorum] liers in wait to de­ceive upon the High-ways, and destroyers of Husbandry; or, as in the other Statute, Cum baculis, cultellis, arcubus & sagittis, viz. with Staves, Knives, Bows and Arrows; when perhaps he that committed the Offence had not one of these Weapons about him, or was guilty of the least of these circumstances of Aggra­vation, which were then held necessary to every Indictment; which shews how observable (at that time) Grand Jurors were to the directions of the Court, and to the Kings Council, in draw­ing the Indictments and Circum­stances of it, Whether such Cir­cumstances lay in proof, or no? But in neither of these Statutes, nor any other Statute, is there [Page 78] any Exceptions made to these words, in any Indictment for the killing of a man (Ex malitia praecogitata) then used in all Indictments for the killing of any person unlawfully, which (as is said before) are of great conse­quence and use to be put into all Indictments against any per­son that hath shed innocent blood. For, as Mr. Poulton, in the very Folio before quoted, saith,Poulton de Pace, &c. fol. 167. (writing upon the two former Statutes last mentioned;) If one be Indicted of Murther or Man­slaughter, there must be of neces­sity in the Indictment, a stroke supposed, Poult. ut supra, 1. m. Dier. 59. viz. tali die, & anno felonicè, & ex malitia praecogi­tata interfecit & murdravit. Here it is plain, that the Indict­ment of Manslaughter, as well as Murther, must have these words, Ex malitia, &c. in it. Neither let any think that it is prest further, in foro legis, than it will bear in foro conscientiae; or that by this means Grand Jurors are used but [Page 79] as Cyphers (like the Ordinary at the Assizes) pro forma tantum, and that the Arguments of Law and Reason here used, seem'd to perswade them (like those of the Church of Rome) to be of an implicite Faith, to believe as their Leaders would have them, and to do as they require them, and yet to be under the Obliga­tion of an Oath to present the truth of the matter of Fact. It is far otherwise (being rightly con­sidered) they are not sworn to try the whole truth of the Of­fence, so as nothing may be al­tered in what they find, for then there would be no need of another Jury; they are neither to con­vict the Party, nor determine the Law, Whether it be Murther or Manslaughter? or of what kind or Species it is, as it appears to them upon the hearing of but one side, and that but of Witnesses, not of the Party, that is left (as is said before) to the second Ju­ry, who are properly Tryers of [Page 80] the Offence de vicineto) of the very Neighbourhood; not Inqui­rers only (as Grand Jurors from every part of the County) where Parties, and Witnesses, and Coun­cil, on both sides (if occasion be) may be lawfully heard. Jurato creditur in Judicio. And to say the truth, saith the Lord Coke, we never read in any Act of Parliament, ancient Author, Book-case, or Re­cord, that in Criminal Ca­ses, the party accused should not have Witnesses sworn for him, and therefore there is not so much as Scintilla Juris against it. Cok. 3. Inst. fol. 79. The Grand Jury are only sworn to inquire, and true presentment make of all such things and matters as shall be given them in charge, to present nothing for ma­lice, &c. nor leave any thing unpresented for fa­vour, &c. From hence of­ten Grand Jurors frame an Argu­ment to themselves, that it is part of their Oath to present all such things as shall be given them in charge, that generally the Judges in their charges di­late upon the several Species and differences in Murther: As, what Offence the Law makes Murther? what Manslaughter at Common Law? what upon the Statute? [Page 81] what per Infortunium? what se Defendendo? what is malice ex­pressed? and what is malice im­plied; and therefore wherever they find these specifical differ­ences by their Evidence, they are so to present it, and not other­wise.

This is upon a great mistake, nor is it, or can it be so intended by the Judges; for although it is true that the Judges (for the most part, not all of them) in their charges to the Grand Jury (which I humbly conceive were better omitted) do, usually menti­on and branch out the several specifical differences and distincti­ons the Books of Law make in shedding of Blood, in Murther, and Manslaughter, I conceive, more to inform the whole Coun­try, and to shew their Learning, and the Law therein, than inten­tionally that the Grand Jury should presently (some of them perhaps never serving before, uno intuitu) take it into the conside­ration [Page 82] of their Oath, and make it the nice Duty of their Inquiry, which indeed they can never at­tain unto, or determine the Law therein, by only hearing of an Accusation of one side, from which they are only to prepare fit matter for the Court to pro­ceed further upon, and to make a more diligent inquiry after. Such distinctions and directions from the Judge being much more proper for a Jury of Life and Death, when any Question of Blood comes before them to be considered of, and to be tryed and determined, who have the only means to do it, by hearing all Parties, all Evidence on both sides; as also the directions of the Court, as to the quality and nature of the Offence, to give them a true light to make a right distinction therein.

It is well said by a Learned Writer of the Law;Finch 25. Case of presentment and Indictment. An Indict­ment is an Inquiry finding some Offence against the King. It was [Page 83] the Kings Action whereupon the Party shall be Arraigned, or put to Answer by the King, and try­ed by another Jury. Every strong suspicion of such an Offence, though it be in case of Felony appearing of Record, hath the force of an Indictment, as in an Action of Trespass for Goods carried away; if the Defendant plead, Not Guil­ty, and be found Guilty, he is a Felon, &c. In ancient time it was usual to Arraign one taken in the manner with­out any Appeal or Indict­ment. So in an Appeal of Mur­ther, if the Plaintiff, af­ter Declaration be Non­suit, the King shall pro­ceed upon that Appeal, as upon an Indictment found: So He. And as it is inDoctor & Student, lib. 2. cap. Abridgment. Doctor and Student; The Grand Ju­ry is only charged with the effect of the Bill (viz.) whe­ther he be guilty of the Felony or Murther in the Indictment, within the Shire, and not whether he be guilty, modo & forma, as in the Bill is specified. And so when they say Billa vera, they say tru­ly [Page 84] (as they take the effect of the Bill to be) so it is though the Bill vary from the day, year, and place, so it vary not from the Shire; as if there were false Latin in the Bill they might well say, Billa vera, for their Verdict stretcheth but to the Felony, not to the truth of the Latin.

There is very much difference in Law betwixt an Inquiry and a Trial, betwixt a Presentment and a Conviction; besides, the Judges do now give it in charge to the Grand Jurors, and so part of their duty (if not of their Oath) that when they have such an Indict­ment of Murther come to their hands, if they find upon their E­vidence, that the party said to be slain in the Indictment, by the person there charged with it, with the time, and place, and manner how, they are to enquire no far­ther into the nature of it (what offence this is in Law) but to find it as it stands in the Indictment, which (for ought they know, up­on [Page 85] a further and more clear dis­cussion of it in Court) may appear as full, as it is laid in the Indict­ment; however it passeth fairly out of their hands, they may more clearly than Pilate wash their hands in Innocency from the Innocent blood of such a person, and very well discharge their Oath, the Law, and a good Con­science, letting it pass from them with the Indorsment of Billa ve­ra, a Bill that hath truth in it, fit to be considered further by the Court and another Jury.

And as Indictments at the Kings Suit do succeed Appeals, at the parties Suit, so ought they to be drawn and presented as large and as full for the King, as an Appeal of death for the party, which e­ver was for Murther (if the party Appellant would so have it) and that may very reasonably be ap­plied to Indictments that the Statute of Gloucester directs in Appeals, viz. That no Appeal shall be abated so soon, as they [Page 86] have been heretofore: But if the Appellant in an Appeal do declare the Deed,6 E. 1. 9. the year, the day, the hour, the time of the King, and the Town where the Deed was done, and with what weapon he was slain, the Appeal shall stand in effect.

Now so great an exactness of the year, day, and hour, is not required in an Indictment, as in an Appeal (being the only violent prosecution of the party) in fa­vour of life, many Niceties were stood upon more than in other Actions. And Mr. Justice Stam­ford says, A man is not of necessi­ty compellable at Common Law at this day, to put into his Decla­ration the hour; the day was ne­cessary to be put down in an Ap­peal; for if the Appellee can prove by certain Demonstrations and Testimony of credible Wit­nesses, that he was the same day at another place, at such a distance as it was not possible for him to be there the day of the commit­ting [Page 87] of the fact, or twenty miles off the same hour the murther was committed, the Appeal shall abate. Yea, so many were the Niceties of Appeals, which for­merly were in use, not only in Murther, but in all cases of Felony, and so full of Bribery and corrup­tion in the easie composition of all sorts of Murthers and Felonies, and did so much delay the Kings prosecution by Indictment (which was not to begin until the year and day past, after such Felony and murther) in which time com­monly the Appellant grew slow in his prosecution, and was many times agreed with, and by the end of the year Witnesses were dead and gone, all was cold and forgotten, as also that the Appel­lant must sue in proper person, which suit was long and costly, and made the party Appellant weary to sue.

For remedy whereof the Sta­tute of the third of H. 7.3 H. 7. c. 1. was made, That the King shall not [Page 88] stay until the year and day were past, but proceed at any time after the Murther committed; MURTHER. as also, that the Appellant shall proceed in his Appeal by Attorney; (all helps the Law could devise to prevent delays in cases of Mur­ther, and to find out and punish the blood-guilty person) observe the penning of that Statute (were there nothing else to be said in this Argument) how necessary it is that all Indictments be made Murther, that are brought at the Kings suit within the year and day (as the King by this Statute is enabled to do,3 H. 7. c. 1. the words where­of are as followeth, And if it happen, that any person named as principal, or accessary, be ac­quitted of any such Murther at the Kings suit within the year and the day, that then the said Justices shall not suffer him to go at large, but either remit to Gaol, or Bail him, at discretion, until the year and day be past. And further in the said Statute it is said, [Page 89] If the MURTHERER escape the Town shall be amerced; as also, that the Coroners shall return their Inquisitions before the Justi­ces of Gaol-delivery, and they shall proceed against such Mur­therers; and as it is before in the said Statute, The King shall not stay until the year and day were past, but proceed at any time after the Murther committed: So that (prima facie) the Statute looks upon all Manslayers (unlawfully) to be guilty of Murther. And so the Indictment ought to be drawn, or they cannot be continued in Gaol, nor Bailed by this Statute until the year and day be out, nor the Town amerced for such escape, nor the offender proceeded against by the King, within the year and day by Indictment.

Now generally (in these days) since the making of that Statute, all proceedings in Murther and Felony are by Indictment at the Kings suit, not but that the prosecu­tion by Appeal is still in force, and [Page 90] the party hath his election which way he will proceed, either by Appeal at his own suit, or by In­dictment at the Kings suit; yea, even after the Trial had by the Kings suit (in some cases) although at the Kings suit they have been acquitted of the murther (but that the abuse of these and many other obsolete Laws) hath taken away the frequent use of them; except it be through the miscar­riage of Grand Jurors, and Jurors of life and death, in cases of mur­ther, the one in not fully present­ing the murther, the other in not conscientiously giving a Verdict according to their Evidence, and thereby provoking the party (whose Relation is slain) to the nice and chargeable remedy of an Appeal; upon such Appeals se­veral have been executed after they have been acquitted by trial at the Kings suit upon Indict­ment, one Woman in my time in Berkshire, for petty Treason for killing her Husband, after she [Page 91] had been acquitted for the same fact at the Kings suit by Indict­ment, was convicted upon the Appeal, and burnt at a stake.

Look how high the Appellant shall draw his Appeal against the Appellee or Defendant, as if for Murther; in this case, if the Ap­pellant shall surcease to prosecute such Appeal, as by Nonsuit, Re­lease, Retraxit, the Woman by marrying a Husband, pendente lite, or by the Act of God, as if the Appellant die, or by the Act of the Law, as if the Appellant take the priviledge: Now in all the former Cases, where the Appeal ceaseth by the Act of the Appel­lant (that is, he that prosecuteth the Appeal, after declaration in the Appeal) the Defendant shall not go at liberty, but shall be Arraign­ed upon the same Declaration at the Kings suit, for that it doth ap­pear by the Declaration there is a Murther committed, and the year, day, and place, when, and where the same was committed, and the [Page 92] same is not tried; and the Law will not allow such great Offences whereof it taketh notice) to be concealed and remain unpunished, neither will the King at his suit suffer it to be extenuated into a lesser degree of Murther, than the Appellant did: so careful have the Laws ever been in punishing of Murther, and revenging Innocent blood, which it seems (and as be­fore is observed) whilst Appeals were in use, and the Kings suit must stay until the year and day were past, many Murtherers e­scaped unpunished, and the killing of men was made (as now it is) a trick of Youth, Valour, Hecto­ring, and Jest, in regard of so great impunity it found, by fre­quent Pardons, Indulgence of Grand Jurors, and others.

And truly, it is much with us in this Age, as it was in those daies when Appeals were in use, and had the preheminence of the Kings suit; Never more killing of men by Duels, Tavern, and [Page 93] Game-house Quarrels, and yet never more impunity to such Man­killers, such valiant murtherers of their fellow Christians, especially if the Mankiller have either a fame for Honour or Valour, Mony, or Interest of Friends, to pro­cure pity, or pardon and com­passion from the Grand Jury, to find it Manslaughter (if they will go so high) where it is Murther, and then (through that false glass) to represent it to a most Merciful King, and thereby obtain a Par­don for the whole offence; or else, upon his Arraignment shall con­fess the Manslaughter, and pro­cure a respect of his burning in the hand (because a Gent-hand killed the man) and afterwards procure a Pardon for that burning in the Hand, which the King may grant, it being no part of the Judgment, but a notifying the Person, that by that Mark he may be known again, once to have had his Clergy, that he may not have it a second time.

[Page 94] Many Recent, and fresh Instan­ces (in particular Cases of blood) might be given (were it safe or seasonable to make reflections) of divers Murthers, that have too easily slipt through the hands of Justice, by the aversness, igno­rance, or partiality of Grand Ju­rors in not observing the direction of the Judges in this particular of finding Bills Murther, instead of Manslaughter, yea, and that many times upon directions given in Court, after open Evidence, which open Evidence to a Grand Jury (especially in Cases of blood) ought to be avoided as much as may be, in regard it doth too much lay open and betray the Kings Evidence, to standers by, it may be Friends of the Priso­ner, that may make too much use of it for the benefit of the Prisoner, and prejudice of truth; besides, many Witnesses, although upon their Oath) will not speak so fully in Court before the Bill found, and happily in the presence [Page 95] of the Party, or his Friends, as in a Grand Juries Chamber; more private besides, where it is before­hand known, what witness-pinch­ing endeavours will be used to keep him off, or by some sinister way to be complied with to lessen or hinder his Testimony to the second Jury (if there be occasion) besides, the Kings Evidence (be­fore Issue joyned betwixt the King and the Prisoner) is alwaies to be secret, only open to the Grand Jurors, who are alwaies styled, Juratores pro domino Rege, the Kings Jury, and are sworn to keep the Kings Counsel, their Felons, and their own: now the Wit­nesses for the King are said to be of the Kings Council, which would abate much of their Oath, if E­vidence, and the Kings Informa­tions (in Cases of Bloud) should be open and common.

