THE Principal Ends of all Ci­vil Government, and of Hu­mane Society, were the Se­curity of Mens Lives, Liber­ties and Properties, mutual Assistance, and Help, each unto other, and Provisi­on for their common Benefit and Ad­vantage; and wherethe Fundamental Laws and Constitution of any Govern­ment have been wisely adapted unto those Ends, such Countries ane King­doms have increased in Virtue, Prow­ess, Wealth and Happiness, whil'st o­thers through the want of such excel­lent Constitutions, or neglect of pre­serving them, have been a Prey to the Pride, Lust and Cruelty of the most Po­tent, and the People have had no Assu­rance of Estates, Liberties or Lives, but from their Grace and Pleasure: They have been many times forced to welter­in each others Blood in their Masters [Page 4]quarrel for Dominion, and at best they [...] [...]erved like Beasts of Burden, and [...]ntinual, base subserviency to their [...]ers Vices, have lost all sense of [...] Religion, Virtue and Manhood.

Our Ancestors have been famous in [...]eir Generations for Wisdom, Piety, [...]d courage, in forming and preserving [...] Body of Laws to secure themselves and their Posterities from Slavery and Oppression, and to maintain their Na­tive Freedoms; to be subject only to the Laws made by their own Consent in their general Assemblies, and to be put in Execution chiefly by themselves, their Officers and Assistants, to be guarded and defended from all Vio­lence and Force, by their own Arms, kept in their own hands, and used at their own charge under their Princes Conduct; entrusting nevertheless an ample Power to their Kings, and other Magistrates, that they may may do all the Good, and enjoy all the Happiness that the largest Soul of man can ho­nestly wish; and carefully providing [Page 5]such means of correcting and punishing their Ministers and Councillors, if they transgressed the Laws, that they might not dare to abuse or oppress the Peo­ple, or design against their Freedom or Welfare.

This Body of Laws our Ancestors always esteemed the best Inheritance they could leave to their Posterities, well knowing that these were the sacred Fence of their Lives, Liberties, and Estates, and an unquestionable Title whereby they might call what they had their own, or say they were their own Men: The inestimable value of this In­heritance moved our Progenitors with great resolution bravely from Age to Age to defend it; and it now falls to our Lot to preserve it against the Dark Contrivances of a Popish Faction, who would by Frauds, Sham-Plots, and In­famous Perjuries, deprive us of our Birth-rights, and turn the points of our Swords (our Laws) into our own Bow­els; they have impudently scandalized our Parliaments, with Designs to over­turn [Page 6]the Monarchy, because they would have excluded a Popish Successor, and provided for the Security of the Religi­on and Lives of all Protestants: They have caused Lords and Commoners to be for a long time kept in Prisons, and suborned Witnesses to swear matters of Treason against them; endeavouring thereby, not only to cut off some who had eminently appeared in Parliament for our antient Laws, but through them to blast the Repute of Parliaments themselves, and to lessen the Peoples Confidence in those great Bulwarks of their Religion and Government.

The present purpose is to shew how well our Worthy fore-Fathers have pro­vided in our Law for the safety of our Lives, not only against all attempts of open Violence, by the severe punishment of Robbers, Murtherers, and the like, but the secret poysonous Arrows that flie in the dark, to destroy the Innocent by false Accusation and Perjuries. Our Law-makers foresaw both their dan­gers from the Malice, and Passion, [Page 7]that might cause some of private con­dition, to accuse others falsly in the Courts of Justice, and the great hazards of Worthy and Eminent Mens Lives, from the Malice, Emulation, and Ill De­signs of corrupt Ministers of State, or otherwise potent, who might commit the most odious of Murders in the form and course of Justice; either by cor­rupting of Judges, as dependant upon them for their Honour and great Reve­nue, or by Bribing and Hiring men of depraved Principles, and desperate Fortunes, to swear falsly against them; doubtless they had heard the Scriptures, and observed that the great men of the Jews sought out many to swear Treason and Blasphemy against Jesus Chr [...]: They had heard of Ahab's Courtiers and Judges, who, in the Course, a [...] Form of Justice, by false Witnesses, [...]thered Naboth, because he would no­submit his Properly to an Arbi [...]rary Power. Neither were they ignora [...] of the Antient Roman Histor [...]es [...] the pestilent, false Accusers that aboun [...] ­ed [Page 8]in the Reign of some of those Em­perours, under whom the greatest of crimes was to be virtuous: Therefore, as became good Legislators, they made as prudent Provision as perhaps any Country in the World enjoys, for equal and impartial Administration of Justice in all the concerns of the Peoples Lives; that every man, whether Lord or Com­moner, might be in safety, whilst they lived in due Obedience to the Laws.

For this purpose it is made a Funda­mental in our Government, that (unless it be by Parliament,See Ld Cookes Instit. 3d part, p. 40. no mans Life shall be touched for any crime whatsoever, save by the Judgment of at least 24 men; that is, 12 or more,See Mag. Chart. Cooke's 2 part of In­stit. p. 50, 51. to find the Bill of Indictment, whether he be Peer of the Realm, or Commoner, and 12 Peers, or above, if a Lord, if not 12 Com­moners to give the Judgment upon the general Issue of not guilty joyned; of these 24 the first 12 are called the Grand [Page 9]Inquest, or the Grand Jury, for the extent of their power, and in regard that their number must be more than 12, sometimes 23, or 25, never were less than 13, Twelve whereof at least must agree to every Indictment, or else 'tis no legal Verdict; If 11 of 21, or of 13, should agree to find a Bill of In­dictment, it were no Verdict. The other Twelve, in Commoners Cases, are called the Petit-Jury, and their nu­mber is ever Twelve; but the Jury for a Peer of the Realm may be more in number, though of like Authority. The Office and Power of these Juries is Judicial, they only are the Judges from whose Sentence the Indicted are to expect Life or Death; upon their Integrity and Understanding, the Lives of all that are brought into Judgment do ultimately depend; from their Ver­dict there lies no Appeal, by finding Guilty or not Guilty; they do compli­cately Resolve both Law, and Fact.

As it hath been the Law, so it hath allways been the Custom, and Practice [Page 8] [...] [Page 9] [...] [Page 10]of these Juries, upon all general Issues, pleaded in Cases Civil as well as Cri­minal, to judge both of the Law and Fact.See the Re­ports of the Lord Chief Justice Vaugh­an, p. 150.151. So it is said in the Report of the Lord Chief Justice Vaughan, in Bushel's Case, that these Juries determine the Law in all matters where Issue is joyned and tried, in the Principal Case, whether the Issue be about a Trespass or a Debt, or Disseizin in Assizes, or a Tort, or any such like, unless they should please to give a special Verdict, with an im­plicite faith in the Judgment of the Court, to which none can oblige them against their Wills.

These last 12 must be Men of equal condition with the Party Indicted, and are called his Peers, therefore if it be a Peer of the Realm, they must be all such, when Indicted at the Suit of the King; and in the case of Commoners, every Man of the 12 must agree to the Verdict, free­ly, without compulsion, fear, or menace, else it is no Verdict. Whether the case of [Page 11]a Peer be harder, I will not determine. Our Ancestors were careful that all men of the like condition, and quality, pre­sumed to be sensible of each others infir­mity, should mutually be Judges each of others lives, and alternately tast of Subjection and Rule; every man being equally liable to be Accused, or Indict­ed, and perhaps to be suddenly judged by the Party, of whom he is at present Judge, if he be found innocent. Whe­ther it be Lord or Commoner that is In­dicted, the Law intends (as near as may be) that his equals that Judge him, should be his Companions, known to him, and he to them, or at least his Neighbours or Dwellers near about the place where the Crime is supposed to have been com­mitted, to whom something of the Fact must probably be known; and though the Lords are not appointed to be of the Neighbourhood to the Indicted Lord, yet the Law supposes them to be Compa­nions, and personally well known each unto other, being presumed to be a small number (as they have anciently been) [Page 12]and to have met yearly, or oftner in Par­liament, as by Law they ought, besides their other meetings, as the hereditary Councillers of the Kings of England. If time hath altered the case of the Lords, as to the number, indifferency, and im­partiality of the Peers, it hath been, and may be worthy of the Parliaments con­sideration, and the greater duty is incum­bent upon Grand Juries to examine with the utmost diligence the Evidence against Peers, before they find a Bill of Indict­ment against any of them if in truth it may put their Lives in greater danger.

It is not designed at this time to un­dertake a discourse of Petit-Juries, but to consider the Nature and Power of Grand Inquests, and to shew how much the Reputation, the Fortunes, and the Lives of English Men depend upon the Consci­entious performance of their Duty.

It was absolutely necessary for the sup­port of the Government, and the safe­ty of every Mans life and interest, that some should be trusted to inquire after all such as by Treasons, Fellonies, or [Page 13]lesser Crimes, disturbed the peace, that they might be prosecuted, and brought to condign punishment; and it was no less needful for every mans quiet and safety, that the trust of such inquisitions should be put into the hands of Persons of understanding, and integrity, indif­ferent, and impartial, that might suffer no man to be falsely accused, or defamed, nor the lives of any to be put in jeopar­dy, by the malicious conspiracies of great or small, or the Perjuries of any profligate wretches: For these necessary, honest ends was the institution of Grand Juries.

Our Ancestors thoughtit not best to trust this great concern of their Lives and Interests in the Hands of any Officer of the King's, or in any Judges named by him, nor in any certain number of men during life, lest they should be awed or influenced by great men, corrupted by bribes, flatteries, or love of power, or become negligent, or partial to Friends and Relations, or pursue their own Quar­rels or private Revenges, or connive at [Page 14]the Conspiracies of others, and indict thereupon. But this trust of enquiring out, and Indicting all the Criminals in a County, is placed in men of the same County, more at least than Twelve of the most honest, and most sufficient for Knowledge, and Ability of Mind and Estate, to be from time to time at the Sessions and Assizes, and all other Com­missions of Oyer and Terminer, named and returned by the chief Sworn Officer of the County, the Sheriff, (who was al­so by express Law anciently chosen an­nually by the people of every County and trusted with the Execution of all Writ and Processes of the Law, and with the power of the County to suppress all Vi­olences, unlawful Routs, Riots, and Re­bellions. Yet our Laws left not the Ele­ction of these Grand Inquests absolutely to the Will of the Sheriffs, but have de­scribed in general their Qualifications, who shall Enquire and Indict either Lore or Commoner: They ought, by the old common Law, to be lawful Liedg [...] people, of ripe Age, not over aged or in [Page 15]firm, and of good Fame amongst their Neighbours, free from all reasonable suspi­cion of any design for himself or others, up­on the Estates or Lives of any suspected Criminals, or Quarrel, or Controversie with any of them: They ought to be indiffe­rent and impartial, even before they are admitted to be sworn, and of sufficient Understanding and Estate for so great a Trust. The ancient Law-Book, called, Briton, See Brit. p. 9, and 10. of great Authority, says, The She­riffs, Bailiffs ought to be sworn to return such as know best how to enquire, and discover all breaches of the Peace; and lest any should intrude themselves, or be ob­truded by others, they ought to be res turned by the Sheriff, without the De­nomination of any, except the Sheriffs Officers. And agreeable here­unto was the Statute of 11.See 11. Hen. 4. H. 4 in thnse words. Item, Because of late Inquests were taken at Westminster of persons named to the Justices, without due Return of the Sheriff, of which persons some were [Page 16]outlawed, &c. and some fled to Sanctu­ary for Treason and Felony, &c. by whom, as well many Offenders were indicted, as other lawful Liedge people of the King not guilty, by Conspiracy, Abetment, and false Imagination of o­thers, &c. against the course of the common Law, &c. It is therefore grant­ed, for the Ease and Quietness of the People, that the same Indictment, with all its Dependances, be void, and holden for none for ever; and that from hence­forth, no Indictment be made by any such persons, but by Inquest of the Kings Liedge People, in the manner as was used, &c. returned by the Sheriffs, &c. without any denomination to the She­riffs, &c. according to the Law of Eng­land, and if any Indictment be made hereafter, in any point to the contrary,See Cooke In­stit. 3d part, fol. 33.the same be also void, and holden for none for ever. See also the Statute of Westm 2d cap. 38. and Artic [...] super Cortas, ch. 9.

So careful have our Parliaments been [Page 17]that the Power of Grand Inquests might be placed in the hands of good and wor­thy men; that if one man of a Grand In­quest, though they be Twenty Three or more, should not be Liber & Legalis Homo, or such as the Law requires, and duly returned without denomination to the Sheriff; all the Indictments found by such a Grand Jury, and the proceedings upon them, are void and null. So it was adjudged in Scarlet's case.

I know too well, that the Wisdom and Care of our Ancestors, in this Instituti­on of Grand Juries, hath not been of late considered as it ought; nor the Laws concerning them duly observed; nor have the Gentlemen and other men of Estates, in the several Counties, dis­cerned how insensibly their legal Power and Jurisdiction in their Grand and Petit Juries is decayed, and much of the means to preserve their own Lives and Inte­rests, taken out of their hands. 'Tis a wonder that they were not more a­wakened with the attempt of the late Ed. Ch. Justice K. who would have usurp­ed [Page 18]a Lordly, Dictatorian power over the Grand Jury of Somersetshire, and com­manded them to sind a Bill of Indict­ment for murther, for which they saw no Evidence, and upon their refusal, he not only threatned the Jury, but assumed to himself an Arbitrary Power to sine them.

Here was a bold Battery made upon the ancient Fence of our Reputations, and Lives: If that Justice's Will had passed for Law, all the Gentlemen of the Grand Juries must have been the basest Vassals to the Judges, and have been penally obliged, Jurare in Verba Magistri, to have sworn to the Directi­ons or Dictates of the Judges: But thanks be to God, the late long Parlia­ment (though filled with Pensioners) could not bear such a bold Invasion of the English Liberty; but upon the Com­plaint of one Sir Hugh Windham, Fore­man of the said Jury, and a Member of that Parliament, the Commons brought the then Chief Justcie to their Bar, to acknowledge his fault, whereupon the Prosecution ceased.

The Trust and Power of Grand Juries, is, and ought to be, accounted amongst the greatest, and of most concern, next to the Legislative. The justice of the whole Kingdom, in criminal Cases, al­most wholly depending upon their Abi­lity and Integrity, in the due Execution of their Office; Besides, the Concern­ments of all Commoners, the Honour, Reputation, Estates, and Lives of all the Nobility of England, are so far submitted to their Censure, that they may bring them into question for Treason, or Felo­ny, at their Discretion; Their Verdict must be entred upon Record, against the greatest Lords, and process must legally go out against them thereupon, to im­prison them if they can be taken, or to outlaw them, as the Statutes direct; and if any Peer of the Realm, though inno­cent, should justly fear a Conspiracy a­gainst his Life, and think fit to withdraw, the direction of the Statutes, in proceed­ing to the Outlawry, being rightly pur­sued, he could never reverse the Outlaw­ry, as the Law now stands, save by Par­don, [Page 20]or Act of Parliament. Hence it appears, that in case a Grand Jury should be drawn to Indict a Noble Peer unjust­ly, either by means of their own weak­ness, or partiality, or a blind submission to the Direction or Opinion of Judges: One such failure of a Jury, may occasion the Ruine of any of the best or greatest Families in England: I mention this ex­tent of the Grand Juries Power over all the Nobility, only to shew their joint In­terest and Concern with the Commons of England in this ancient Institution.

The Grand Juries are trusted to be the principal means of preserving the Peace of the whole Kingdom, by the terrour of executing the penal Laws against Of­fenders, by their Wisdom, Diligence, and Faithfulness in making due Inquiries after all Breaches of the Peace, and bringing every one to answer for his crime, at the peril of his Life, Limb, and Estate; that every man, who lives within the Law, may sleep securely in his own House.

'Tis committed to their Charge and [Page 21]Trust, to take care of bringing Capital Offenders to pay their Lives to Justice, and lesser Criminals to other punishments, according to their several demerits. The Courts, or Judges, or Commissioners of Oyer and Terminer, and of Gaol De­livery, are to receive only from the Grand Inquest, all Capital matters what­soever, to be put in Issue, tried and judg­ed before them by the Petit Juries. The whole Stream of Justice, in such cases, either runs freely, or is stopped and di­sturbed as the Grand Inquests do their Duties, either faithfully and prudently, or neglect or omit them.