And as you have heard, what great Inconveniences were in the use and abuse of Appeals in the Reign of King Henry the Seventh, [Page 96] so indeed as many (if not more Instances of mischief and incon­venience might be given of Grand Jurors in this Age (the best things corrupted proving the worst) you may conceive what great com­plaints have formerly been made against Grand Jurors in Parlia­ment in erring upon both hands, by taking too much liberty to themselves, and not observing the directions of the Court, that there was a necessity of making an Act of Parliament,3 H. 8. in the 3 H. 8. (immediately after Appeals began to fall off) as you may read in that Act of Parliament made to reform them, and to reform the Sheriffs power in retorning them; the whole Authority of retorning Inquests (to take Indictments) being by force of the Statute of the 11 H. 4. in Sheriffs and Bay­liffs of Franchises. It is observed by the Statute of the 3 of H. 8. that by reason of Bribing of She­riffs, and their Bayliffs and Offi­cers, many true and substantial [Page 97] persons were divers times wrong­fully indicted of Murther, Felo­nies, and other Misdemeanours, to the utter loss of their Lives, Goods, and Lands. And sometimes also great Felonies and Murthers were concealed, and not pre­sented by the Grand Jurors, par­tially retorned by the Sheriffs or their Ministers; for the preven­tion whereof, it was established by the said Act of the 3 H. 8. That all Pannels of Grand Ju­rors, put in by any Sheriff before any Justice of Goal-delivery, and Justices of Peace, one being of the Quorum, in the open Sessions to enquire for the King, shall be reformed, by putting to, and taking off the Names of the persons which so be impannelled by every Sheriff, at the discretion of the said Justices, before whom such Pannel shall be retorned, and the Sheriff upon pain of twenty pound shall allow of such Pannel, so re­formed and retorned by the Justi­ces, the one half to the King, the [Page 98] other to him that will sue for the same, and the Kings Pardon shall not be a bar to his part that so sues. So careful were the Law­makers to have faithful Jurors, that should neither accuse the In­nocent, nor excuse the Nocent, and that especially (in Cases of Blood) should make no conceal­ment.

And lest all this care and re­formation of Grand Jurors should do no good, but that they should still espouse their own opinions, and make head against the Court, and wilfully conceal Offences they were charged to enquire of,3 H. 7. there is a Statute yet in force, 3 H. 7. in which it is ordained, That the Justices of Peace may (in their discretions) cause an Inquest to be Impannelled, to enquire of the concealments of other Inquests taken before them, of such mat­ters and offences as are to be en­quired and presented before Ju­stices of Peace, whereof com­plaint shall be made. And if any [Page 99] concealment shall be found by any Inquest, within one year after the said concealment, every per­son of the said Inquest, that made such concealment, shall be amerced or fined at the discretion of such Justices of Peace, the said A­merciaments so assessed in plain Sessions. And these Amerciaments or Fines may be very high, ac­cording to the nature of the Con­cealment and quality of the per­son. This Statute only concerns and remedies Concealments by Grand Jurors, before Justices of the Peace, at the Sessions of the Peace, as conceiving Grand Jurors would be bolder there, and take more liberty in their Present­ments than they durst before Ju­stices of Assize, Oyer, and Ter­miner, or Goal-delivery; as also, that such Justices and Judges knew better how to deal with them, if they made any such concealments or misprision before them: For the Grand Jurors being immedi­ate and subordinate Ministers and [Page 100] Officers in, and to the Court, and answerable for their Duty there, as Coroners, Constables, and o­ther Ministers of the Court, they may and must stand to the Judg­ment of the Court; and in case of any wilful contempt, misde­meanor, and concealment, may, without Indictment, (for how can they be indicted at the same time by themselves) be fined by the Court, as any other Officer and Minister of the Court.

And let Grand Jurors take heed, lest by their remisness and pee­vishness, they give not occasion to the making of the like Statute as was made in the 11.11 H. 7. c. 3. of H. 7. c. 3. upon the surmise in the Sta­tute, That whereas many great Offences, as Riots, unlawful As­semblies, Extortions, Mainten­ances, Imbraceries, and other Offences, could not be duly punish­ed by the due Order of the Law, except it were first found and pre­sented by the Verdict of Twelve men thereto duly sworn, which [Page 101] will not find, nor yet present the Truth (observe here what occasi­ons Grand Jurors had then given through their neglect) It was therefore provided and enacted by this Statute, That Justices of As­size, and Justices of Peace, upon Information for the King (that is meerly upon the Testimony of Witnesses, without Indictment, or use of Grand Jurors) should proceed to make out Process, Pu­nish and Condemn Offenders by their Discretion, as if it were upon Indictments found by Grand Jurors. Which Statute was a great Infringment of the Common Law, and the Liberty of the Sub­ject of England, who ought not by Magna Charta, and the Law of this Land, to be proceeded a­gainst, or condemned in their Per­sons or Estates (in Criminals) but by Indictment first had and found against them by Grand Jurors. It is true, that Treasons, Murthers, and Felonies, and such Offences (for which life and member should [Page 102] be lost) are excepted out of this Act (although they stand upon the same Reasons as the other Offen­ces named in the Act). For by this Act and new Law, the Sub­ject might lose his Liberty, suffer Ransom, Stigmatizing, Pillory, Imprisonment, loss of Lands and Estate (things very near to Life and Member). And the Lord Coke tells us, That Empson and Dudley (two Judges (by reason of this Act) committed upon the Subjects insufferable Oppressions: and therefore this Statute was just­ly Repealed after the Decease of H. 7. by the Statute of the 1. of H. 8. c. 6. A good Caveat to Par­liaments (says the Lord Coke) to leave all Causes to be measured by the Golden and streight Mete­wand of the Law, and not to the uncertain and crooked Cord of Discretion. And as good a Ca­veat it is to Grand Jurors in ca­ses of Blood, not so much to be led by the crooked Cord of Dis­cretion, as the streight Rule of [Page 103] the Law, and Directions of the learned Judges, who should best know the Law, and the truest measure thereof: For if the Rule be true (as indeed it is) Quod nihil relictum est arbitrio Judicis) that nothing is left to the Will of the Judge, much less, arbitrio Juratorum, to the will of Grand Jurors, they having been (through too much connivance) by an evil practice, corrupted herein. But errores ad sua principia referre, est refellere, To bring Errors to their beginning, is to see their last.

Now, haply Grand Jurors may conceive, and argue thus; That to extenuate an Offence, is not to conceal it, if they find it not Mur­ther, yet they find it in some de­gree of Manslaughter, &c. Be­sides, if the Kings Council will put into the Indictment the words (Ex malitia praecogitata, &c.) which only make it Murther, and which is matter of Fact, they must make it out to us, that there [Page 104] was malice, either from our own knowledge of it, or that it is clearly proved to us from words or deeds express, by such an act, that lies in proof, or we are not bound to find those words, but must strike them out of the Indict­ment, or find an Ignoramus: Or if the Witnesses themselves shall inform us, that it was a sudden falling out, or done by misfortune, Se defendendo, in his own de­fence, or to defend himself against one that would have robbed him, in his House, or upon the High­way; or that he that did it was a Watchman, a Constable, or law­ful Officer, or Keeper of a Park or Warren, and in doing his Du­ty; or that he that did it was a natural Fool, one not Compos men­tis, a Mad-man, or a young Child that did it, and by his young and tender years not capable of malice, and so could not be guilty of Mur­ther; or if there had been former fallings out and differences be­twixt them, yet all was recon­ciled, [Page 105] and they good friends a­gain, and this only a casual and sudden difference betwixt them upon a new occasion, and exceed­ingly provoked unto it by him that was slain, so that we cannot be satisfied to find it Murther in any of these cases, being upon our Oaths to make true Inquiry, and if we find not the malice (being matter of Fact) another Jury can­not try it. Besides, we have for­mer practice of our side, other Grand Jurors have had, and ta­ken the same Liberty, and why should not we? The Judges like­wise in their Charges inform us of all the specifical differences in Manslaughter, which we conceive they intend we should take notice of, as it comes in proof before us, in our Inquiry. This, I con­ceive, is as much as Grand Jurors have said, or can alledge for them­selves (where they are not po­sitively partial, and go clearly a­gainst their Evidence) why they do not, or will not (for such is [Page 106] some of their Language) find it Murther in all Cases, as the Court directs, and as the Bill of Indict­ment is drawn and sent to them as the King's Declaration.

To satisfie these reasonings and mistakes (though sufficient hath been said already to satisfie a wise and sober Grand Jury-man, espe­cially in a Case of Blood, which can never receive too strict an In­quisition by a Grand Jury, the first Inquisitors of it in Court) let them observe, that neither themselves, nor the party accused, can be pre­judiced by what they shall so find, be it never so high: First, not themselves; they do but present a probable Accusation (no Convi­ction) against such a person that hath had his hands in Blood, hath kill'd a man, is Vir sanguinis: And here certainly it will be the best satisfaction to Conscience (and that is the best Friend we can sa­tisfie) to have all the Circumstan­ces of the Fact (as they are laid in the Indictment) to be more ju­dicially [Page 107] and circumspectly examin­ed, sifted, and tryed out, by a­nother Jury, by a Learned Judge, in a publick Court, to the parties face, where the King's Witnesses, and the party himself, and his Witnesses, may be fully heard, and the whole matter fully tryed and debated, which cannot be done in a Grand Juries Chamber, but is al­together stifled and obstructed, if the Grand Jurors suffer it not to come to this Judicial Test and Try­al, but shall put out the words, Ex malitia praecogitata, or otherwise alter the King's Declaration and In­dictment, which already hath had proceedings in it, and that in Court of Record, where it hath been advised by the Kings Coun­cil upon perusal of Informations and Examinations from Justices of Peace or Coroner, in that Case certified to the Court, and upon hearing the Prosecutor and his Witnesses, and so drawn and pre­sented to the Court, Witnesses sworn to it, and Indorsed, Jurat. [Page 108] in Curia, sworn in Court, and so become something more than an ordinary Declaration or Wri­ting in Parchment, to be altered by any, without advice or directi­on of the Court; for if it might be so, the King's Council and their Advice (together with the Judg­es in such Cases) would signifie very little in drawing or advising any Indictment of Murther, if Grand Jurors in their Chamber may (from their own advice) al­ter it as they please, the Judges themselves being as well con­cern'd, in Conscience, to do right to the Prisoner and Party accused, as Grand Jurors can be. And al­so admit that the Witnesses shall inform the Grand Jury that it was a passionate and sudden falling out, or that it was done unawares, or in his own defence, it is but what they apprehend it to be; they can inform but what they saw, or heard, or believe; they are in the Affirmative only, and can prove but for that instant the Fact was [Page 109] done; they dare not swear that there had been no falling out be­fore: and as they cannot, or hap­ly will not, prove an express ma­lice, so neither can they swear that there was none at all, or not such a malice as the Law implies; nei­ther can the Witnesses judge in all Cases, what is Manslaughter at Common Law, what upon the Statute, what per Infortunium, what se Defendendo, what is Ju­stifiable, or what is Murther: neither indeed in all these Cases, can the Grand Jurors, nor is it convenient for them to judge of all the specifical differences, each Circumstance may so much alter a Case; and will they then, by their uncertain Judgments, in case of Murther, conclude and preclose the Court, and determine the Law, that this Fact of Blood shall go no higher than they please to adjudge it; as in the case put of a Child that kills another, not the Grand Jury (who see not the Child) but the Court, and [Page 110] the other Jury shall inspect the Child, shall judge whether the Child could do such an Act, fel­leo animo, ex malitia praecogita­ta, and so be guilty of Malice and Murther; the Court, and not the Grand Jury, being to judge, an malitia supplebit aetatem, whe­ther upon hearing him speak, he may be thought capable of malice (as some at more tender years are than others) so in the case of a Fool, or a Lunatick, a Dumb or Deaf person; so in the case of a Reconcilement after a falling out, and then a killing; can either Ju­rors or Witnesses, or any that hears but one side, state the case aright, or judge whether the Re­conciliation were perfect or not, so as to take away all the seeds of malice, revenge, or discontent? And Mr. Justice Stamford sayes, That those that are Dumb and Mute, and Infants, shall be dis­charged upon Arraignment. Which shews that they are to be Indict­ed of Murther: But how shall they [Page 111] be Arraigned, when they cannot hear, or speak, and plead? I con­ceive by the Inspection and Judg­ment of the Court upon their Ar­raignment, I mean, upon the In­dictment found by the Grand Jury; which plainly shews that the Judges (not the Grand Jurors) are Judges of the Law, and of what shall be Murther. So in the case of killing a Thief that attempts to Rob or commit Mur­ther, (which is justifiable) this must judiciously and certainly ap­pear so upon the Tryal, that the Court may judge whether there were an intention to Steal, or to commit Murther, or Rape; and not let such a Surmise only, That there was no such intention, lead the Grand Jury to acquit him, when haply there was such inten­tion. And the Statute of the 24. of H. 8. saith, That the Party so Indicted or Appeal'd of such Of­fence for killing a Thief, or one that intended to Murther (by Verdict so found and tryed) shall [Page 112] not lose or forfeit Lands or Goods, but shall be discharged as one acquit of Felony; and none can be acquit of Felony that is not tried for it; the doubt being before this Statute, Whether he should for­feit his Goods and Chattels as one that kill'd another by Chance­medley? So that there was no doubt but such a one was Indict­ed of Murther before this Act, as one that had kill'd another by Chance-medly must, and yet is to be Indicted; Chance-medly being Manslaughter at Common Law.