And as one part of their Duty is to In­dict Offenders, so another part is to pro­tect the Innocent, in their Reputations, Lives and Interests, from false Accusers, and malicious Conspirators: They are to search out the Truth of such Informa­tions as come before them, and to reject the Indictment if it be not sufficiently proved, and farther, if they have reaso­nable suspicion of Malice, or wicked De­signs against any mans Life or Estate by [Page 22]such as offer a Bill of Indictment; the Laws of God and of the Kingdom, bind them to use all possible means to discover the Villany; and if it appear to them (whereof they are the legal Judges) to be a Conspiracy, or malicious Combination against the Accused, they are bound by the highest Obligations upon Men and Christians, not only to reject such a Bill of Indictment, but to Indict forth with all the Conspirators with their Abettors and Associates.

Doubtless there hath been Pride and Covetousness, Malice and desire of Re­venge in all Ages, from whence have sprung false Accusations and Conspiracies; but no Age before us ever hatched such Villanies, as our Popish Faction have con­trived against our Religion, Lives, and Liberties. No History assords an Exam­ple of such Forgeries, Perjuries, Subor­nations, and Combinations of infamous Wretches, as have been lately discovered amongst them, to defame Loyal, Inno­cent Protestants, and to shed their guilt­less Blood in the Form and Course of Ju­stice, [Page 23]and to make the Kings most faithful Subjects appear to be the vilest Trai­tors unto him. In this our miserable State, Grand Juries are our only Security, in as much as our Lives cannot be drawn into jeoperdy, by all the malicious crasts of the Devil, unless such a number of our honest Country Men shall be satisfied in the truth of the Accusations. For pre­vention of such Plotters of wickedness as now abound, was that Sta­tute made in the 42 of E. 3.3.See the Stat. 42 E. 3.3. in these words: To es­chew the mischiefs and damage done to divers of the Commons by False Accu­sers, which oftentimes have made the Accusations more for Revenge and sin­gular Benefit, than for the profit of the King, or of his People; which accused persons, some have been taken, and sometimes caused to come before the King's Council by Writ, and otherwise, upon grievous pain, against the Law; It is assented and accorded for the good Government of the Commons, That no man be put to answer without pre­sentment [Page 24]before Justices, or matter of Record, &c. according to the old Law of the Land, and if any thing be done to the contrary, it shall be void in Law, &c. And (saith the Statute of the 25 of E. 3.4.) None shall be taken by Pe­tition, or Suggestion made to the King or to his Council, unless it be by In­dictment, or Presentment of good and lawful People, of the same Neighbour­hood where such deeds be done, &c. That is to say, by a Grand Jury.

All our Lives are thus by Law trusted to the Care of our Grand Inquests, that none may be put to answer for their lives, unless they Indict them. If a causless Indictment of any man should carelesly pass from them, his guiltless Blood, or what Prejudice soever the Ac­cused should thereby suffer must rest up­on them, who by breach of their Trust were the occasions of it; their fault can­not be excused by the prosecution of an Attorney, or Solicitor General, or any other Accuser, if it were in their power to be more truly informed in the Case. [Page 25]Whosoever prevents not an Evil when he may, consents to it.

Now to oblige these Juries to the more conscientious care, to Indict all that shall appear to them Criminals, and to save every Innocent, if it may be, from unjust Vexation, and danger, by Malice and Conspiracy, our Ancestors appointed an Oath to be imposed upon them, which cannot be altered, except by Act of Parliament: Therefore every Grand Jury Man is sworn, as the Fore­man, in the words following, viz.

You shall diligently enquire, and true Presentment make of all such Articles, matters and things as shall be given you in charge. And of all other matters and things as shall come to your own know­ledge, touching this present service. The King's Council, your Fellows, and your own, you shall keep secret: You shall pre­sent no person for Hatred or Malice; nei­ther shall you leave any one unpresented for Favour, or Affection, for Love, or Gain, or any hopes thereof; but in all things you shall present the Truth, the [Page 26]whole Truth, and nothing but the Tru [...] to the best of your knowledge; so h [...] you God. The Tenor of the Oath plain, saving in those words, All su [...] matters and things as shall be given [...] in charge: But whensoever a general Commission of Over and Terminer is­sued, all Capital Offences are alwaies [...] principal matters given in charge to [...] Grand Jury, which is enough for [...] present discourse o [...] their duty: He [...] then it evidently appears, that eve [...] Grand Jury is bound to enquire d [...] gently after the Truth of every thi [...] for which they shall Indict or Present [...] ny Man: They are not only bound [...] by the Eternal Law of loving the Neighbour, to be as tender of the [...] and good Name of every man, as of the own, and therefore to take heed to the Truth in Accusing or Indicting any man but their express Oath binds them to [...] diligent in their Enquiries, that is, [...] receive no suggestion of any Crime [...] Truth, without examining all the C [...] ­cumstances about it, that fall within the [Page 27]knowledge; they ought to consider the first Informers, and enquire as far as they can into their Aims and Pretences in their prosecutions; if Revenge or Gain should appear to be their ends, there ought to be the greater suspition of the Truth of their Accusations; the Law intending all Indictments to be for the benefit of the King and of his People, as appears by the Stat. of 42 E. 3.3. Next, the Jury are bound to enquire into the matters themselves, whereof any man is accused, as to the time, place, and all other circumstances of the Fact alledged. There have been false In­formers that have suggested things im­possible; for instance, That Thirty Thou­sand Men in Arms were kept in readiness for an Exploit, in a secret place, as if they could have been hid in a Chamber, or a Cabinet. The Jury ought also to enquire after the Witnesses, their condi­tion and quality, their fame and repu­tation, their means of subsistence, and the occasion whereby the Facts whereof they bear witness came to their know­ledge. [Page 28]Sometimes persons of debauche [...] lives and low condition, have depose [...] Discourses, and Treasonable Council against Persons of Honour and Virtue so unlikely to come to their Knowledge (if such things had been) that their pre­tence of being privy to them, was strong Evidence that their whole story was false and feigned. It is also agreea­ble unto our ancient Law and Practice and of great Consequence in cases [...] Treason or Felony, that the Jury enquire after the time, when first the matters deposed came to the Witnesses know­ledge, and whether they pursued the directions of the Law in the immediat [...] Discovery and pursuit of the Traitor o [...] Felon, by Hue and Cry, or otherwise, o [...] how long they concealed the same; their Testimony being of little or no value, i [...] they have made themselves partake [...] of the Crime by their voluntary Conceal­ment.

Neither may the Jury lawfully omi [...] to enquire concerning the Parties Accu­sed, of their Quality, Reputation, and [Page 29]the manner of their Conversation, with many other Circumstances; from whence they may be greatly helped to make right Inferences of the Falshood, or Truth of the Crimes whereof any man shall be accused. The Jury ought to be ignorant of nothing whereof they can enquire, or be informed, that may in their understandings enable them to make a true Presentment or Indictment of the matters before them.

When a Grand Jury is sworn to en­quire diligently after all Treasons, &c. 'tis natural and necessary to their business, to think of whom they should enquire; and 'tis plainly and easily resolved, that they ought to enquire of every man that can or will inform them; and if any kind of Treason be suggested to them, to have been done by any man, or number of men, their duty is the same in that par­ticular, as it was in the general; that is, to seek diligently to find the truth. 'Tis certainly inconsistent with their Oaths, to shut their Ears against any lawful man, that can tell them any thing relating [Page 30]unto a crime in question before them. No man will believe, nor can they them­selves think that they desire to find an [...] present the truth of a fact, if they sha [...] refuse to hear any man, who shall pre­tend such knowledge of it, or such ma­terial Circumstances, as may be use­ful to discover it; whether that which shall be said by the pretenders, will an­swer the Juries expectations, must re [...] in their Judgments, when they have hea [...] them. It seems therefore from the word of the Oath, that there is no bound or li­mit set (save their own understanding or Conscience) to restrain them to and number or sort of persons of whom they are bound to enquire; they ought fir [...] and principally to enquire of one another mutually, what knowledge each of the [...] hath of any matters in question before them; the Law presumes that some at lea [...] of so many sufficient men of a County must know or have heard of all notable things done there against the public peace; for that end the Juries are by the Law to be of the Neighborhood to the [Page 31]place where the crimes are committed. If the parties, and the facts whereof they are accused be known to the Jury, or any of them, their own knowledge will sup­ply the room of many Witnesses. Next they ought to enquire of all such Witnes­ses as the Prosecutors will produce a­gainst the Accused, they are bound to ex­amine all fully and prudently to the best of their skill; every Jury Man ought to ask such questions (by the Fore-man at least) as he thinks necessary to resolve any doubt that may arise in him, either about the fact, or the Witnesses, or otherwise; if the Jury be then doubtful, they ought to receive all such further Testimony as shall be offered them, and to send for such as any of them do think able to give Testimony in the case depending.

If it be asked how, or in what man­ner, the Juries shall enquire; the answer is ready, according to the best of their un­derstandings. They only, not the Judges, are sworn to search diligently to find out all Treasons, &c. within their charge, and they must and ought to use their own dis­cretion [Page 32]in the way and manner of their Enquiry: No directions can legally be imposed upon them by any Court or Judges; An honest Jury wil [...] thankfully accept good Advice from Judges, as they are Assistants; but they are bound by their Oaths to present the Truth, the whole Truth, and nothing but the Truth, to the best of their own not the Judges, knowledge: Neither ca [...] they, without breach of that Oath, re­sign their Consciences, or blindly sub­mit to the dictates of others; and there­fore ought to receive, or reject such Ad­vices, as they judge them good or bad.

If the Jury suspect a Combination o [...] Witnesses against any mans Life, (which perhaps the Judges do not discern) and think it needful to examine them private­ly and separately, the discretion of the Juries in such a case, is their only, best and lawful guide, though the example of all Ages and Countries, in examining suspected Witnesses privately and sepa­rately, may be a good direction to them.

Nothing can be more plain and ex­press, than the words of the Oath are to this purpose. The Jurors need not search the Law Books, nor tumble over heaps of old Records for the explanation of them. Our greatest Lawyers may from hence learn more certainly our ancient Law in this case, than from all the Books in their Stueids. The Language where­in the Oath is penned, is known and un­derstood by every man, and the words in it have the same signification, as they have wheresoever else they are used. The Judges (without assuming to themselves a Legislative Power) cannot put a new sense upon them, other than according to their genuine, common meaning. They cannot Magisterially impose their Opinions upon the Jury, and make them forsake the direct words of their Oath, to pursue their glosses. The Grand In­quest are bound to observe alike strictly every part of their Oath; and to use all just and proper ways which may enable them fully to perform it; otherwise it were to say, that after men had sworn [Page 34]to enquire diligently after the Truth, ac­cording to the best of their Knowledge, they were bound to forsake all the natu­ral and proper means which their Under­standings suggest for the Discovery of it, if it be commanded by the Judges.

And therefore if they are jealous of a Combination of the Witnesses, or that Cor­ruption and Subornation hath been made use of, they cannot be restrained from asking all such Questions, as may con­duce to the sifting out of the Truth, nor from examining the Witnesses privately and separately;Fort. D. Land. Leg. Ang. cap. 26. lest (as Fortescue says) The saying of one should provoke or in­struct others to say the like.

Nor are the Jury tied up to enquire on­ly of such Crimes as the Judges shall think fit to give them directly in charge, much less of such Bills only as shall be of­fered to them; but their Enquiry ought to extend to All other Matters and Things which shall come to their Knowledge, touch­ing the present Service. If they have ground to suspect that any Accusation be­fore [Page 35]them proceeds from a Conspiracy, they are obliged by their Oaths to turn the Enquiry that way, and if they find cause, not only to Reject the Bills offered upon such Testimony, but to indict such Witnesses, and all the Abettors of their Villany.

They are carefully to examine what sort of men the Witnesses are; for 'tis a Rule in all Laws, that Turpes à Tribunalibus arcentur, Vile Persons ought to be re­jected by Courts of Justice. Such Wit­nesses would destroy Justice instead of promoting it. And the Grand Jury are to take care of admitting such: They may and ought (if they have no certain knowledge of them) to ask the Witnesses themselves of their Condition, and way of living, and all other Questions, which may best inform them what sort of men they are. 'Tis true, it may be lawful for the Witnesses, in many cases, to refuse to give answer to some demands which the Jury may make; as where it would be to accuse themselves of Crimes: but yet that very refusal, or avoiding to give di­rect [Page 36]Answers, may be of great use to the Jury, whose only business is to find out the Truth; and who will be in a good measure enabled to judge of the Credit of such Witnesses, as dare not clear themselves of Crimes, which com­mon Fame, or the knowledge of some of the Grand Inquest has charged them with?

If the Witnesses which come before the Grand Jury upon an Indictment for Treason, should discover upon their ex­amination, that they Concealed it a long ti [...]e without just Impediment; The presumption of Law will be strong against them, that no sense of honesty [...] of their duty brought them at last to reveal it.

It appears by Bracton, that ancient Writer of our Laws,Brac. L. 3. c. 3. [...] mo­rari d [...]bet, &c. n [...] d [...]bet ad a­liqua neg [...]ia, qua [...]is urgen­tissima, so con­vertere, qui [...] vix permittitur ei quòd retro aspiciat, &c. Si post inter­vallum accusa­re velit, non e­rit de Jure a [...] ­diendus. that in Cases of Treason the Juries were in his days ad­vised (as now they ought) to be so severe in their En­quiry within what time the Witnesses discovered the Treason after it came to their [Page 37]knowledge: That if it were not evident that they reveal­ed it with as much expediti­on as was well possible for them, they were not by Law no be heard as Witnesses; It was scarce permitted them (saith he) to look back in their going; such ought to be their speed to make known the Treason. Or if in any case they be otherwise o­penly flagitious, though they be not le­gally infamous, or if they are men of de­sperate Fortunes, so that the temptation of want is manifestly strong upon them, and the restraint of Conscience can be supposed to be little or none at all; what ever they say is (at least) to be heard with extraordinary caution, if not total­ly rejected. In Scotland such a degree of Poverty,S. G. Mack [...] ­zy, Crim. Law, lib. 26.3. that a Witness cannot swear him­self to be worth Ten Pounds, is sufficient to lay him aside wholly in these high Concernments of Criminal Cases: And in some other Kingdoms [Page 38]to be a loose liver is an Objection of the same force, against any produced for Witnesses.

And for the better discovery of the Truth of any fact in question, the Cre­dit of the Witnesses, and the value of the Testimonies; it is the Duty of the Grand Inquest to be well informed con­cerning the Parties indicted; of their usual Residence, their Estates and man­ner of living, their Companions and Friends, with whom they are accustom­ed to converse, such knowledge being necessary to make a good judgment up­on most accusations; but most of all in suspitions, or Indictments of secret Treasons, or Treasonable Words, where the accusers can be of no credit, if it be altogether incredible that such things as they testifie should come to their knowledge.

Sometimes the quality of the accused person may set him at such a distance from the Witnesses, that he cannot be supposed to have conversed with them familiarly, if his Wisdom and Conduct [Page 39]has been always such, that it is not cre­dible he would trust men so inconside­rable, or meer strangers to him, and such as are wholly uncapable to assist in the Design which they pretend to dis­cover.

Can the Grand Inquest believe such Testimony to be of any value? Or can they avoid suspecting Malice, Combi­nation, and Subornation in such a case? or can they shew themselves to be just, and conscientious in their Duty, if they do not suspend their Verdict until fur­ther Enquiry, and write Ignoramus up­on the Bill?

It is undoubtedly Law which we find reported in Stiles. Stiles Re­por. 11. That Though there be Witnesses who prove the Bill, yet the Grand Inquest is not bound to find it, if they see cause to the contrary.