Sure in all these cases, and all other the like cases of Blood, it is most prudent and safe for every wise and conscientious Grand Ju­ry-man (that is satisfied there is Blood spilt, and the life of a rea­sonable Creature unjustly taken away by such a person charged in the Indictment) rather to presume it probable, all other Circumstan­ces may be true, as they are laid in the Indictment (so far as to [Page 113] make an Accusation against a guil­ty person) then that they are not, and so to leave it fairly to the Court to judge thereof, and them­selves free from the imputation of Blood by concealment; and there­by put the whole matter, with all its circumstances, upon a most legal and impartial Tryal, many times that appearing upon Try­al that appeared not before.

And the reason why a Petit Ju­ry, or Jury of Life and Death, may extenuate an Offence, and make it less than the Grand Jury, is because (hearing of both sides) they may inquire of Circumstan­ces which a Grand Jury cannot. Be­sides as theCoke 3. Inst. fol. 26. 1. Inst. Sect. 194. Fortescue c. 26. 72. Stamford l. 2. fol. 90. Lord Coke informs (that Oracle of the Law) An Indict­ment is no part of the Tryal, but an Informa­tion or Declaration for the King; and the Evidence of Witnesses to a Grand Jury, is no part of the Tryal: For by Law the Tryal in that case is not by Witnesses, but [Page 114] by the Verdict of Twelve men, and so a manifest diversity between the Evidence to a Jury, and a Try­al by a Jury. If the Indictment were part of the Tryal, then ought he that is a Noble-man and Lord of Parliament, to be Indi­cted by his Peers, for the Tryal of him ought to be by his Peers; but the Indictment against a Peer of the Realm is always found by Freeholders, and not by Peers.

The French word Enditer sig­nifies in Law, an Accusation found by an Inquest of Twelve, or more, upon their Oath; and the Accusation is called Indictamen­tum. And as the Appeal is ever the Suit of the party, so the In­dictment is always the Suit of the King, and as it were his Declara­tion, as the Appeal is the Decla­ration of the party. Some derive it from the Greek word [...], to accuse, and as properly may it be called Indictamentum ab indi­dicando, quia aliquid notum facit [Page 115] dicendo, he that Accuseth or Ap­pealeth another man, or brings his Crime into question, indicta­tus, quasi indicatus, one that hath his cause shewed out in pub­lick; (deferre nomen alicujus, ju­dicare) to Indict, is to Accuse or Impeach. It signifies in our Common Law as much as accusa­tio in the Civil Law, though it have not the like effect: Accu­sabilis, i. e. accusatione, aut re­prehensione dignus, one worthy of Reprehension. An Indictment being like the precious Stone of India, called Indica, which (as Pliny notes) in rubbing it break­eth forth into a purple sweat; So doth an Indictment of Murther, which though it seem white and pale in the Grand Jurors hands, afterwards by rubbing and pres­sing hard in Court, breaks out into a purple or bloody sweat (as my self have very often seen ex­perienced, when Grand Jurors have many times made great scru­ple even to find the Indictment at [Page 112] [...] [Page 113] [...] [Page 114] [...] [Page 115] [...] [Page 116] all) what comes from the Grand Jury is more properly called a Pre­sentment. For the constant form and words in all Bills are, Jura­tores pro Domino Rege super sacra­mentum suum praesentant; observe, they are stiled Juratores pro Do­mino Rege only; nor can they be otherwise: for they are to hear none but the Kings Evidence, up­on his own Declaration: And whoever is to advance (as the Grand Jurors are) but the Inter­est of one side, ought as ration­ally to be permitted, to raise and advance it to the highest pitch (that by any reasonable presump­tion it will bear) as the other side have liberty to extenuate it to the lowest degree and mean that art and cunning (which in these cases of Blood are seldom wanting) can bring it unto; the one being upon an Accusation against a criminous person, who hath had his hands in Blood, and is certainly guilty in truth of something in the crime he is accused of: The other only [Page 117] upon his own excuse, who can never (upon the whole matter) excuse himself, à toto, from the whole Crime of Blood. If they are satisfied that it is an Offence a­gainst the King's Peace, his Crown and Dignity, and the life of another person; it is enough for them to present the whole matter to the Court, as the Court hath direct­ed and advised the Bill to them: For every Bill of Indictment, that is formally and legally drawn up, is presumed to have been seen, ad­vised, and directed (as before is said) by the Court and the King's Counsel, upon an Information of the Fact taken by them The Judges did ad­vise in drawing the Indict­ment against Leak, 4 Jac. Coke 3. Inst. Tit. Treason, fol. 16., (as for the substance of it, is meet and fit to be put into such formal and legal terms for the King) as it is by the Judges sent out of Court to the Grand Jurors; it being a common practice for the Judges (according to the matter of Fact) to direct upon what Sta­tute and Law, and in what man­ner [Page 118] and form the Indictment shall be drawn and sent to the Grand Jury, that if they find only pro­bable matter contained in it of accusation in any kind, they may so present it to the Court, as their Presentment or Accusation; the word Presentment coming from the Latin word Praesentio, to smell or scent before, praesentire in posterum, to have a sense of that which is to come: so if they have any sense or smell of Blood in the Indictment, it is enough for them to leave it to a further quest of what shall come after: the Grand Jurors being like the good Huntsman, that observing where the Hare hath lately prickt, or the Deer lately struck, or hath dropped blood, lays in his Hounds, and leaves them to make the dis­covery: so indeed should the Grand Jurors do the Jury of Life and Death, in Cases of Blood, and that the Blood of their fellow Christians. And thence likewise the Grand Jurors Presentment is [Page 119] called an Inquisition, and them­selves Inquisitors, from the Latin word Inquiro, inquirere, quod vulgo dicitur facere Informatio­nem, for every Inquisitor is as an Informer, a promoter of the Ac­cusation to the Court, in the be­half of the King, that it may be more judicially enquired into and determined, which is much like a Citation of a person into the Ecclesiastical Courts for a pub­lick fame, which is either fit to be enquired further into and pu­nished, or the party purged or pronounced Innocent: or like the Masters of Requests to the King (Honourable persons) that view all Petitions and Complaints be­fore they be presented to the King, and determine what are fit to be presented unto the King, and what are fit to be rejected.

A strong Suspicion, and the Fame of the Country may (in many cases) be Evidence sufficient for a Grand Jury to find a Bill; and here I will leave to the ob­servation [Page 120] of Grand Jurors, what I find in Mr. Justice Stamfords Pleas of the Crown, and which he himself observeth out of Brac­ton, a very ancient and learned Lawyer, as Bracton's order in Cases of Suspicion upon Indictments of FelonsBracton's Order in le Suspicion ou Endictments del Felons, lib. 3. cap. 22. paragr. 1. fol. 143. Stamf. fol. 97. de secta Regum. The words are these, Nunc autem dicendum est de Indictamentis per famam Patriae, quum praesumptionem in­ducunt, & cui standum est donec in­dictatus se à tali Suspicione pur­gaverit; ex fama quidem oritur suspicio, & ex fama & Suspicione oritur gravis praesumptio. Tamen probationem admittit in contra­rium sive purgationem, Suspicio quidem multiplex esse potest, primo, si fama oritur apud bonos & gra­ves. Item ex facto praecedenti ori­atur suspicio cui etiam standum est donec probetur in contrarium, &c. and so goes on, to let us know the several badges and marks of Sus­picion, advising, that those that [Page 121] will take Publick fame for an Evi­dence, take it from those that are of good Fame, and not of evil persons; as he goes on, Non de malevolis & maledicis, sed pro­vidis & fide dignis personis, non semel sed saepius, quia clamor in­nuit, & defamatio manifestat; Tu­multus enim & clamor populi, quandoque fiunt de multis quae su­per veritatem non fundantur. Ideo vanae voces populi non sunt audiendae, ut ne dicatur Jesus crucifigitur, Barabas autem libera­tur. The whole Chapter is well worth the reading.

And it may not be amiss to ob­serve, that the ancient forms of Indictments or Bills began thus, Inquiratur pro domino Rege, Let it be enquired of for our Sove­raign Lord the King, as the of­fence is laid in the Indictment, whether the offence be so (as is there supposed) which is as much as if the Grand Jury should say, We judge it fit that it be farther enquired of, whether it be truly [Page 122] so indeed, as it is here supposed; for the Offence, as it is laid in the Indictment, as it comes from the Grand Jury (before it receive a farther trial and enquiry of ano­ther Jury) is no more but Crimen suppositum & impositum, an offence supposed and laid to ones charge to answer; and this clearly ap­pears by the Record of every Ac­quittal or Conviction of any that is tried upon an Indictment; for the words of the Acquittal or Con­viction (as they are drawn up in the Record) are these, viz. Ju­ratores (that is to say, the Jury of Life and Death) dicunt super Sacramentum suum, quod praedi­ctus A.B. non est (vel est) Culpa­bilis de Felonia & Murdro prae­dict. in Indictamento praed. spe­cificat. ei superius imponit. modo & forma prout per Indictamentum praed. superius versus cum suppo­nitur: so that supponitur & im­ponitur, supposed and imposed, is all that can be inferr'd from the Indictment; the Grand Juries [Page 123] Presentment (upon hearing of one side) being the Supposition, and the other Jury (upon hearing of both sides) the Imposition; or Supponitur, and that relates to the substance of the Indictment, as the Grand Jury suppose it to be; the Imponitur, and that relates to the modo & forma of the Offence, and the circumstances of it, as it is laid in the Indictment, as it is found by the Jury of Life and Death; and these Circumstances indeed are the proper enquiry of the Jury of Life and Death, upon the hearing of Evidence on both sides, as appears clearly by the penning and drawing up of these Records, and all this is no more than in every common Declara­tion at the suit of the Party, only this Indictment is as a Declara­tion upon Oath, and must there­fore (for the satisfaction of those that are sworn) contain, that which for substance seems to them (prima facie) to be a probable truth, and a transgression of a [Page 124] Law, not strictly looking into the matter and form, aggravations and circumstances of the Fact (as it is laid in the Indictment) for those do but attend and usher in the Fact; but Grand Jurors are principally to eye and look upon the single Fact and act it self, and finding one that hath had his hands in blood, and that probably (upon a farther Enquiry) may be­come, reus, a guilty person, by killing of another person, they are to put their Billa vera unto it, although they have no proof at all of the Aggravations and Circumstances that attend the Fact (Evidence many times ari­sing out of the parties own mouth (against himself, upon a strict examination in Court) more than the Witnesses against him have proved.) And it is well observed in the Book called, The Terms of the Law, upon these two words, Billa vera, where it is said, that Billa vera is the Indorsment of the Grand Jury upon any Presentment [Page 125] or Indictment, which they find to be probably true, (mark these words) probably true; nor do I take the Adjective Vera in this place to signifie True, but meet, reason, or fit, and so it is often used in Terence, and by the Grammarians, Verum est, it is fit: so that Billa vera upon the Bill doth not signi­fie, a true Bill, that hath nothing but truth in it, but a meet, or fit Bill for the further enquiry of another Jury, which ever succeeds such an Indorsment of Billa vera by a Grand Jury; certainly it is upon a great mistake (although I confess it is often used in Law-Books, and by wise men) to call the Presentment of a Grand Jury a Verdict, to say that their In­dorsing Billa vera, or Ignoramus (which is all they do) is their Verdict, there being a great dif­ference between Billa vera and Veredictum, which signifies di­ctum veritatis, and even induceth a Conviction; for nothing can properly be called a Verdict, but [Page 126] where it is given by a Jury; after an Issue joyned, upon hearing of both sides, Veredictum, is, as it were, quoddam Evangelium, like a little Gospel of Truth, for in­deed every Verdict (which con­victs a man to the loss of Life or Estate) ought to be as true as the Gospel the Jurors swear upon; for upon the Issue of a Verdict, the Lives and Estates of all persons depend: And therefore an Attaint lies in Law against those Jurors that give a false Verdict, contrary to the truth of their Evidence, which is a Villainous Judgment, a very great Judgment in Law. And this Attaint did never by Law, lie, or was brought against Grand Ju­rors for any false Presentment, for they do but barely present an offence, upon hearing of one side, and therefore can be no Verdict (as from them) the Grand Jury being for number indefinite, that being properly called a Verdict from such a Jury, where the Law makes a determinate number of [Page 127] twelve, or twenty four, and no more: Besides, it is alwaies said in the Record, where such a Jury finds a Verdict, Juratores super Sacramentum suum dicunt, &c. But where the Grand Jury present, Juratores super Sacramentum su­um praesentant (not dicunt) there being as much difference between praesentant and dicunt, as betwixt a known truth, and the report and fame of a fact done.

And this will the better appear, if it be well observed what Grand Jurors write or Indorse upon the back of those Bills they find; for though they Indorse such Bills (Billa vera) yet they never In­dorse upon those Bills they do not find (Billa falsa) as if one were true, and the other false, for should they do so, it would be like an Accusation against the Prose­cutor that prefers the Bill, and a great discouragement to the Kings Evidence; but they modestly write (Ignoramus) which signi­fies to the Court, they are igno­rant [Page 128] of the matter in the Bill, and that they find no cause, either from what they have heard from the Witnesses, or know of their own knowledge, to commend it to a farther Enquiry: the Verb Ig­noro, coming from Ignarus, not to know, to be ignorant. And this doth further evince, that the Grand Jurors Presentment cannot proper­ly be called a Verdict; because a Verdict doth in Law either convict or acquit, which neither their Billa vera, nor Ignoramus doth; the first is always put to a farther enquiry, the last is no acquittal to the party; for although there be many Igno­ramus's against any person, yet may more Bills be preferred a­gainst the same person for the same offence; for it may be they did not find the Bill, in regard some Wit­nesses were absent or corrupted, or the matter in the Bill mistaken; happily it may be no Felony, but something done in jest, or in the nature of a Trespass, or a Natural death instead of a Murther, or the [Page 129] Witnesses of no Credit, or the like. But if there be any thing of Truth in the Bill proved to them to make a Crime, although not so fully as is laid in the Bill, they must not in such case write (Ignoramus) as if they knew nothing of a Crime; as if it be a Murther in the Bill, and the Proof reacheth but to an Infortunium, or se defen­dendo, or to any degree of un­lawful killing, they must not write Ignoramus upon the Bill; or if Burglary, and the Proof makes it but a single Felony, and no Burglary, they must not Indorse it (Ignoramus) but in all such cases, where they are in any doubt, the best way for them will be to advise with the Learned Judge, to move the Court for directions there­in. It is too great a Scandal to a Grand Jury (Persons in that quality highly to be esteemed) to say, that their Ignoramus (that is, their Ignorance) is [Page 130] their Verdict. It is very safe for Grand Jurors, before they find an Ignoramus, to examine every Witness produced; but if they have many Witnesses in Murder or Fe­lony, if any one Witness induce a strong and pregnant Presumption it is enough, without perplexing themselves, in hast of business, they need not examine any more, but put Billa vera unto it.