Now to make their Enquiry more instrumental and advantageous to the Execution of Justice, they are enjoined by their Oath to keep secret the King's Counsel, their fellows, and their own. [Page 40]Perhaps 'tis not sufficiently understood or considered, what duty is enjoyned to every man of a Grand Inquest by this clause of their Oath, being seldom (if ever) explained to them in the general charge of the Judges at Sessions or Assi­ses: But it is necessary that they should apprehend what Counsel of the King is trusted with them. Certainly there is or ought to be much more of it commu­nicated to them, than is commonly thought, and in things of the greatest consequence. To them ought to be committed in the several Counties where any Prosecutions are begun, the first Informations and suspitions of all Treasons, Murders, Felonies, Conspi­racies, and other Crimes, which may subvert the Government, endanger, or hurt the King, or destroy the Lives or Estates of the innocent People, or any way disquiet or disturb the common Peace. Our Law intends the Councils of the King to be continually upon the protection and security of the People, and prevention of all their mischiefs [Page 41]and dangers by wicked, lawless, and injurious men And in order thereunto to be advising how to right his wrong­ed Subjects in general, if the publick safety be hazarded by Treasons of any kind; or their Relations snatcht from them by Murderers, or any way destroy­ed by malicious Conspirators in form of Law; or their Estates taken away by Robbery and Thieves, or the Peace bro­ken. And for these ends to bring to exemplary Justice all offenders, to de­terr others from the like Wickedness. And until these Counsels of the King come to the Grand Jury, he can bring no such Criminals to judgment, or to an­swer to the Accusations and Suggestions against them. Hence it becomes una­voidably necessary to reveal to the Grand Juries all that hath been discover­ed to the King or any of his Ministers. Judges, or Justices, concerning any Treasons, or other Offences, whereof any man is accused. And where suspi­cion hath caused any to be imprisoned, all the grounds of their suspitions ought [Page 42]to be opened, concerning the Principals and the Accessories, as well before as after the fact, all the circumstances and presumptions that may induce a belief of their Guilt, and all notices what­soever, which may enable the Jury to make a more exact and effectual Enqui­ry, and to present the whole Truth. They themselves will not only be of­fenders against God by reason of their Oath, but subject to legal punishments, if they knowingly conceal any Crimi­nals, and leave them unpresented; and none can be innocent, who shall conceal from them any thing that may help and assist them in their Duty.

The first notices of Crimes or suspici­ons of the Criminals by whomsoever brought in, and the intentions of search­ing them out, and prosecuting them le­gally, are called the King's Counsel, because the principal care of executing Justice is entrusted to him, and they are to be prosecuted at his Suit, and in his name; and such proceedings are called Pleas of the Crown. From hence [Page 43]may be easily concluded, that the Kings Counsel, which, by the Oath of the Grand Inquest is to be kept secret, in­cludeth all the persons offered to them to be indicted, and all the matters brought in Evidence before them, all circumstances whatsoever whereof they are informed, which may any way con­duce to the discovery of Offences; all intimations given them of Abettors and Encouragers of Treasons, Felonies, or Perjuries and Conspiracies, or of the Receivers, Harbourers, Nourish­ers, and Concealers of such Criminals.

Likewise the Oath which enjoins the Counsel of their Fellows, and their own to be kept, implies that they shall not reveal any of their personal knowledge concerning Offences or Offenders; nor their intentions to indict any man there­upon; nor any of the Proposals and Advices amongst them of ways to en­quire into the truth of any matter be­fore them, either about the Crimes themselves, or the accusers and Wit­nesses, or the party accused, nor the [Page 44]debates thereupon amongst themselves, nor the diversity of opinionins any case before them.

Certainly this Duty of secresie con­cerning the Kings Counsel was imposed upon the Grand Inquest with great rea­son, in order to the publick good. It was intended that they should have all the advantages which the several cases will afford, to make effectual Enquiries after Criminals to offer them to Justice. If packs of Thieves, private Murderers, secret Traitors, or Conspirators and Suborners, can get Intelligence of all that is known of their Villanies, all the parties concerned may consult together, how to hide their crimes, and prevent such further Enquiries as can be made after them; they may form Sham-Sto­ries by agreement, that may have ap­pearance of truth to mislead and delude the Jury in their Examination, and a­void contradicting each other, they may remove or conceal all such things as might occasion a fuller Discovery of their Crimes, or become circumstan­tial [Page 45]Evidences against any of their Asso­ciates, if one or more of them be known or taken, or is to be indicted. There hath been Confederates in high Crimes, who have secured themselves from the Justice done upon some of their Compa­nions, by their confident appearance and denial of the Fact, having been em­boldened therein from their knowledge of all the grounds of suspition, and all the Witnesses examined about them and the matter of their Testimonies. 'Tis too well known what helps of discover­ing the whole Popish Plot were lost through the want of keeping secret the Kings Counsel therein, before the mat­ter was brought either to the Parlia­ment, or to any Grand Inquest; and thereby they were disabled for the ef­fectual Execution of their Offices, and could never search into the Bowels of that dangerous Treason in any County. But our Law having placed this great trust of Enquiry in the prudence and faithfulness of the Grand Inquest, was careful that they might not disable them­selves [Page 46]for their own trust, by the indis­cretion or worser fault of any of their own number, in revealing the Kings Counsel or their own.

And as it was intended hereby to pre­serve unto them all reasonable helps for their bringing to light the hidden mis­chiefs that might disturb the common Peace, so it was necessary to prevent the Flight of Criminals; if the Evidence, against one that is accused should be publickly known, whether it should be sufficient for an Indictment of him, and how far it extends to others; his Con­federates and Accomplices might easily have notice of their danger, and take opportunity to escape from Justice.

Yet the reason will be still more ma­nifest for keeping secret the accusations and the Evidence by the Grand Inquest, if it be well considered, how useful and necessary it is for discovering truth in the Examinations of Witnesses in many, if not in most cases that may come be­fore them; when if by this Privacy Wit­nesses may be examined in such manner [Page 47]and Order, as prudence and occasion direct; and no one of them be suffered to know who hath been examined be­fore him, nor what questions have been asked him, nor what answers he hath given, it may probably be found out whether a Witness hath been biassed in his Testimony by Malice or Revenge, or the fear or favour of men in Power, or the love or hopes of Lucre and gain in present or future, or Promises of impunity for some enormous Crime.

The simplicity of Truth in a Witness may appear by the natural plainness, easiness, and directness of his Answers to whatsoever is propounded to him, by the equality of his Temper, and suit­ableness of his Answers to questions of several kinds, and perhaps to some that may be asked for Trial sake only of his uprightness in other matters. And the Falsness, Malice or ill Design of ano­ther, may be justly suspected from his studiousness and difficulty in answering, his Artifice and cunning in what he re­lates, not agreeable to his way of breed­ing [Page 48]and parts, his reserved, indirect, and evasive Replies to easie Questions, his pretences of doubtfulness and want of remembring things of such short dates or such Notoriety, that 'tis not credi­ble he could be ignorant or forgetful of them. In this manner the Truth may be evidenced to the satisfaction of the Jurors Consciences, by the very de­meanor of the Witnesses in their private Examinations, in as much as the great­est certainty doth often arise from the careful observation and comparing of such minute matters; of which a di­stinct account is not possible to be giver to a Court: And for that Reason (a­mong others) the Juries are made the only absolute Judges of their Evi­dence.

Yet further their private Examinati­ons may discover truth out of some dis­agreement of the Witnesses, when sepa­rately interrogated, and every of the Grand Inquest ask them Questions for his own satisfaction about the matters which have come to his particular know­ledge, [Page 49]and this freely without Awe or Control of Judges, or distrust of his own parts, or fear to be checked for asking impertinent questions.

Conspiracies against the lives of the Innocent in a form of Justice, have been frequently detected by such secret and separate Examination of Witnesses. The Story of Susanna is famous; that two of their Elders and Judges of great Credit & Authority, testified in the open Assembly a malicious invention against her, with all the solemnity used in Ca­pital Cases and Sentences of Death pas­sed upon her, and was ready to be ex­ecuted, had not wise Daniel cryed out in her behalf: Are ye such Fools, O Is­raelites, that without Examination or Knowledge of the Truth, Note that the Testimony given in the Assembly without separa­ting the Wit­nesses, & trying the Truth by circumstances, was esteemed ye [...]ave condemned a Daughter [...]f Israel? Return (said he) again to judgment, and put [...]hese two one far from ano­ther, and I will examine them: And being asked se­parately (though in publick [Page 50]the testimony having been so given before) concerning the place of the fact then in question,No Examinati­on or knowledg of the Truth. they had not agre­ed upon that Circumstance as they had upon their Story; and so their falshood became manifest, one saying the Adul­tery was committed under a Lentisk Tree, the other, it was under a Prime Tree: And upon that conviction of the false Witnesses, the whole Assembly cried with a loud voice, and praised God. These false Witnesses were put to death as their Law required.