If a Grand Jury find, upon an Indictment of Murther, that A. killed B. what is it to them (as hath been said before) whether it be Murther or Manslaughter, whe­ther it were done, Ex malitia praecogitata, per Infortunium, se defendendo, in loco & tempore belli, or otherwise, this is Special matter, and Special matter ought to be found when it is at Issue by another Jury, and must arise (I mean the truth of it) super totam materiam of the Evidence, or proof on both sides; which can never be found and determined by a Grand Jury, that hear but one [Page 131] side, for very seldom is matter of Fact truly stated in a matter of difficulty, by one side, and there­fore (as before is said) the Sta­tute of Gloucester provides, that every Man-slaughter, per Infor­tunium or se defendendo, shall be found per Patriam after the Pri­soner hath joyned Issue with the King, and put himself de bono & malo, of good or evil, that is, either for his Acquittal or Convi­ction, super Patriam, to be tried by his Country.

And the Jurors of Life and Death themselves are not tied, as not strictly to the form of an In­dictment, so not to the whole matter of it; not to the form, as it was well urged by Sergeant Montague Reader at the Arraign­ment of the Earl of Somerset, for Murther, by poysoning of Sr. Tho­mas Overbury in the Tower, who told the Jury, That they must not expect visible Proofs in a work of darkness; that many things were laid in an Indictment only for [Page 132] form; that they must not look that the proof should follow that, but only that which is substantial, and the substance (in that Case) must be this, Whether my Lord of So­merset procured, or caused the poysoning of Sr. Thomas Over­bury, or not. The Lord Coke (then Chief Justice) and other Judges present at the Trial, stood up and said, The Law is clear in this point, that the Proofs must follow the Substance, not the Form, that the Law gives forms in Indict­ments, but substance in proofs. And yet this was spoken to a Jury of Life and Death, who are more carefully to look into Circum­stances and Forms (because their error is incurable, if they Convict a man to lose his life wrongfully) than Grand Jurors are. And I cannot but further observe (in this Case of Sr. Thomas Overbury) that which I would have all Grand Jurors, and Jurors of Life and Death, observe, as an Instance to guide them in other Cases of [Page 733] like nature, that although it was laid in the Indictment, That the ninth of May, Anno 11 Jac. Regis, Richard Weston (who was pro­cured by the Earl of Somerset) gave to the said Sr. Thomas Over­bury a poyson of green and yellow colour, called Rosacre, in Broth; and the first of June, Anno 11 Jac. Re­gis supradict. gave him another poyson, called white Arsenick, and that the tenth of June Anno 11. supradict. gave to him a poyson called Mercury, sublimate in Tarts, and the fourteenth day of Sep­tember, Anno 11. supradict. gave him a Glister mixt with poyson called Mercury sublimate; (Ʋt praedict. Thomam Overbury ma­gis celeriter interficeret, & mur­draret.) Et praedictus Thomas Overbury de separalibus venenis praedictis, & operationibus inde a praedictis separalibus temporibus, &c. graviter languebat, usque ad 15. diem Decembris Anno 11. su­pradict. quo die dict. Thomas de praedict. separalibus venenis obiit [Page 134] venenatus, &c. And albeit it did not appear, or could appear, of which of the said poysons he died, yet it was Resolved by all the Judges of the Kings Bench, that the Indictment was good; for the substance of the Indictment was, whether he was poysoned, or not; and it appeared that Weston with­in that time aforesaid, had given unto Sr. Thomas Overbury divers other poysons, as namely the pow­der of Diamonds, Cantharides, Lapis Causticus, and powder of Spiders and Aquafortis in a Gly­ster. And it was resolved by all the said Judges, that albeit all the said poysons were not contained in the Indictment, yet the Evi­dence of giving them was suffici­ent to maintain the Indictment, for the substance of the Indict­ment was (as before is said) Whe­ther he were poysoned, or not. And when the cause of the Murther is laid in the Indictment to be poyson, no Evidence can be given of ano­ther cause, because they be di­stinct [Page 135] and other causes: So if the Murther be laid by one kind of Weapon, as by a Sword, Dagger, Stilletto, Stick, Tobacco-pipe, Knife, Sheers, or other like Wea­pon, it makes no difference, the Evidence will be sufficient, if the party be slain by any of these, be­cause they are all under one Classis or cause.v. Mackally's Case, li. 9. fo. 67.

And afterwards, Anne Turner, Sr. Gervase Elwys, and Richard Francklyn a Physician (Purveyor of the Poysons) were Indicted as Accessaries before the fact done: And it was Resolved by all the said Judges, that either the proofs of the poyson contained in the Indictment, or of any other poy­son (although it were out of the Indictment) were sufficient to prove them Accessaries; for the substance of the Indictment a­gainst them as Accessaries, was, Whether they did procure Weston to poyson Sr. Thomas Overbury, or no? So that it may be observed here, what in the Case above was [Page 136] observed by the Lo. Coke, that Jurors were not to expect a direct and precise Proof in every point laid in the Indictment; shewing, how impossible it were to Convict a Poysoner, who useth not to take any Witnesses to the composing of his slibber-sawces; neither do other Murtherers, to the contri­ving of their malice, and manner of killing another, but keep the fire burning in their own bosoms until it break out.

Nor in all Cases of Murther is it material, that express Malice be proved to the Jury of Life and Death, though they be to Convict the Prisoner, much less (or not at all) is it material to prove it to the Grand Jury, who are but to present it, not to the Jury of Life and death in any case where the Law only implies it, for such proof is in the Judgment of the Court and not in the Jury, which the Jury must submit unto and be over-ruled in; much less is this implied Malice to be proved to the [Page 137] Grand Jury, for it lies not in the proof of Witnesses, but in the construction of the Law (as is said before;) and yet the Grand Jury must find those words, Ex malitia praecogitata, &c. as if they were proved expresly unto them by Witnesses, or otherwise the Jurors of Life and Death cannot enquire of the offence (as Murther is a wilful killing of a man upon ma­lice, forethought (but this must either be expressed in proof, or implied by Law) it seemeth to come of the Saxon word, Mordren, which so signifieth; and Mordridus is, the Mur­therer, even to this day amongst them in Saxony, from whence we have most of our words: Or it may be derived of Mort est dire, as Mors dira, Terms of the Law, title Murther, fol. 207. Murther:) And the Jury of Life and Death (in such a Case) must find those words expres­ly, although they cannot be proved unto them, but are only implied and supplied by Law, or else the party accused can ne­ver be Convicted of Murther, as might be instanced in very many cases, take some for all (viz.) One in prison kills his Keeper, and makes an escape, where no malice or falling out can be proved; a stranger, or other person kills a Watchman, Consta­ble, [Page 138] or other Officer, that hath good warrant to stay him, though happily there be no cause for his stay, being an Innocent person, or another person, and not the same they intended; heres no Malice, yet this is Murther ex malitia praecogitata, &c. One goes into the Street, or High-way, and kills the first man he meets, although he did never see him before; The Father or Mother takes their suck­ing Child, and dasheth out the Brains of it against the wall; Two persons are fighting a Duel toge­ther upon cool blood, upon pre­meditate malice, and a third per­son comes to part them, and is killed by one of them, this is Mur­ther ex malitia praecogitata, in him that killed him (if not in both) although neither of them ever saw him before, and yet no malice to this man:Si sit ali­quis qui mulit­rem pregnantem percusserit si puerperium non formatum, vil animatum fuerit & maximè si animatum, fecit homicid: Stamf. fol. 12. In this fol. you shall find Justice Stam­ford using the words homicid. & murdrum, as signifying the same. v. Stamf. fol. 21. c. 13. One wil­fully kicks or wounds a Woman [Page 139] great with Child, whereby the Child is wounded in her, she is afterwards safely delivered of the Child (the Child alive) the wound or bruise by the kick or blow appear­ing upon the Child mortally, where­of afterwards it dies, this is Murther ex malit. praecog. and yet what ma­lice had this man to the Child he never did see? Divers persons are unlawfully hunting in a Park, one of them kills the Keeper (after the Keeper had duly, according to his Office, admonished him to stand) all the rest of the Company (al­though a mile off in the said Park, and out of sight) are guilty of wilful Murther of the Keeper, and yet nothing of malice can be ex­presly proved. One is shooting at a Cock or a Hen, and kills another person, this is Murther, his act was unlawful. One finding a Gun or Pistol charged, lying upon a Table, or other place, takes it up into his hands, draws up the Cock (not thinking it to be charged) and in a jesting way gives fire at one in [Page 140] the 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 his Calling, and none of his, he must Jest at his peril. A Drunken-man gets upon a Horse (which a sober per­son might ride quietly) and in a Fair or Market occasions the Horse to run over another person, and kills him; this is Murther. A gives B the lie, with many other pro­voking words, as Coward, Thief, Murtherer, whereupon B strikes A, and kills him; this is Murther ex malitia, &c. words are not a sufficient provocation for one man to kill another. If one killeth another without any provocation (actual) of the part of him that is slain;Coke li. 9. fo. 67. 6. in Mackal­ly's Case. this is Murther, the Law implieth Malice. If a man know­ing that many People are coming along the Street from a Sermon,3. Inst. fol. 57. throw a Stone over a wall or house, intending only thereby to fear them, and thereupon one is killed with the Stone; this is Murther, al­though [Page 141] he knew not the party slain. If A assault B to rob him, and in resisting A killeth B; this is Murther by malice implied, al­though he never knew him.

If one meaning to steal a Deer in a Park,3 Inst. fol. 56. shooteth at the Deer, and by glance of the Arrow kil­leth a Boy that is hidden in a Bush; this is Murther, the Act being un­lawful, though here was no intent to hurt the Boy, knowing nothing of his being there.

If a Woman being quick with Child,22 Ed. 3. Coron. 263. do wilfully with a potion, or otherwise, intend the destruction of the Child in her womb, the Child being born alive, dieth of the potion, battery, or other cause; this is Murther.

If one keep a Mastiff-dog, that is used to bite people, near the Common Highway, or a Bull or Beast, that hath hurt any one (af­ter notice) they kill any one, it will be Murther in the Owner, al­though not present when the fact was done; and yet in this, and [Page 142] the other precedent Cases, here is no express Malice to be proved, but what the Law construes to be so, which can in no sense be left to the Murther is interpretative in the Law, and not to be left to Grand Jurors opinions. Grand Jury to be judge of. But in all these Cases, and many more, must be ruled and over­ruled by the Judgment of the Court, in point of Law.

Although no Malice in these Cases can be proved to the Grand Jury or petit Jury,Aliquando vero clan­culum & nemine vidente, ita ut sciri non possit quid sit actum, hujusmodi homi­cidium dici poterit Mur­drum. Stamf. 6. 1. fol. 12. Hales & Petty Case in his Comment. yet the Indictment must be expresly drawn, and so found by the Grand Jury, with these words to make it Murther, Ex malitia sua praecogitata, &c. that is, that he killed him out of his malice, fore-thought; not that these words make a new of­fence of Felony and Murther, that was not Felony and Murther be­fore, and so esteemed in all Cases where it was done voluntarily and by assault; and this appears plain­ly by the Statute of Marlebridge (formerly mentioned) 35 H. 3. [Page 143] where it is said, Murther from henceforth shall not be adjudged, before our Justices, where it is found by Misfortune only, but it shall take place in such as are slain by Felony, and not otherwise. By this Statute it is plain, that killing one unawares, by misfortune, was Murther before this Statute, and that after this Statute, all other killing, where it is Felony, shall be Murther, as before this Statute, Felony is a general term,Terms of the Law, Felony 160. fol. which comprehendeth divers hainous of­fences, for which the Offender ought to suffer death, and lose their Goods and Lands. They are called Felonies of the Latin word Fel, which is in English Gall, in French Feil, or of the ancient English word Fell or Fierce, or because they are intended to be done with a cruel, bitter, fell, fierce or mischievous mind.

So the Statute de Officio Coro­natoris, made 4 Ed. 4 Ed. 1. 1. (where the Coroner is well directed his duty) where any person is slain, or sud­denly [Page 144] dead, how he should behave himself, which is worth his read­ing. It follows in the said Act in these words, And if any▪ be found Culpable of the Murther, the Coroner shall immediately go to his house, and Inventory his Goods, Chattels, Lands, &c. (as in that Act is further directed) I only mention it to shew, that all that were found so slain, the Co­roner was to enquire of it, as Murther, or otherwise there could be no Inventorying of Goods, valuing, or seizing of Lands, &c. or committing the Offender to the Goal by the Coroner, as plainly doth appear by that Act.

So the Statute of the second of Ed. 2 Ed. 6. c. 24. 6. where one is stricken in one County, and dies in another (it being doubtful before where the Trial should be) gives power to the party concerned, to bring an Appeal (who had not power to Appeal in that case before) of Murther only in the County where the party dies, and in that [Page 145] case can bring no Appeal of Man­slaughter (as in the streightned sense some would take the word Manslaughter) by this Statute is declared, That where any Murther or Felony (which word Felony here cannot comprehend Manslaugh­ter) shall be committed in one County, and there be Accessaries to the same in another County, upon an Indictment found in the County where such Accessaries are guilty, the Certificate of the Con­viction or attainder of the Prin­cipal shall be good, to proceed a­gainst such Accessaries: So that if the Principal be not Indicted of Murther, I conceive it is doubtful upon this Statute, to proceed to the Condemnation and Judgment of the Accessary in another Coun­ty, for by no congruity can the words or Felony comprehend Manslaughter. A Pardon of all Felonies will hardly pardon Man­slaughter, or be allowed of.

[Page 146] So in the 4th of H. 4 H. 7. c. 13. 7. cap. 13. there are these words in the Sta­tute, Whereas upon trust of the priviledge of the Church, divers persons have been the more bold to commit Murther, &c. because they have been continually admit­ted to the benefit of the Clergy as oft as they offended; It is enacted, That every one being once ad­mitted to have the benefit of his When Clergy began appears not by any Com­mon Law book, it takes its root from a Constitu­tion of the Pope, that the Priests should not be accused before a Secular Judge. Co. Magna Charta 636. It hath been confirmed by divers Parliaments, and so favourably used by the temporal Judges, that it hath been al­lowed to all Lay-men that could read, which is more than the Com­mon Law requires. Stamford fol. 123. The first that mentions this Priviledge at Common Law is Bracton, that wrote in the time of King Henry the Third. Bracton lib. 3. fol. 123. The next is the Statute of Westm. 3 Ed. 1. c. 2. By the Popes Constitutions the Priviledge of Clergy extended to all Offences whatsoever; and the Prelates of England, by Colour thereof, did claim the same as generally. vide 9 Ed. 2. Articuli Cleri. Yet within this Kingdom Clergy was al­lowed only in Cases of Murther, petty Treason, and Felony, not in Treason against the King himself. Clergy (if not within Holy Orders) shall not a second time be admitted for such an offence. And that every person so Convicted for Murther, to be marked with an M upon the brawn of the left Thumb, and for another Felony with a T. [Page 147] Here it is plain that the word Murther comprehend all man­ner of Manslaughter, all manner of Felonious killing, every Mur­ther being Manslaughter, and e­very Manslaughter then as Mur­ther, they being Termini conver­tibiles, equally signifying the Ge­nus of Man-killing, you may per­ceive by what hath been said be­fore, that Felony cannot compre­hend Manslaughter or Murther, for here the one is to be burnt with an M for Murther, the Felon with a T for Theft, both which marks, upon the respective Convictions, are (as I conceive in those Cases) by vertue of this Statute, observed to this day, although we now ap­ply the Letter M to such, as the Jury of Life and Death, upon an Indictment of Murther from the Grand Jury, shall Convict of Manslaughter, that is, upon the point shall find this Special mat­ter, that is to say, that there was no Malice, expresse or implied, in him that killed the other; but in [Page 148] a sudden heat of blood, occasioned by an actual (not verbal) provo­cation in him that was killed. This contradistinction betwixt the two words, Murther and Man­slaughter (as I conceive) came into our Laws only since the Sta­tute of the 23 H. 8. c. 1. that takes away Clergy, that is, will not ac­cept of them to be Clerks that kill another maliciously. I find not this distinction before, either in the Levitical Laws (the Laws of God) or the Laws of England: No Sanctuary or place of Refuge (as is said before) by the Law of God, being allowed for such a distincti­on, but both should have been pluck't from the Horns of the Al­tar; and by our Law, in both cases (notwithstanding this Novel di­stinction) they were equally ad­mitted to Clergies, I mean by the Common Law.

The said Statute of the 4 H. 7. c. 13. being the first Statute (that I find) that appoints burning in the Hand for Murther and Felony, [Page 149] and takes away Clergy for the Second offence of the same kind, where Clergy hath been allowed before; and it is observable, that in this Statute it is called Murther, with, or without the words Ex malitia praecogitata, not having respect to our Modern distinction, which holds only (as is said) in the enquiry of the Jury of Life and Death, who have the whole matter of Fact before them, with all the circumstances thereof as it ariseth from both sides, which the Grand Jurors neither have, nor ought to have.

Then comes the Statute of the 23 H. 23 H. 8. c. 1. 8. (formerly mentioned) being the first Statute that takes away Clergy for the first offence of Murther, called in this Statute Wilful Murther That is, voluntary and of set purpose, though it be done upon a sudden occasi­on; for if it be voluntary, the Law implieth Malice. Coke 3. Inst. fol. 62., of Malice prepensed; this Statute being made to rectifie the great abuse in Ordinaries, in suffering notorious Thieves and Murtherers to make purgation, [Page 150] and provides, That no person which hereafter shall be found guilty (after the Laws of this Land) of any petit Treason, or for any Wil­ful Murther of Malice prepensed, Robbing of Churches, Robbing of Persons in their houses, or upon the High-way, wilful burning of Houses, or Barns with Corn, or Accessaries before the same, shall be from henceforth admitted to the benefit of their Clergy, but suffer death as if they had been no Clerks; it seems all that were, that is, as many as the Ordinary then esteemed so, Clerks, although they were guilty of Murther, petty Treason, and Felony, suffered not death, (so great favour and im­munity had they in those times for such bloody and crying sins) so prevalent were the Clergy, and those within Holy Orders, in those daies, that this very Act of Parliament, that takes away Cler­gy from others, that commit Mur­ther, Burglary, and Robbery, and other Offences before-named, ex­cepts [Page 151] all within Holy OrdersWithin five years of the time of King Henry the Second, there were above a 100 Murthers by Priests and men within Holy Orders., from the same pains and dangers other persons must suffer for the same Offences; which freedom and Indulgence continu­ed to them in Holy Or­ders (as they call it) until the 28 H. 8. c. 1. which provides, That they within Holy Orders, as to such and other Offences, The Exemption of the Clergy taken away by the Laws of Clarendon, Graft. 1187. shall be under the same pains and dangers that others be. Now this Statute makes none of the former offences Felony or Murther, that was not so before the making of this Statute, but only takes from them (that com­mit any of these offences) the benefit of their Clergy; certainly there wanted not those that com­mitted wilful Murther of Malice prepensed (as we now distinguish it) before the making of this Sta­tute; as those that committed Sa­criledge, robbed persons in their Houses, and upon the High-way, [Page 152] wilfully fired Houses, and Barns with Corn, and were Abettors to the said Offences: so it is very plain, that this Statute makes no alteration as to the drawing and penning of Indictments of Mur­ther, Sacriledge, Robbery, Burg­lary, &c. but only takes away Clergy from every person, who after the making of that Statute should be found guilty (as the words of the Act are, after the Laws of this Land) for any of the aforesaid Offences. So that ac­cording as the Indictment of Mur­ther was, by the Laws of this Land, before the making of this Act, so must it be after the making of this Act wilful Murther, in the Statute 32 H. 8. c. 12. and this Sta­tute of the 23. of the same King, comprehends as well that which we call Manslaughter, and every killing where the will of man is freely engaged, as it doth wilful Murther of Malice prepensed; compare them together, in the one you will find Clergy taken [Page 153] away for wilful Murther of ma­lice prepensed, and Sanctuary from wilful Murther, and generally such Offences as were prohibited Sanctuary by former Statutes are now prohibited Clergy by later Statutes. The words Ex malitia praecogitata, & murdravit (which now make all this contest) before the making of this Statute in a­ny case of Murther, neither ag­gravated nor extenuated the Of­fence, made it neither more nor less penal. But since the making of this Act, those words are made necessary in all Indictments and Convictions of Murther, and prin­cipally and only (in cases of wilful Murther) to be considered and weighed by the Court and Jury of Life and Death, upon hearing and debating the matter, with all its circumstances (as hath been said before) on both sides; those words being matter of Law, mixt with matter of Fact, and are not to be expunged by a Grand Jury, because they cannot afterwards be supply­ed [Page 154] nor implyed by the Court, and Jury of Life and Death after the Arraignment of the Prisoner, should there appear upon Tryal never so great cause, yet Felonicè and some other words (though material) may be supplyed in a Special Verdict. If upon an In­dictment of Murther, quod Felo­nicè percussit, &c. the Jury find percussit tantum, yet the Verdict is good; for the Judges of the Court are to resolve upon the special matter, whether it was Felonicè, Cok. lib. 9. 69. &c. or not? Coke lib. 9. 69. And if the Court adjudge it Murther, then the Jurors, in the conclusion of their Verdict, find him guilty of the Murther con­tained in the Indictment, and to shew the power of a Jury of Life and Death (who indeed should have the fullest and highest Charge can be laid against the prisoner, for the Offence he is to be tryed). If A. be Appealed or Indicted of Murther, viz. that he of malice prepensed kill'd B. A pleads that [Page 155] he is not guilty modo & forma, yet the Jury may find A guilty of Man­slaughter, without malice prepen­sed; because the killing of A. is the matter, and malice prepensed is but a circumstance,Plow. Com. 101 Plow. Com. 101. And generally where modo & for­ma, are not of the substance of the Issue, but words of form there, it sufficeth, although the Verdict doth not find the precise Issue, 22 H. 8. c. 19.22 H. 8. c. 19.

The first Statute that I find these words mentioned in of ma­lice prepensed, 22 H. 8. c. 14. is the 22 H. 8. c. 14. where it is said, If any person, for any petty Treason, Murther, or Felony, have obtained the King's Pardon, or is otherwise discharg­ed out of Sanctuary, and after­wards commit another petty Trea­son, Felony, or Manslaughter by Chance-medly (and not Murther of malice prepensed) and after­wards take Sanctuary again for any such petty Treason, Felony, or Manslaughter by Chance-medly, the same person shall enjoy a second [Page 156] priviledge of Sanctuary: So that he that committed Murther of ma­lice prepensed, could not enjoy the benefit of Sanctuary a second time.

Then comes the Statute of the 25▪ H. 8. c. 3.25 H. 8. c. 3. and remedies divers defects that were in the said Sta­tute of the 23 H. 8. Forasmuch as the said Act extended only to such persons as were found guilty, af­ter the due course of the Laws of this Land, divers and great Rob­bers, Murtherers, Burglars, and Felons, did commit those Offences, perceiving, and clearly understand­ing (by the words of the said Sta­tute) that they should not lose the benefit of Clergy, unless they be found guilty, after the due course of the Law, upon their Arraign­ment of, and upon the said Mur­thers and Felonies so by them done and committed, by reason where­of divers of the said persons, upon their Arraignment of the said Of­fences and Felonies upon their In­dictments against them, would [Page 157] stand mute, and sometimes chal­lenge peremptorily over the num­ber of Twenty, or else would not answer directly to the same In­dictments whereupon they were Arraigned according to Law; It was therefore provided by this Statute, That every person that hereafter should he Indicted of petty Treason, wilful burning of Houses, Murther, Robbery, or Burglary, or other Felony, ac­cording to the tenour or meaning of the said Statute of the 23 H. 8. and thereupon Arraigned, and do stand mute of malice, or froward mind, or challenge peremptorily a­bove the number of Twenty, or else will not, or do not answer directly to the same Indictment and Felony whereupon he is so Arraigned, shall lose the benefit of Clergy, in like manner and form as if he had directly plead­ed to the same petty Treason, Mur­ther, Robbery, or other Felony whereupon he is so Arraigned, (not guilty) and thereupon had [Page 158] been found guilty after the Laws of the Land. Upon the penning of this Act it seems clear that all Indictments for the unlawful or wilful killing of any person, ought to be made Murther as they were formerly before this Act. For if the Prisoner should be Arraigned upon an Indictment only of Manslaughter (according to the now distinction of Man­slaughter) and upon his Arraign­ment should stand mute, not An­swer directly, or challenge per­emptorily, whereby he could have no Tryal, it would be a great question, Whether he could have Judgment upon this Act? The words are, petty Treason, wilful burning of Houses, Murther, Rob­bery, Burglary, or other Felonies; For as it is not named here by the term Manslaughter, so it can­not (with any congruity) be com­prehended under any of those Heads: Not under the general Head of other Felonies, after the commemoration of so many several [Page 159] Felonies next before, as Burning of Houses, Robbery, Burglary, and other Felonies, must needs be intended of such like Felonies or Thefts. And what Judge (in case of Life and Death) will proceed upon such a moot point (or rather a clear Case to the contrary) to give Judgment and Sentence of Death upon any by this Act of Parliament.

Then comes the Statute made in the 28 H. 8. c. 1.28 H. 8. c. 1. and rehearseth all these former Statutes, viz. 22 H. 8. 23 H. 8. and the 25 H. 8. and continues them all until the next Parliament; and provides further, That such as be within Holy Or­ders, shall be under the same pains and dangers that others be; (all within Holy Orders being by the 23 H. 8. excepted in Cases of Murther, petty Treason, and Felony, from the pains and dan­gers that Lay persons suffered for such offences). It seems those in Holy Orders then began to lose their esteem, as appears more [Page 160] fully in the ensuing Act, which perpetuates the former Acts.

Then comes the Statute made in 32 H. 8. c. 3.32 H. 8. c. 3. and rehearseth the same Acts again, and makes them perpetual; and Enacts, That all persons within Holy Orders, which by the Laws of this Realm ought, or may have their Clergy for any Felonies, and shall be ad­mitted to the same, shall be burnt in the hand, in like manner as Lay Clerks in such Cases, and shall suffer all such pains, dan­gers, and forfeitures as Lay per­sons in like Cases.

Then comes the Statute of the 1 Ed. 6.1 Ed. 6. c. 12. and after it hath declared what Acts shall be Treason; de­clares what Offences shall be out­ed of Clergy, viz. Such persons, as in due form of the Laws, shall be attainted or convicted of Mur­ther of malice prepensed, of poy­soning of malice prepensed, of breaking of any House by day or by night (any person being put in fear) robbing any person in or [Page 161] near the High-way, felonious stealing of Horses, Geldings, or Mares, or for felonious taking of any Goods out of any Parish Church, or other Church or Chap­pel; all Offenders in any of these Cases shall be excluded of the be­nefit of Clergy, whether they be convicted by Verdict, Confession, or stand Mute, &c. and that in all other Cases of Felony, Clergy may be allowed. Here is no men­tion of petty Treason, burning of Houses and Barns with Corn, and Accessaries before, to be outed of Clergy, as is in the 23 H. 8. c. 1. So that it seems after the making of this Act, they might have had their Clergy; the new Offences added to this Act to be outed of Clergy (that were not in that Act of 23 H. 8. are only stealing of Horses, Geldings, and Mares: And by this Act Poysoning is made Murther, Poysoning mur­ther, although no malice be proved. although no malice be proved, and Clergy taken a­way.

[Page 162] Then comes the Statute of 2 Ed. 6.2 Ed. 6. c. 24. and this Statute gives re­medy in several Cases of Murther and Felony (where there was none before at Common Law). As first, where one is feloniously stricken in one County, and dies thereof in another. Secondly, where one is Accessary in one County to a Murther, or Felony in another County; before this Statute, no sufficient Indictment in any of these Cases, could be taken in either of the said Counties; for that by the custome of the Realm, the Jurors of the County where such party died of such stroke, would take no knowledge of the said stroke (being matter of Fact) in a for­reign County, although the said Counties and Places adjoyned ve­ry near together; nor the Jurors of the County where the stroke was given, could take knowledge of the death in another County, although such death most appa­rently came of such stroke; so that [Page 163] such Offence (and the other Of­fences before mentioned) for the like reason remained unpunished; and such Murther could not be pro­ceeded against, either by way of Indictment or Appeal: Now this Statute provides, That an Indict­ment found by the Jurors of the County where the death shall hap­pen, whether it be found before the Coroner, upon sight of the dead Body, or other Justices that shall have power to inquire of such Offences, shall be as good and ef­fectual in Law, as if the stroke and poysoning had been commit­ted and done in the same County where the party shall dye, or where such Indictment shall be found.