We have also a late Instance of the usefulness of private and separate Exa­minations, in the case of the Lord How­ard, against whom the Attorney Ge­neral prosecuted an Accusation of Trea­son, the last Midsummer Term, before the Grand Inquest for Middlesex. Mrs. Fitz-Harris, and Teresa Peacock her Maid, swore words of Treason against him positively, and agreed in every point whilst they were together: But by the prudence of the Inquest, being [Page 51]put asunder, and the Mistriss asked how her Maid came to be admitted to the knowledge of such Matters; she had an Evasion ready, pretending her Maid to have craftily harkened behind a Wain­scot Door, and so heard the Treason. But the Maid not suspecting what her Mistriss had said, continued her first Story, that she heard the Treason from the Lord Howard himself, and was as much trusted by him as her Mistriss: By this Circumstance the falshood and Perjury (which Mrs. Fitz-Harris hath since acknowledged) was discovered, and the snare for the Life of the injured Lord was broken, as is manifest by his liberty now obtained by Law.

Witnesses may come prepared, and tell plausible Stories in open Court, if they know from the Prosecutor to what they must answer; and have agreed and ac­quainted each other with the tales they will tell, and have resolved to be careful, that all their answers to cross Interroga­tories, may be conformable to their first stories: And if these relate only to [Page 52]words spoken at several times in private to distinct Witnesses, in such a case, Evidence, if given in open Court, may seem to be very strong against the per­son accused, though there be nothing of truth in it. But if such Witnesses were privately and separately examined by the Grand Inquest, as the Law re­quires, and were to answer only such questions as they thought fit, and in such order as was best in their judgments, and most natural to find out the Truth of the Accusation, so that the Witnesses could not guess what they should be asked first, or last, nor one conjecture what the other had said, (which they are certain of when they know beforehand what the Prosecutor will ask in Court of every of them, and what they have resolved to answer) if the Inquest should put them out of their Road, and then compare all their se­veral answers together, they might pos­sibly discern marks enough of falshood, to shew that their Testimonies ought not to be depended upon, where life is in question.

By what is now said the reasonable­ness of this Institution of Secrecy may be discerned in respect to the discovery of Truth, and the protection of the In­nocent from malicious Combinations and Perjuries. Yet the same Secrecy of the Kings Council is no less necessary to reserve the guilty for punishment; when the Evidence against any party accused is not manifest and full, it may be kept without prejudice under Secrecy until further Enquiry; and if sufficient proof can afterwards be made of the Offence, an Indictment may be found by a Grand Inquest, and the party brought to an­swer it: But when the Examinations are in open Court, or the Kings Coun­cils any other way divulged, and the Evidence is weak and less than the Law requires, 'tis not probable that it will be more or stronger, and should an In­dictment be found, and the party tried by a Petit Jury, whilst the Evidence is not full, they must and ought to acquit him, and then the further prosecution for the same Offence is for ever barred, [Page 54]though his guilt should afterward be manifest, and confessed by himself.

From hence may certainly be conclu­ded that Secrecy in the Examinations and Enquiries of Gr. Juries is in all re­spects for the Interest and advantage of the King. If he be concerned to have secret Treasons, Felonies, and all other enormities brought to light, and that none of the Offenders should escape Ju­stice; if the gain of their Forfeitures be thought his interest (which God forbid) then the first notices of all dangerous crimes, and wicked confederacies ought to be secretly and prudently pursued and searcht into by the Grand Inquest: The accusers and Witnesses ought not to publish in a Court before a multitude what they pretend to know in such ca­ses, until the discretion of so many ho­nest men of the neighbourhood, hath first determined whether their testimo­ny will amount to so good and full Evi­dence that it may be made publick with safety to the King and People in order to Justice. Else they are obliged by Oath [Page 55]to lock up in their own breasts all the circumstances and presumptions of crimes, until they, or such as shall suc­ceed in the same trust, shall have dis­covered (as they believe) Evidence e­nough to convict the accused, and then, and not before, they are to accuse the party upon Record, by finding the Bills, (as it's usually called.) But when Bills are offered without fatisfactory E­vidence, and they neither know nor can learn any more, they ought for the King's sake, to indorse Ignoramus upon them, least his Honour and Justice be stained by causing or permitting such prosecution of his People in his own name, and at his suit, as shall appear upon their Trial and Acquittal to have been frivolous, or else malicious designs upon their Lives and Fortunes.

If it should be said, that whatsoever reasons there are for this Oath of Secre­cy; yet it cannot deprive the King of the benefit of having the Evidence made publick, if he desires it, and that the Grand Jury do not break their Oaths [Page 56]when the King or the Prosecutor for him will have it so: 'Tis not hard to shew that such Notions have no foun­dation in Law or Reason, and seem to come from men who have not well stu­died the first principles of the English Government or of true Religion.

Whosoever hath learnt that the Kings of England were ordained for the good Government of the Kingdom in the Execution of the Laws, must needs know, that the King cannot lawfully seek any other benefit in judicial pro­ceedings, than that common Right and Justice be done to the People accord­ing to their Laws and Customs. Their Safety and Prosperity are to be the ob­jects of His continual Care and Study, that being highest concern. The great­ness and Honour of a Prince consists in the Virtue, Multitude, Wealth and Prowess of his People; and his great­est Glory is, by the excellence of his Government so to have encouraged Vir­tue and Piety, that few or no Criminals are to be found in his Dominions. Those [Page 57]who have made this their principal aim, have in some places so well succeeded, as to introduce such a Discipline and rectitude of manners, as rendred every man a Law unto himself. As it is re­ported in the History of Peru, Gar. de la Veg. Hist. de los In­cas. that though the Laws were so severe as to make very small Crimes capital, yet it often fell out, that not one man was put to Death in a year, within the whole compass of that vast Empire.

The King's only benefits in finding out and punishing Offenders by Courts of Justice are the preservation and Sup­port of the Government, the protecti­on of the Innocent, revenging their wrongs, and preventing further mis­chiefs by the terrors of exemplary pu­nishments.

The King is the head of Justice in the esteem of our Laws, and the whole Kingdom is to expect right to be done them in his several Courts instituted by Law for that purpose. Therefore Writs issue out in his name in all cases where [Page 58]relief is sought by the Subjects: and the wrongs done to the Lives or Limbs of the People are said to be done against the Peace of the King, his Crown and Dignity, reckoning it a dishonour to him and his Government, that Subjects should not, whilst they live within the Law, enjoy Peace and Security. It ought to be taken for a scandal upon the King, when he is represented in a Court of Justice as if he were partially con­cerned, or rather inclined to desire, that a party accused should be found guilty, than that he should be declared innocent, if he be so in Truth. Doubt­less the King ought to wish in all En­quiries made after Treasons, Felonies, &c. that there were none to be found in his Kingdom; and that whosoever is accused, might be able to answer so well and truly for himself, as to shew the Accusation to be erroneous or false, and to be acquitted of it. Something of this appears in the common Custom of England, that the Clerks of the Kings Courts of Justice, when any man hath [Page 59]pleaded not guilty to an Indictment, prays forthwith that God would send him a good deliverance.

The Destruction of every Criminal [...]s a loss to a Prince, and ought to be grievous to him; in the common regard of humanity, and the more particular Relation of his Office, and the name of Father. The Kings Interest and Ho­nour is more concerned in the Protecti­on of the Innocent, than in the punish­ment of the Guilty. This maxime can never run them into excesses; for it hath ever been lookt upon as a mark of great Wisdom and Virtue in some Prin­ces and States, upon several occasions [...]o destroy all Evidences against Delin­quents; and nothing is more usual than [...]o compose the most dangerous distem­pers of Nations by Acts of general Am­nesty, which were utterly unjust, if it [...]t were as great a crime to suffer the Guilty to escape, as to destroy the In­nocent. We do not only find those Princes represented in History under o­dious Characters, who have basely [Page 60]murthered the Innocent. but such as by their Spies and Informers were too in­quisitive after the guilty; whereas none was ever blamed for Clemency, or for being too gentle Interpreters of the Laws. Tho. Trajan was an excellent Prince, endowed with all hereical Vir­tues, yet the most eloquent Writers, and his best friends found nothing more to be praised in his Government, than that in his time, all men might think what they plea­sed,Tacit. lib. 1. Hist. and every man speak what he thought, and he had no bet­ter way of distinguishing himself from his wicked Predecessors, than by hang­ing up the Spies and Informers, whom they had employed for the discovery of crimes. But if the punishment of Of­fenders were as universally necessary as the Protection of the Innocent, he were as much to be abhorred as Nero; and that clemency which is so highly prais­ed, were to be lookt upon as the worst of vices, and those who have hitherto been taken for the best of Princes, were [Page 61]altogether as detestable as the worst.