And likewise provides, That such Party, to whom Appeal of Mur­ther shall be given by the Law, may commence, take, and sue Ap­peal of Murther in the same County, where the same person so feloniously stricken or poysoned shall dye, as well against the [Page 164] Principals, as against every Ac­cessary to the same Offences, in whatsoever County or Place the Accessary or Accessaries shall be guilty of the same. And doth fur­ther provide, That where any Murther or Felony shall be done in one County, and another per­son, or more, shall be Accessary, or Accessaries, in any manner of wise to any such Murther or Felony in any other County, that then an Indictment found or taken against such Accessary, or Accessaries (up­on the Circumstances of such mat­ter before the Justices, &c.) where such Offence of Accessary shall be committed, shall be as good in Law, as if the principal Offence had been committed in the same County where the same Indictment against such Accessary shall be found.Cok. l. 9. f. 117.

Here it may be observed, That the Appeal given by this Statute to the party, where one is wound­ed or poysoned in one County, and dies thereof in another, must be [Page 165] an Appeal of Murther, otherwise it will not lye either against Prin­cipal or Accessary by the words of this Statute. So in case of an Indictment (where it is said in this Statute, where any Murther or Felony shall be committed in one County, and the Accessary be in another County) here the word Murther must be one Species, and Felony, that is Thest, another; viz. carrying of stoln Goods into another County: So that the In­dictment in this case against the Principal must be Murther, or the Accessary thereto is not tryable in another County; and there must be a Certificate of such Convicti­on or Attainder of the Principal under the Seals of the Justices be­fore whom such Principal was Convicted or Attainted, before such Accessary can be tryed; and that shall be sufficient to enable the Justices to try the Accessary in Murther or Felony in another County. And although the word Manslaughter be mentioned in this [Page 166] Statute (as thus, within the year and day after such Murther and Manslaughter committed) it is not here mentioned, as any Species of Murther, but only as the Genus called in this place only Murther and Manslaughter.

Then comes the Statute of the 5 Ed. 6.5 Ed. 6. c. 9. and Resolves three seve­ral Doubts or Questions moved upon the Statute of the 23 H. 8. c. 1.This is not much pertinent to this purpose, but that it takes away Clergy, and re­lates to several Statutes before mentioned con­cerning murther. The first Doubt was, Whe­ther Clergy were taken away by that Statute, unless the very Fe­lony and Robbery were commit­ted in the very Chamber or Place where the Owner, Dweller, his Children, or Servants should hap­pen to be (although they were in some other part of the House). The second Doubt was, If it were done in the Chamber, and the parties there asleep, and so not put in fear. The third Doubt was, Where such Robberies or Felonies are committed in a Booth or Tent in any Fair or Market, the Owner, Children, or Servants [Page 167] being then put in fear, whether Clergy should be taken away by that Statute in any of these Ca­ses.

For the clearing of these three Doubts it was Enacted, That if a­ny person be convicted for robbing any in any part of their dwelling House, or dwelling Places (the Owner, his Children, or Servants being in any part of the said House or Precincts thereof) whether sleeping or waking, such Offender shall not be admitted to his Cler­gy. And so he that robs any Tent or Booth, in Fair or Market, whether the Owner, his Wife, Children, or Servants be sleeping or waking in the same, shall lose his Clergy.

Then comes the Statute made in the 5.5 Ed. 6. of Ed. 6. and takes away Clergy from those, That commit Burglary or Robbery in one Coun­ty, and carry the Goods into a­nother County, and are there le­gally convicted.

This Statute likewise declares [Page 168] the Statute made the 25 H. 8. c. 3.25 H. 8. c. 3. shall stand in force, notwithstand­ing a Clause comprised in the Sta­tute of the 1 Ed. 6. c. 12.1 Ed. 6. c. 12. which makes void a Clause in the said Statute, and takes away the force of it in taking away Clergy from such as commit Robberies and Burglaries in one County, and are convicted of the Felony for bring­ing the stoln Goods into another County. For whereas the said Statute of the 1 Ed. 6. c. 12. de­clares, That such as are convict­ed or attainted of Murther of malice prepensed, or of poysoning of malice prepensed, or of break­ing any Houses by day or by night, (any person there being put in fear) or robbing any person in or near the High-way, or for stealing Horses, Geldings, or Mares, or Felonious taking any Goods out of any Parish Church, or other Church or Chappel, should not have the benefit of Clergy. And that in all other Cases of Felony (other than such as before are [Page 169] mentioned) Clergy should be al­lowed in like manner as it might have been before the 29 day of April, in the first year of King Henry the Eighth, by reason of which Article or Clause the said Statute, made in the 25 H. 8. which did put such Felons and Burglarors from their Clergy, that do such Offence in one Coun­ty, and after are taken with the Goods stoln in another County, and there Arraigned and found Guilty, was made void, to the great boldning and comfort of such Offenders: It is by this Act En­acted, That the said Act made in the said 25th year, touching the putting of such Offenders from their Clergy,Cok. l. 11. f. 31. and every Article, Clause, and Sentence contained in the same touching Clergy, shall from thenceforth (touching such Offences) stand and be in force.

Then the Statute of 2 & 3 of P. Stat. 2 & 3 P. & M. c. 17. & M. c. 17. takes away the benefit of Clergy only from Bennet Smith, for being Accessary to the Murther [Page 170] of Giles Rufford before the Mur­ther committed, and for procuring of the same.

Afterwards the Statute of the 4 & 5 of P.Stat. 4 & 5 P. & M. c. 4. & M. c. 4. takes a­way Clergy from every person, That shall maliciously command, hire, or counsel any person or per­sons to commit any petty Treason, wilful Murther, Robbery in any dwelling House or Houses,Dier f. 183, 186. Cok. I. 11. f. 35. Robbe­ry in or near the High-way, or wilfully to burn any dwelling House, or any part thereof, or a­ny Barn having Corn or Grain in the same.

Here I had thought to have pro­ceeded, and to have mentioned (in order of time) all such Sta­tutes as were made in any King's Reign, to take away Clergy in a­ny Case of Felony, but that would be too much to assume another Sub­ject, than what principally is here intended, having made too great a digression already, yet not al­together unuseful herein.

[Page 171] Then the Statute made 1 Jac. c. 8.1 Jac. c. 8. takes away Clergy from him that shall stab another, that hath not first stricken, nor hath a wea­pon drawn (if he dye thereof in six months, although no malice can be proved) except it be done se Defendendo, or by misfortune, in keeping the peace, or correcting his Servant or Child. This with­out all question was Murther (by malice implyed) before the ma­king of this Statute; and such a kind of killing is adjudged Murther at this day, that is, where one shall wilfully kill another (by a­ny weapon) without provocation from him in deeds; for no provoca­tion in words [only] will make it Manslaughter, or less than Mur­ther. And (in my judgment) it is an Error in practice of this In­dictment upon the Statute of Stabbing, to leave out the words (ex malitia praecogitata) in the Indictment: For the words of the Statute are (although no malice can be proved) then sure the [Page 172] meaning of the Statute is (as in other cases) it shall be implyed: And in all Indictments, where malice is only implyed, and can­not expresly be proved, those words ex malitia, &c. must be put into the Indictment, to make it Murther, and to take away Clergy, and by such words the Indictment will be good, both upon the Sta­tute, and at Common Law.

And so are the Indictments made against lewd Women that kill their bastard children, upon the 21 Jac. cap. 27.21 Jac. c. 27. although the special matter of the Statute be put into the Indictment, viz. That it is a bastard Child, and born of her body alive, yet the words, ex malitia praecogitata, are always put into the Indict­ment; which malice the Law im­plies, although none can prove the child born alive, and none can be presumed to bear malice to a dead child: And haply it might be born dead, or dye after it was born, against the will of the [Page 173] 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 Sta­tute (as some have conceived) for if the Child be found dead in Bed by her side, or in her bosome, 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 these, Shall so conceal the death thereof, that it may not come to light (that is, to the knowledge of one Witness at least) whether it were born alive or not, but be concealed, she shall suffer death as in case of Murther: If she can prove by one Witness it was born dead, then her hiding or burying it afterwards will not be Evidence against her to take away her Life upon that Statute.

These two Statutes create no new Offence that was not Felony and Murther before,1 Jac. c. 8. 21 Jac. c. 27. but only take away Clergy in those two cases, [Page 174] the one of sudden and desperate stabbing (then frequently in use) the other of lewd Whores, who having committed one sin, to a­void their shame, and the charge of a Bastard, would commit a greater, by trusting to their own strength in their Delivery, that they might more privately de­stroy the Infant, and yet avoid the danger of the Law, because in that case, none for the King could prove the Child born alive, and therefore it was impossible to Indict and Convict her at the com­mon Law for Murther, although really and in truth it were so. This Statute makes the Supposition good for the King to the Grand Jury, and Jury of Life and Death, and to the Judgment of the Judge in point of Law, that the Child (supposed to be murthered) was bornNote this here, the Grand Jury find as it is laid in the Indictment by the Kings Counsel, that the Child was born alive, although they have not the least Evidence for it, and yet I trust they are not forsworn. alive, and by her [Page 175] murthered, in regard she being a lewd woman, and contrary to the Custome of honest and innocent women (who always desire help in their Labour) chuseth to be delivered alone, this Statute puts the proof upon her (if she will avoid so strong a presumption of Murther) to be sure to have one Witness to prove the Child was born dead. It being likewise strongly presumed, that a woman (without help of some other) cannot be delivered of a Child at full growth dead in the Womb.

Two remarkable Cases I have known in my time upon the said Statute of 1 Jac. in Oxfordshire Circuit; the one in Mr. Justice Jones his time (a Learned Judge that went Sixteen years together that Circuit) where the Case was; A cunning desperate Fellow, ha­ving an intention to stab another person, and yet to avoid coming within the danger of that Statute, had (to that purpose) provided himself of a Dagger naked in his [Page 176] Pocket (he being never known to wear any before) came into an Alehouse where the party was he intended to stab, and at first com­ing used very friendly Language unto him, but afterwards all the provoking Language he could, to make the other strike him; which the other no sooner held up his stick to have done, but he stabb'd him into the Body with his Dagger, whereof he dyed: No malice could be proved, yet so much of his intention by his pre­paration and circumstances ap­pearing to design the stabbing of the other, that it was adjudged to be within the meaning, though not within the Letter of the Statute, the Lord Chief Baron Davenport being the other Judge of that Circuit) and he was deny­ed his Clergy, and after Judgment was Executed. It being then ob­served by the Judges, That imme­diately after the making of that Statute, many desperate Fellows (that could read as Clarks) to [Page 177] those they had a mind to quarrel withal) would use all means to make them strike first, and then suddenly stab them; and by this way avoid the said Statute, and become guilty only of a Man­slaughter at Common Law, and so receive the benefit of Clergy, which the Statute takes away. The other Case was in the same Circuit, very lately, before Mr. JusticeSir Wadham Windham, Kt. one of the Ju­stices of the Common Pleas. Windham, at the As­sizes at Worcester, a little before his death, Where a Father cor­recting his Son, for some undutiful­ness he conceived in him (having a Knife in his hand, being eating his dinner) struck his Son over the back with his knife, and gave him a stab whereof he died: The Judge apprehended this Offence to be within the Statute, notwith­standing that Exception in the Statute, of a Father correcting or chastising his Child or Servant, in regard it was an unreasonable way and means of correction: whereupon he reprieved the Fa­ther [Page 178] for some short time, and ad­vised with the rest of the Judges at Serjeants Inn, and after he had their Opinions that it was within the Statute, he forthwith sent down a Warrant to the Sheriff to do Execution, having received Judgment of Death at the Assizes; and yet the words of the said Act of Parliament are (although his Son, or Servant, dye of such cor­rection, he shall not be within the said Act).

Observe here how necessary it is, That all the circumstances that can be in an offence of blood, be put into an Indictment, and be so found by the Grand Jury (as it is advised by the King's Counsel) where there is innocent blood shed by the party indicted, that every part and circumstance of the Fact, with all its aggravations, may come to be considered and weighed by the Court, which otherwise cannot be; as in this Case of the Father killing his Son, if the In­dictment had not been drawn up­on [Page 179] the Statute, but at Common Law, in regard of that Exception in the Statute (as the Grand Ju­ry then would have had it) the party had been capable of Clergy, and so might have escaped that Judgment of Death. If such dif­ficulties appear to the Learned Judges, upon due consideration of the Law, and of all circumstances in cases of blood, how much more will it prove difficult to Grand Ju­rors? and how little reason have they to expunge, alter, and obli­terate circumstances of aggravati­on in such an Indictment, upon hearing only of one side, as they please, and so prevent the Judg­ment of the Court therein, taking from them the power, even to ex­amine such a circumstance, as may (if truly stated and examined) rule the whole Case, as before is observed.

In all the Offences formerly mentioned, where Clergy is ta­ken away by those Statutes, there is no new offence of Felony or Mur­ther [Page 180] made, that was not so before the making of those Laws, as might be instanced in Murther, Robbery, Burglary, Sacriledge, Cutting of Purses, Stealing of Horses, Rape, and the like; but only Clergy ta­ken away from the Offender (which is no more but the abusive bloody liberty of Clerks in those times restrained) as wilful Mur­ther where malice appeared, and other mixt and simple Felonies, which were then most raging and reigning Offences in the Kingdom, and cryed out for a greater Reme­dy, a stricter Law to be made a­gainst them (as appears by the Preambles of those Statutes that take away Clergy in those Special Cases) that were Murther and Felony at the Common Law be­fore; from whence I conclude, that the Forms of Indictments of Felony orThe name of Murther was not changed, but the Law retains it continually for the heinousness of the Crime. Stamford fol. 19. If not the name, then not the words that make it so. Murther, are no [Page 181] way directed to be altered by those Statutes that take away Clergy, but are to continue in the same form as they did before at the Common Law. And I am not of their Opinion, That the words (ex malitia praecogitata) came into Indictments immedi­ately after the aforesaid Statute of 23 H. 8.23 H. 8. Certainly there were Murthers committed, and that fre­quently, of malice fore-thought, before the making of that Statute, and those Murtherers had their Clergy also; otherwise that Statute had never been made to take it away. If the Grand Jurors shall say, They will not find those words, Ex malitia praecogitata, put into the Indictment, except the malice be plainly proved to them; then fare­wel that distinction and inference of implied malice, which the Law makes, in many Cases, and which otherwise cannot be made; they may as well say, That they will not find such words Treason, that are Treasonable, because no [Page 182] Act of Parliament, or express Case at Common Law, says those particular words are Trea­son; or that they will find no In­dictment of Burglary, although the Goods stoln be found with the Thief, and the dwelling House broke, because no Witness stood by to see the breaking of the House, entring into it, and stealing thence the Goods: Or against a Cut-purse, though the Purse or Mony be found in his hand, or because none see him take it forth of his Pocket; or to find the Indictment, because it is laid to be done Vi & armis, with force and arms, and yet said to be done (in the same Indict­ment, clam & secrete, & sine no­titia) privily, secretly, and with­out notice of the party, which (in Fact) could not be done if it were done by force or arms: Or to find an Indictment of Robbery done upon the High-way, against those that rob in Vizards, not­withstanding the mony be owned, and found about them, because [Page 183] the party cannot swear he saw their faces, and that these were the men: Or that such a one kill'd a man, that comes out last from him with a bloody Sword in his hand, and no person besides with him. In all these Cases it is pos­sible, the Parties accused might find the Goods stoln; and so might the bloody Sword be sound, and a­nother do the Fact; but sure here is great and violent presumption (sufficient for an Accusation) for a Grand Jury to find an Indictment (which is but an Accusation upon Record) to bring the Delinquent, or Party so strongly suspected, to a Judicial Trial; and as well may it be presumed, when one Christi­an is kill'd by another, it may be Murther, that there may be a seed of malice in the will of him that did it, by a voluntary and spon­taneous motion in that act, that may (upon a greater Debate) contain some circumstance in it, that by some reason in Law (bet­ter known to the Learned Judge, [Page 184] than the Grand Jurors) that may in Law prove malice expressed or implyed in the criminous Per­son.

And if it be so difficult in cases of blood for Grand Jurors to deter­mine what is Murther, and what is not, let them consider how dan­gerous a thing it is for them to miscarry in their Presentment in cases of blood, of innocent blood (as is before manifested) and so acquit the Murtherer, and take the imputation of blood-guiltiness with them, from the Assizes to their respective Families, where it may and will cry against them and the whole Kingdom for ven­geance: I do therefore submit it to their serious consideration, up­on what hath been said, Whether it be not much better, and a safer way for them, to submit their Judgments herein to the Rule of Law, and the Resolutions of the Learned Judges, than by their extenuating presentment (for the Court can go no higher than they [Page 185] present) to stifle Justice in the birth, and to acquit a Murtherer: For the Indictment, although no part of the Trial, yet is the very Basis and Foundation of all the o­ther Proceedings. And let them consider how strict (formerly) the very Law of England was in King Edward the Second's time in ca­ses of blood, where the very will and intent to kill a man (although it was not executed) was punish­ed for the Deed) although the party wounded recovered of his wounds.

A memorable Case there was in that King's Reign,Stamf. fol. 17. Pl. Coron. Tit. Coron. Fitz. V. 15 Ed. 2. p. 383. cited by Justice Stamford, where one com­passed the death of another, and did so grievously wound him, that he left him for dead, but after­wards the party recovered; this was then adjudged Murther, be­cause his will appeared so plainly to have kill'd him. For, as Bra­cton says, In maleficiis spectatur voluntas, & non exitus, then was the Will by our Law (as it is yet [Page 186] before God) reputed for the Deed: But now our Law couples the Will and the Act together in cases of blood; but looks more upon the Act than the Will: For though the Will do neither intend the Act (as it is done) nor approve of it (after it is done) yet if the Will in any part of the Act be cri­minous, it makes the Offender (in our Law) in cases of blood, guilty of the whole Fact, with all the obliquity and evil in it. As if a man intend only to beat another,Vid. Tit. Me­morat. p. 331, 350. to strike him, but not to kill him, and the party die of the stroke, it may be murther in him that gave the stroke.Hales & Petit Case le Com. 261. a. So if three men come to make a Disseisin, and one of the three kill a man, the other two persons are guilty, as princi­pals in the murther, although they neither consent to it, will it, or strike the Party, nor came with that intent, but only were in com­pany to have done another Act. So if one,18 El. Pl. 474. to kill his Wife, give her (lying sick) Poyson in a roasted [Page 187] Apple, and she eating a little of it, give the rest to a little Child of theirs, which the Husband (lest he should be suspected) suffereth the Child to eat, who dieth of the same poyson, this is murther though the Wife recover; for the Poyson ministred upon malice pre­pensed to one, which by a con­tingency procureth the death of another whom he meant not to kill, nor bear any malice to, shall be as great an Offence as if it had taken the effect which he meant, proceeding from a naugh­ty and malicious intent. So where two men combat together, upon the evil and provoking words of a woman, and the one killeth the other, the woman in this case was Arraigned of the death of him that was kill'd; and in this Case the Grand Jurors found it mur­ther. So if an ignorant person take upon him to give Physick to one that is not well, and through his ignorance administreth that unto him that (apparently) kills [Page 188] him, this is murther. And so it might be instanced in many si­milar Cases, which are not to be disputed by Grand Jurors, but presented by them in re. forma, as the Indictment is advised by the King's Council, and comes to their hands, where they find (as before is said) a criminous Par­ty in the Indictment, and a Bo­dy (found) of a reasonable Crea­ture, certainly, or probably kill'd by him, although the Evidence be not express to every circum­stance of aggravation, as it is laid down in the Indictment, whereby to bring the Party and his Offence of Blood to a full Trial by a second Jury, which otherwise can never be done, neither the Law therein known from the Court in such a Case.

Besides, many other Inconveni­ences and doubts may arise where the Grand Jury find the Bill of Indictment only Manslaughter, which by finding of it Murther would be prevented, as in chal­lenging [Page 189] upon his tryal above the number of twenty Jurors; the Sta­tute of the 22 H. 22 H. 8. c. 14. made perpetual by 32 H. 8. 3. Brook Chal­lenge 217. 8. c. 14. reduceth peremptory challenge upon an Indictment or Appeal, which at the Common Law was allowed to the Prisoner, to challenge thirty five Jurors (which is under the number of three Jurors;) this Statute so provides, That a Pri­soner shall not now in Petit Trea­son, Murther and Felony, challenge above twenty Jurors, without shewing cause: And in case of Treason, and misprision of high Treason, it was taken away by the Statute of 33 H. 33 H. 8. 1, 2 Ph. & Mar. 8. but now by the Statute of 1, & 2 Phil. & Mar. the Common Law is revived, for any Treason the Prisoner shall have his challenge to the number of 35; and so it was resolved by all the Justices upon conference between them in the Case of Sir Walter Rawleigh and Geo. Hil. Ja. R. Brooks: By this Statute it is plain, that if one be Indicted or Appealed for Murther, and challenge above [Page 190] the number of twenty Jurors pe­remptorily (without shewing cause) it shall be a Conviction of the offence and Capital; but it is a great quaere, whether he that is Indicted or Appealed only for Manslaughter (which is not named in this Act, nor can be rationally comprehended in the word Felony more than Murther might have been) may not challenge thirty five Jurors, as at Common Law? so it may be a quaere, where the Prisoner Indicted only of Man­slaughter, shall stand mute, or will not answer directly to the Indict­ment, whether notwithstanding he shall not have his Clergy? for the Statute of the 1 of Ed. 6. c. 12. and other Statutes that take away Clergy from such offences and Of­fenders (as are therein mentioned) take it away as well from such as stand mute, answer indirectly or challenge peremptorily above the number of twenty, as from those that are convicted by Verdict, or Confession upon their Arraign­ment; [Page 191] otherwise such as stand Mute, answer indirectly, or chal­lenge peremptorily, might have had their Clergy (as the Act seems to imply) otherwise it had not taken Clergy away in those cases.

The Judgment of Paine fort & dure, that is, Pain grievous and durable, was not at the Com­mon Law, but ordained by the Statute of West. 1. made Anno 3 Ed. 1. whereby it was enacted, That notorious Felons, openly known of evil name, who will not put themselves upon Enquests of Felonies, which men do prosecute at the Kings suit, shall be put in hard and strong Prison, as they which refuse to be tried by the Law of the Realm; but this is not to be intended of Prisoners which be taken of light Suspicion. By which Statute it doth appear, that none shall be judged to this pain, if there be not evident or proba­ble matter to convince him of the offence whereof he is arraigned, [Page 192] or otherwise,Stamford lib. 2. fol. 149. Poulton De Pace, fol. 211. that he is a notable Thief, or openly known to be of Evil name; which the Judge ought strictly to examine before he pro­ceed to this Judgment against him, it would be very hard (which the Law is never in favorem vitae) to extend this Statute to Man­slaughter, which may be suddenly committed by one of good name and fame, and not a notorious Thief (as this Act mentions) and yet may have an obstinate humor to refuse Trial, challenge perem­ptorily, and make indirect Pleas.

It is the severest Judgment (that I know) the Law passes upon any Offender, and therefore not to be extended further than the plain understanding of the words of the Act, a Sentence so severe, that (I think) never Eng­lish man as yet (though many have been Prest to death) had the heart to execute it according to the letter, which Sentence is as followeth, That the Prisoner shall be sent to the Prison from whence [Page 193] he came, 4 Ed. 4. 11. 14 Ed. 4. 7. 6 H. 4. 2. and put into a Mean house, stopped from light, and there shall be laid upon the bare ground, without any Litter, Straw, or o­ther covering, and without any Garment about him, saving some­thing to cover his Privy members, and that he shall lie upon his back, and his head shall be covered, and his feet bare, and that one of his Arms shall be drawn with a Cord to one side of the house, and the other Arm to the other side, and that his Legs shall be used in the same manner, and that upon his Body shall be laid so much Iron and Stone as he can bear, and more, and that the first day after he shall have three morsels of Barley-bread, No Forfeiture but of Goods. Fit. Esch. 19. without any Drink, and the second day he shall drink so much as he can, three times, of the Water which is next the Prison-door, saving Running-water, with­out any Bread; and this shall be his Diet until he die.

[Page 194] Another inconvenience may a­rise, where the party Indicted and Arraigned only of Manslaughter shall plead a Forrein plea of some­thing done in another County, to the delay of Justice; the Statute of the 22 H. 8. c. 14. only provi­ding, in cases of Petit Treason, Murther, or Felony, that Forrein pleas in those Cases shall be tried before the same Justices before whom such persons shall be Ar­raigned, and by the same Jurors of the same County that shall trie the petit Treason, Murther, or Felony.Coke 3 Inst. fol. 27. If a man be Indicted of Treason he may plead a Forrein plea, which shall be tried in ano­ther County, otherwise in cases of Murther, Petit Treason, and Fe­lony.

Another inconvenience may be upon the Statute of the 6 H. 6 H. 8. c. 6. 8. c. 6. By that Statute, the Justices of the Kings Bench are impower'd to re­mit the bodies of Felons and Mur­therers removed thither to be tried in the County, and their In­dictments [Page 195] removed into that Court, which before they could not do by the Common Law; be­cause a Record that is once brought into the highest Court, could not be remanded to an In­ferior,Stamf. fol. 157. Stamf. fol. 157. this Sta­tute only provides in case of Felony and Murther, not Man­slaughter.

The last Inconvenience I shall mention (though I could many more) by reason of Indictments of Manslaughter, will be in Cities, and Burroughs, and Corporations, that have power to try Murthers and Felonies; the Statute of the 23 H. 23 H. 8. c. 13. 8. c. 13. provides, That in Trials of Murthers and Felonies there proceedings shall not stay as formerly, or be delaied by reason of challenge of such Offenders, for lack of sufficiency of Free­hold, to the great hindrance of Justice; but that if the Jurors be worth in Monies and personal Estate Forty pounds, they shall not be challenged, but admitted. [Page 196] It will be a very extorted constru­ction that upon this Statute, and the others before shall bring in Manslaughters under the word Felonies, Every Man­slaughter is Felony, but not e converso. whatever practice is, or hath been used to the contrary. I conceive it fit to be better con­sidered, for it is not sufficient (in all Cases, much less in this) with­out, or against a Rule and Act of Parliament, to justifie practice by practice; this happily in the end might prove a Common Thief to be an honest man.

Besides, observe the penning of other Statutes, and that will give a clearer light to the understand­ing of these; by the Statute made in the 27 of H. 27 H. 8. c. 25. 8. c. 25. it was ena­cted, That no person or persons, of what estate or degree soever, shall have power or authority to par­don or remit any Treasons, Mur­thers, Manslaughters, or Felonies, whatsoever they be, &c. Here you see the Makers of this Law mention the word and offence of Manslaughter, in terminis, and [Page 197] not leave it to be understood, or to be comprehended in the word other Felonies, though it is most comprehensively said, or Felonies whatsoever they be.

So the Statute made in the first and second Ph.1, 2 Ph. & Mar. c. 13. & Mar. c. 13. That the Justices of the Peace (one being of the Quorum) when any Prisoner is brought before them for any Manslaughter or Felony, before any Bailment or Mainprise, shall take the examination of the Prisoner, and Information of the Accuser, and certifie it at the next Goal-delivery, &c. Here you see Manslaughter and Felony both exprest, as necessary, several times in the Act.

So the Statute of the 23 H. 23 H. 8. c. 12. 8. c. 12. that directs the manner of punishing of offences in the Kings Palace or House, says, All Trea­sons, Misprisions of Treasons, Murthers, Manslaughters, and other malicious Strikings, &c. and so divers other Acts of Parliament (as might be shewed) that make [Page 198] or intend any provision against Manslaughters, do particularly name the word Manslaughter, and never leave it to be intended or included in the word Felony. Kel. fol. 98. It is true, that by a Commission granted to certain persons to enquire of all Felonies, they may thereby take Indictments of Murther; though a Pardon of all Felonies will not avail him who hath committed Murther, in regard of the Statute made 13 R. 2. 1.

And the Commission of Oyer and Terminer, made to the Judg­es every Assizes, that enables them to enquire of all Offences, hath these express words in it, And of whatsoever Murthers, Fe­lonies, Manslaughters, Killings; not leaving Manslaughters to be intended by the general words of Felonies or Killings.