Moreover all humane Laws were or­dained for the preservation of the Inno­cent, and for their sakes only are pu­nishments inflicted; that those of our own Country do solely regard this, was well understood by Fortes­ [...]ue, who saith,Fort. de Laud. Leg. Ang. ch. 27. Indeed I could [...]ather wish Twenty Evildo­ers to escape death through [...]itty, than one man to be unjustly con­demned. Such Blood hath cried to Hea­ven for Vengeance against Families and Kingdoms, and their utter destruction hath ensued. If a Criminal should be acquitted by too great lenity, caution, or otherwise, he may be reserved for future Justice from Man or God, if he doth not repent; but 'tis impossible that satisfaction or reparation should be made for innocent Bloodshed in the forms of Justice.

Without all question the Kings only just Interest in the Evidence given a­gainst the party accused, and in the manner of taking it, is to have the truth [Page 62]made manifest, that Justice may there upon be done impartially: And if accu­sations may be first examined in secret more strictly and exactly, to prevent Fraud and Perjury than is possible to be done in open Court, (as hath before appeared) then 'tis for the Kings bene­fit to have it so. And nothing done in, or by a Court about the Trial of the ac­cused, is for the King, (in the sense of our Law) unless it some way conduce to justice in the case. The Witnesses which the Prosecutor brings, are no fur­ther for the King, than they tell the truth and the whole Truth impartially; and by whomsoever any others may be called, upon the Enquiry, or the Trial to be examined, if they sincerely deliver the truth of the matters in question, they are therein the Kings Witnesses, though the accused be acquitted by rea­son of their Testimonies. If such as are offered by the Attorney General to prove Treason against any man, shall be found to swear falsly, maliciously, or for Reward or Promises, though [Page 63]they depose positively facts of Treason against the accused, yet they are truly and properly Witnesses against the King, by endeavouring to prevent Ju­stice, and destroy his Subjects: Their Malice and Villany being confessed or proved, the Kings Attorny ought (ex Officio) to prosecute them in the Kings name, and at his suit, for their Offences against him in such Depositions pretend­ed to have been for him: and the legal form of the Indictment ought to be for their swearing falsly and maliciously a­gainst the Peace of the King, his Crown and Dignity. The Prosecutors them­selves, notwithstanding their big words, and assuming to themselves, to be for the King, if their prosecution shall be proved to be malicious, or by Conspira­cy against the Life or Fortune of the ac­cused, they are therein against the King, and ought to be indicted at the King's Suit, for such Prosecutions done against his Crown and Dignity. And if an At­torney General should be found know­ingly guilty of abetting such a Conspira­cy, [Page 64]his Office could not excuse or legal­ly exempt him from suffering the villa­nous judgment to the destruction of him and his Family. 'Tis esteemed in the Law one of the most odious Offences a­gainst the King, to attempt in his name to destroy the Innocent, for whose Pro­tection he himself was ordained. Qu. Elizabeth had the true sense of our Law,Co. Inst. 3d part, p. 79. when the Lord Bur­leigh, upon Sir Edward Coke her then Attorney's coming into her presence, told her, this is he who prosecutes pro Domina Regi­na, for our Lady the Queen; and she said, she would have the form of the Records altered; for it should be At­tornatus Generalis qui pro Domina ve­ritate sequitur. The Attorney General who prosecutes for our Lady the Truth. Whoever is trusted in that employment dishonours his Master and Office, if he gives occasion to the Subjects to be­lieve that his Master seeks other pro­fits or advantages by Accusations, than the common Peace and Welfare: He [Page 65]ought not to excite a jealousie in any of their minds, that confiscations of E­states are designed or desired by any of the King's Ministers; whosoever makes such advantages to the Crown their principal aim in accusing, are either Robbers and Murderers, (in the Scrip­ture sense) in seeking innocent Blood for gain, or in the mildest Construction, (supposing the Accusation to be on good grounds) they shew themselves to be of corrupt minds, and a scandal to their Master and the Government. Profit or loss of that kind ought to have no place in judicial proceedings against suspect­ed Criminals, but truth is only to be regarded; and for this reason the judg­ments given in Court of humane Institu­tion, are in Scripture called, the Judg­ments of God, who is the God of truth.

Yet further, if any benefit to the King could be imagined by making the Evi­dence to the Grand Jury publick, it could not come in competition with the Law expressed in their Oath; which by constant uninterrupted usage, for [Page 66]so many Ages, hath obtained the force of Law. Bracton and Britton in their several Generations bear Witness, that it was then practised; and greater proof of it need not be sought, than the Dis­putes that appears by the Law-Books to have been amongst the ancient Law­yers, whether it was Treason or Felony for a Grand Jury to discover, either who was indicted, or what Evidence was given them. The Trust of the Grand Juries was thought so sacred in those Ages, and their secrecy of so great con­cern to the Kingdom, that whosoever should break their Oath therein, was by all thought worthy to die; only some would have had them suffer as Trai­tors, others as Felons.Co. Instit. 3d part, p. 107. Rulls Indic. 771. And at this day it is held to be a high Misprision punishable by Fine and Impoverish­ment. The Law then having appoint­ed the Evidence to be given to Grand Juries in secret, the King cannot desire to have it made publick. He can do no wrong, saith the old Maxime, that is, [Page 67]he can do nothing against the Law, nor is any thing to be judged for his benefit that is not warranted by Law; His Will, Commands, and desires are therein no otherwise to be known: He cannot change the legal Method or manner of enquiring by Juries, nor vary in any particular case from the customary and general forms of judicial proceedings; he can neither abridge nor enlarge the power of Juries, no more than he can lessen the legal Power of the Sheriffs or Judges, or by special Directions order the one how they shall execute Writs, and the other how they shall give Judgments, though these made by him­self.

'Tis criminal, no doubt, for any to say, that the King desires a Court of Justice, or a Jury, to vary from the di­rection of the Law, and they ought not to be believed therein: If Letters, Writs, or other Commands should come to the Judges for that purpose, they are bound by their Oaths not to regard them, but to hold them for null; the [Page 68]Statutes of 2 E. 3.8. and 20 E. 3.1. are express. That if any Writs or Com­mandments come to the Justices in di­sturbance of the Law, or the Execution of the same, or of right to the par­ties, they shall proceed as if no such Letters, Writs, or Commands were come to them: And the Substance of these and other Statutes is inserted into the Oath taken by every Judge; and if they be under the most solemn and sa­cred Tye in the Execution of Justice, to hold for nothing or none the Commands of the King under the great Seal, sure­ly the Word or Desire of an Attorney General, in the like case, ought to be less than nothing.

Besides, they are strangely mistaken, who think the King can have an Interest different from, or contrary unto that of the Kingdom, in the prosecution of Ac­cused Persons: His Concernments are involved in those of his People; and he can have none distinct from them. He is the Head of the Body Politick, and the Legal course of doing Justice, is like [Page 69]the orderly Circulation of the Blood in the Natural Bodies, by which both Head and Body are equally preserved, and both perish by the interruption of it.

The King is obliged to the utmost of his Power to maintain the Law, and Ju­stice in its due course, by his Corona­tion Oath, and the Trust thereby repo­sed in him. In former Ages he was con­jured not to take the Crown, unless he resolved punctually to ob­serve it.Brom. p. 1159 Mat. Paris, p. 153. Hoved. p. 374. Baker. p. 68. Bromton & others speaking of the Coronation of Richard the First, deliver it thus, That having first ta­ken the Oath; Deinde indutus Mantel­lo, ductus est ad Altare, & conjuratus ab Archiepiscopo, & prohibitus ex parte Dei, ne hunc Honorem sibi assumat, nisi in mente habeat tenere Sacramenta & Vota quae superius fecit. Et Ipse respon­dit, se per Dei auxilium omnia supra­dicta observaturum bona fide. Deinde cepit Coronam de Altari, & tradidit eam Archiepiscopo, qui posuit eam super [Page 70]caput Regis, & sic Coronatus Rex, ductus est ad sedem suam. Afterward cloathed with the Royal Robe, he is led to the Altar, and conjured by the Archbishop, and forbid in the Name of God, not to assume that Honour, unless he intended to keep the Oaths and Vows he had before made; and he answered, by God's help he would saithfully observe all the Premises: And then he took the Crown from off the Altar, and delivered it to the Archbishop, who put it upon the King's head; and the King thus Crown­ed, is led unto his Seat. The violation of which Trust cannot but be as well a wound unto their Consciences as bring great prejudice upon their Persons and Affairs.