Many more Inconveniences might be shewed, but these (with what hath been before shewed) may be sufficient, until better reasons appear to satisfie any [Page 199] understanding Grand Juror, to e­steem it much the better way to find such Bills Murther, rather than Manslaughter, there being every way less inconvenience in it, in relation to the Laws of the Land (until by the wisdom of a Parliament they are altered) and much more of satisfaction and safety to their own private Con­sciences, that stand so deeply en­gaged to discover Blood-guilty persons, and to suppress and silence the cries of Innocent blood, that by our Laws (in the first place) cries to Grand Jurors for Ven­geance against the Murtherer and Manslayer.

It now remains that two Ob­jections be answered, that happi­ly to such as do not well weigh and consider them may seem to be of some force against what hath been herein said to the contrary; the one is, The general liberty, and constant practice Grand Ju­rors have taken ever since the making of the said Statute of the [Page 200] 23 H. 23 H. 8. c. 1. 8. c. 1. to find, as they please, either Murther or Manslaughter; not as the Indictment comes to their hands from the Kings Coun­cil, but as they apprehend the E­vidence that is brought to them, taking upon themselves not only the sole Judgment of the Fact, and what the Law is that ariseth upon the said Fact, taking the Judgment of the Law therein from the Court (although they hear but one side) and putting in and putting out what they please in such Indictments, notwith­standing it appears to them the party Indicted is guilty of shed­ding Innocent blood, varying the species of Murther and Man­slaughter as they please, until af­ter Arraignment of the Pri­soner it be too late to amend it, as I have often known.

The other Objection is (and this seems to be of some weight and authority in Law against what hath been said) That Mr. Justice Stamford, in his book of [Page 201] The Pleas of the Crown, is of another opinion, viz. That a Grand Jury may find the Special matter in the Indictment; that is to say, that the Prisoner killed the other se defendendo, or per Infortunium, &c. which the party upon his Arraignment may either confess, or estrange himself from the fact, and plead, Not guilty.

To the first Objection, as to the liberty and practice of Grand Jurors to the contrary so long used, I Answer, It hath been before in this Treatise sufficiently made out, the great Inconvenience and mis­chief, in Cases of Blood, that is the consequence of such practice, and that being granted (as it can­not be denied) I suppose no wise man will think, that the long practice of such an Errour will justifie it, or encourage the longer continuance of it, in the highest Courts of Law and Justice, and in so high and tender an Offence as the disquisition of Blood is, although in Inferiour County [Page 202] Courts, where (many times) are ignorant Judges, and mean Clerks; and in ordinary Offences this Max­ime may hold good, that Commu­nis Error facit Jus, that the common practice of an Error makes it the Law of the Court, and not convenient to be altered; yet I have never observed that Maxime to take place in the high­est Courts of Justice in this King­dom, before the Judges of the Courts at Westminster, Justices of Oyer and Terminer, Justices of Goal-delivery, and Justices of As­size, who sit not to practice, but to correct and destroy Errors of all kinds, especially in Trials of mens Lives, in Cases of Blood, and whoever shall urge that Maxime against what I have here said, doth by that sufficiently grant, what I have here endeavoured to prove, viz. the errour and in­convenience of such practice, which ought no more to be con­tinued, than a long custome, when it is found to be unreasonable; [Page 203] but I shall never allow (neither can it be proved) that there hath been in this Kingdom such liberty and practice, allowed and indulg­ed by the Reverend and Learned Judges to Grand Jurors, to find and alter Indictments brought un­to them in cases of Blood, as they themselves please and judge con­venient; they being (as hath been said before) not the Judges, nor the Triers, but Presenters of a fact of Blood, fit for the Judgment of the Jury of Life and Death, who only are the proper Judges of the Fact; for none can be said to be proper Judges of any Fact in Controversie that hear but one side, for Grand Jurors hear no more, and therefore ought in Law, Reason, and Conscience (where they find a guilty person that hath had his hands in Blood, and unjustly taken away the Life of another person) to leave it (as an entire fact of Murther) to the Trial and Verdict of the second Jury to find the truth of the Fact [Page 204] (upon hearing of both sides, and receiving the Judgment of the Court) in what species or degree of Murther it is, which likewise if any doubt or point of Law a­rise in the Case (as many times it doth) they may find it specially (which a Grand Jury cannot) and thereupon receive the opinion of all the Judges of England (Mur­ther being the Genus of the se­veral Species) and in common acceptation, he is accounted a Murtherer that kills any man, or reasonable Creature unlawfully; and the Commandment is, Thou shalt do no Murther, which cer­tainly comprehends all unlawful killing, otherwise that command is not well translated from the Text, Non Occides, Thou shalt not Kill; and in my own expe­rience, for above forty and five years in one Circuit, I have very often known many Learned Judges, such as Mr. Justice Do­deridge, the Lord Chief Baron Davenport, Mr. Justice Jones, [Page 205] Mr. Justice Whitlock, and many others, often rebuke and reject the Presentments of Grand Ju­rors, in Cases of Blood, and other Felonies, where they have either varied from their Evidence, or from the Law, the Judges before hand having received some light of the nature and testimony of the Fact, from the Informations and Examinations therein delivered into the Court by the Justices of the Peace and Coroners (a very good Rule for Judges to observe) and often either put it upon an open Evidence in Court (which is very inconvenient) or discharged them of such a Bill, and bound the Witnesses over to the next Assizes (which is also very incon­venient) in regard Witnesses may die, or the Prisoner may die, and so the Forfeiture is lost, and the offence unpunished; and in Cases of Blood there will be too much opportunity given for compound­ing and making an Interest with the Prosecuter and Witnesses; [Page 206] and in these modern times, since the happy return of our most gra­cious Sovereign, King CHARLES the second, I have known several learned and pious Judges, some since dead, others yet living, and eminent upon the Bench in Ox­fordshire Circuit, Fine and Impri­son several Grand Jurors for their miscarriage and misdemeanour in delivering in Bills of Manslaughter instead of Bills of Murther, against the clear and positive directions of the Court. And this may serve for answer to the first Objection, from the liberty and affected pra­ctice of Grand Jurors (in finding of Bills in Cases of Blood) accord­ing to their own humor and appre­hension to introduce a Law, that therefore they may find them as they please, notwithstanding that the Court adviseth and directeth the drawing of them MUR­THER.

To the second Objection of Mr. Justice Stamford (in the place be­fore cited) where he saith, that [Page 207] whereas the Statute of Glouc. c. 9. saith, That he ought to put himself in an Inquest de bono & malo, this is only intended (saith he) when he is Indicted of Murther or Manslaughter, and not where in the body of the Indictment, the Special matter is found (as if the Grand Jury may find especial Ver­dict) of per Infortunium, or se defendendo, &c. I answer to this Objection, Certainly Mr. Justice Stamford (though a very Learn­ed man) did well consider this matter, and his Opinion therein, when he set it down; for he in­forms you not what shall become of such an Indictment, where on­ly the Special matter is found by the Grand Jury, whether the par­ty may Traverse it (for it is but a Trespass) or confess it, and so have his Pardon of Course upon such confession, and then the Judges that are to make the Report or Certificate of the nature of the fact to the King in Chancery, must Certifie like blind and deaf men, [Page 208] that never saw or heard any thing of the merit of the cause, nor un­derstand any thing by evidence of the nature and circumstance of the Fact; like the Lay-zealot, must believe as the Priest believes, pre­ferring Obedience before Truth; but sure no prudent and pious Judge will make such a blind Cer­tificate, in case of Blood.

Besides, whoever shall judici­ously and impartially compare and weigh the Statute of Marlebridge and the Statute of Gloucester to­gether, and the reasons of the Statute of Gloucester, what mis­chief it was made to prevent, and consider but the nature of the thing, will never be of his Opinion in this particular, there is so little of reason or true meaning of either of those Statutes in it. The words of the Statute of Marlebr. are these, Murther from henceforth shall not be judged before our Justices, where it is found Misfortune. In the time of this Statute, it seems, there were two Juries, the Grand [Page 209] Jury, and the Jury of Life and Death, to present and try the Of­fences of Murther, otherwise the Justices could not judge of it, they never passing Judgment upon a Grand Juries presentment; which, by the way, shews, that it is left to the Judges (not the Grand Jury) upon the examination of the cause in trial by the Jury of Life and Death, to judge of the nature and circumstances of Murther, and of what species or degree it is. This Statute of Marlebridge did only declare a new Law, that where it was found per Infortunium, or se defendendo, it should not be Fe­lony and Murther as it was before that Statute; but that the party in such case should have (upon Certificate of the Justices before whom he was tried) his Pardon of course; happily then, upon the Presentment of the Grand Ju­ry; which might be the occasion of this erroneous Opinion of this Learned Judge.

[Page 210] Then comes the Statute of Glou­cester, as if the other had not been truly understood, or at least had not sufficiently provided for offen­ces of Blood, and in plain words (as before is mentioned) com­mands, That he that kills a man by misfortune, or in his own de­fence, or in any other manner with­out Felony, shall be put in Prison until the coming of the Justices in Eyre, or Justices of Goal-delivery, and shall put himself upon the Country for good and evil, that is, for life and death, which cannot possibly be understood where the Grand Jury find it but per Infortu­nium, or se defendendo, &c. for that is not Felony, and so cannot be Arraigned thereupon, whereby to put himself de bono & malo, so as to bring the matter to Issue be­tween him and the King; nor can the Judge in that case (as is said before) make a true and right Cer­tificate of the offence and matter of fact, which must be specially and truly certified according to [Page 211] Law, whereby to procure a pardon, as that Statute expresly requires. And if the party shall plead Not guilty to that Special matter found by the Grand Jury, what can that signifie (as before hath been shew­ed) for the Jury that is charged with such Indictment, must either find the party guilty in Special manner, as it was found before by the Grand Jury (and that makes too specially Verdicts;) or else generally Not guilty; if they find him guilty of the Special matter (as the Grand Jury found before them) and the Judge and Court shall afterwards adjudge (as they may, having heard the Evidence) that super totam materiam, it is either Murther or Manslaughter; then no Judgment of Death or Clergy can be given upon that In­dictment or Verdict, but all must be tried over again, and a new Circuit of business upon a second Indictment of Murther or Man­slaughter; and how dilatory and idle would this be at an Assizes, in [Page 212] course of Justice, and in case of Blood.

If Judge Stamford were alive again (although a person of great Learning and Judgment) he would surely (with some other Errors in that book) recant this; neither is it of any advantage to the Pri­soner, to have it found Specially by the Grand Jury, for he can ne­ver plead either such an Acquittal or Conviction in Bar to an Indict­ment of Murther or Manslaughter in the same case (as before is shew­ed;) and whoever shall read and well consider this seventh Chap­ter, written by Judge Stamford, in The Pleas of the Crown, wherein this Opinion is, especially towards the end of it, when he comes to observe the Letter of the Statute of Gloucester, and how the Certi­ficate of such a Pardon of course shall be obtained, must of necessi­ty hold his first Opinion in that Chapter (for the Special matter to be found in the Indictment) to be very inconsiderately expressed [Page 213] for the reasons aforesaid. And why may not this Learned Judge (for humanum est Errare) mistake in this, as in some other Opinions in that Book of his styled, The Pleas of the Crown? for which he is detected by the Lo. Coke, and o­thers that followed him, who standing upon his shoulders must needs see farther, than he did or could; As to instance in some few:

As first,Stamf. fol. ult. 6. that Respit of Execu­tion (where a Woman is privi­ment enfent) where a Woman after Judgment pleads her Belly, shall be granted only (says he) in Felony: whereas it is grantable both in high Treason and petit Treason.Coke 3 Inst. fol. 18.

A second is,Stamf. Pl. Cor. 63. 26 Ass. p. 52. That the year and the day after the Murther and Ho­micide committed, shall be ac­counted after the blow given, or poyson administred: whereas it ought to be accounted after the death,Coke 3 Inst. fol. 53. for then the party was murthered, and not after the stroke [Page 214] or poyson given; Coke lib. 4. fol. 41, 42. in Heydon's Case.

A third observed by the Lord Coke (writing upon the Statute 8 H. 6. c. 12. which makes it Fe­lony to steal away Records) upon these words in the said Statute, Their Procurers, Counsellors and Abettors, saith this Act, expresly extendeth to Accessaries before, and leaveth Accessaries after to the construction of Law; v. 3 & 4 Ph. & Mar. Justice Dalison's Rep. yet there may be Accessaries after the Fact, for whensoever an offence is made a Felony by Act of Par­liament, there shall be Accessaries to it, both before and after, as if it had been a Felony by the Com­mon Law: And therefore, though this Act expresseth only Accessa­ries before, yet it taketh not away Accessaries after, but leaveth them to the Law, contrary to the Opi­nion of Mr.Stamf. Pl. Cor. 160. Justice Stamford.

And again, by the Statute of the 8 H. 8 H. 6. c. 29. 6. c. 29. Insufficiency or want of Freehold, is no cause of Challenge to Aliens who are Im­panelled [Page 215] with Aliens, notwith­standing Mr.Stamf. Pl. Cor. 160. Justice Stamford's Opinion, Pl. Coron. 160. for this Statute saith, That the Statute 2 H.2 H. 5. c. 3. 5. c. 3. shall extend only to Enquests betwixt Denizen and Denizen.

But enough (and perhaps too much) hath been said in mention­ing the mistakes of that Reverend and Learned Judge Sr.Sr. W. Stam­ford, Kt. one of the Justices of the Common Pleas. William Stamford, in that Book of his termed Placita Coronae, Pleas of the Crown, which it seems by the Title of it hath been corrected, amended, and enlarged, since the first Impression of it; which I have not urged in the least to de­tract from the Learning and Ho­nour of that great and learned Judge, or from the value of that Book, which notwithstanding there may be a few mistakes found in it, yet is of as high esteem as any Book of the Law, extant upon that Subject; but principally to shew, that he may as well erre in his Opinion concerning Grand Ju­rors [Page 216] finding the Special matter, as in those mentioned; and that no human Author, in the Law, or any other Science, is infallible; and that we must be very careful how we ground any Law upon the bare Opinion of any one, or two per­sons (though of never so great parts or esteem) whereby to ju­stifie or maintain a great Inconve­nience in practice, especially in Cases of Blood, as before hath been shewn.