The Common Law that exacts this, doth so far provide for Princes, That having their minds free from cares of preserving themselves they may rest as­sured, that no Acts, Words or Designs, that may bring them into danger, can be concealed from the many hundreds of men, who by the Law are appointed [Page 71]in all parts of the Kingdom, watchfully to take care of the King; and are so far concerned in his safety, that they can hope no longer to enjoy their own Lives and Fortunes in peace, than they can preserve him, and the good Order which according to the Laws he is to uphold.

It is the Joynt Interest of King and People that the Antient Rules of doing Justice be held sacred and inviolable; and they are equally concerned in cau­sing strict Inquiries to be made into all Evidences given against suspected, or accused Persons, that the Truth may be discovered; and such as dare to disturb the Publick Peace by breaking the Laws, may be brought to punishment. And the whole course of Judicial Pro­ceedings in Criminal Causes, shews that the People is therein equally concerned with the King, whose Name is used. This is the ground of that distinction which Sir Ed. Coke makes between the Proceedings in Pleas of the Crown, and Actions for wrongs done to the King [Page 72]himself.Co. 3d. Inst. pag. 136. In Pleas of the Crown, or other common of­fences, nusances, &c. principally con­cerning others, or the Publick, there the King by Law must be apprised by Indictment, Presentment, or other mat­ter of Record; but the King may have an Action for such wrong as is done to himself, and whereof none other can have an Action but the King, without being apprised by Indictment, Present­ment, or other matter of Record, as a Quare impedit, Quare incumbravit, a Writ of Attaint, of Debt, Detinue of Ward, Escheat, Scire fac. pur repealer patent, &c. Unto which every man must answer: But no man can be brought to answer for Publick Crimes at the King's Suit otherwise than by Indictment of a Grand Jury.

The whole Course of doing Justice upon Crimina's, from the beginning of the process, unto the Execution of the Sentence, is, and ever was esteemed to be the Kingdoms concernment, as is evi­denced by the frequent Complaints [Page 73]made in Parliament, that Capital Offend­ers were pardon'd to the Peoples damage and wrong. In the 13 Rich. 2. it is said, that the King hearing the grievous Complaints of his Commons in Parlia­ment, of the outragious mischiefs which happened unto the Realm, for that Trea­sons, Murders, and Rapes of Women, be commonly done, and committed, and the more because Charters of pardon had been easily granted in such cases; And thereupon it was enacted, that no pardon for such crimes should be grant­ed, unless the same were particularly specified therein, and that if a pardon were otherwise granted for the death of a man, the Judges should notwithstand­ing enquire by a Grand Jury of the Neighbourhood concerning the death of every such person, and if he were found to have been wilfully murdered, such Charter of Pardon to be disallow­ed; and provisions were made by im­posing grievous Fines upon every per­son, according to his Degree and Qua­lity, or Imprisonment, who should pre­sume [Page 74]to sue to the King for any pardons of the aforesaid crimes, and that such persons might be known to the whole Kingdom, their names were to be upon several Records. The like had been done in many Statutes made by several Parliaments, as in the 6 Ed. 1.9. the 2 Ed. 3.2. the 10 Ed. 3.2. and the 14 Ed. 3.15. wherein it was acknowledged by the King in Parliament, That the Oath of the Crown had not been kept, by reason of the Grant of Pardons con­trary to the aforesaid Statutes; and en­acted that any such Charter of Pardon, from thenceforth granted against the Oath of his Crown and the said Statutes, the same should be holden for none. In the 27 Edw. 3.2. It is further provid­ed for preventing the Peoples damage by such pardons. That from thenceforth in every Charter of Pardon of Felony, which shall be granted at any mans sug­gestion, the said suggestion, and the name of him that maketh the suggestion, shall be comprised in the same Charter, and if after the same suggestion be found un­true, [Page 75]the Charter shall be disallowed and holden for none: And the Justices before whom such Charter shall be al­ledged, shall enquire of the same sugge­stion, and that as well of Charters granted before this time, as of Charters which shall be granted in time to come, and if they find them untrue, then they shall disallow the Charter so alledged, and shall moreover do as the Law de­mandeth.

Thus have Parliaments from time to time declared, that the Offences against [...]he Crown are against the publick wel­ [...]are, and that Kings are obliged by [...]heir Oath and Office to cause Justice to [...]e done upon Traitors and Felons [...]or the Kingdoms sake; according to [...]he ancient common Law, declared by Magna Charta in these [...]ords: Nulli negabimus, 9 Hen. 3.29. nulli vendemus, nulli dif­ [...]remus Justitiam. We will sell to no [...]an, we will not deny or defer to any [...]an either Justice or Right.

And as the publick is concerned, that [Page 76]the due and legal Methods be observed in the Prosecution of Offenders, so like­wise doth the security of every single man in the Nation depend upon it: No man can assure himself he shall not be ac­cused of the highest crimes. Let a mans Innocence and prudence be what it will, yet his most inoffensive Words and Acti­ons are liable to be misconstrued, and he may, by Subornation and Conspira­cy, have things laid to his charge, of which he is no ways guilty. Who can speak or carry himself with that circum­spection, as not to have his harmless Words or Actions wrested to another sence than he intended? Who can be secure from having a Paper pur into his Pockets, or laid in his house, of which he shall know nothing till his Accusati­on? History affords many Examples of the detestable practices in this kind of wicked Court Parasites, among which one may suffice for Instance, out of Polibius an approved Au­thor.Polib. lib. 5. Hermes a powerful Favourite, under Antiochus the young­er, [Page 77]but a man noted to be a favourer of Liars, was made use of against the innocent and brave Epigenes: He had long watcht to kill him, for that he found him a man of great Eloquence and Valour, having also favour and Autho­rity with the King: He had unjustly but unsuccessfully accused him of Treason by false glosses put upon his faithful ad­vice given to the King in open Council; [...]his not prevailing, he by artifice got him put out of his Command, and to retire from Court; which done, he laid [...] Plot against him, with the help and Counsel of (one of his Complices) Alex­ [...]s, and writing Letters as if they had been sent from Molon, (who was then in open Rebellion against his Prince [...]or fear, amongst other Reasons, of the Cruelty and Treachery of Hermes) and corrupted one of Alexis's Servants with [...]reat Promises, who went to Epigenes, [...]o thrust the Letters secretly amongst [...]is other Writings, which when he had [...]one, Alexis came suddenly to Epigenes, [...]emanding of him, if he had received [Page 78]any Letter from Molon: and when he said he had none, the other said, he was confident he should find some; wherefore entring the House to search, he found the Letters, and taking this oc­casion, slew him, [lest if the Fact had been duly examined, the Conspiracy had been discovered.] These things happening thus, the King thought that he was justly slain; in this manner the worthy Epigenes ended his days: But this great mans designs did not rest here; for within a while heightened with suc­cess, he so arrogantly abused His Ma­sters Authority, as he grew dangerous to the King himself, as well as to those about him; insomuch as Antiochus was sorced for that he hated and feared Her­mes, to take away his Life by Strata­gem, thereby to secure himself. By these, and a thousand other ways, the most unblemisht Innocence may be brought into the greatest dangers. Since then every man is thus easily subject to question, and what is one mans case this day, may be another man's to morrow [Page 79]it is undoubtedly every mans concern, to see (as far as in him lies) in every case, that the accused Person may have the benefit of all such provisions, as the Law hath made for the defence of Inno­cence and Reputation.

Now to this end there is nothing so necessary as the secret and separate exa­mination of Witnesses, for though per­haps (as hath been already observed) it may be no very difficult thing for several persons, who are permitted to discourse with each other freely, and to hear, or be told what each of their fellows had been asked and answered, to agree in one story, especially if the Jury may not ask what questions they shall think it for the satisfaction of their own Con­sciences; but that they shall be so far under the correction and censure of the [...]udges, as to have the questions which they put, called by them trifles, im­pertinent, and unfit for the Witnesses [...]o speak to; yet if they be examined a­ [...]art, with that due care of sifting out [...]ll the Circumstances which the Law re­quires, [Page 80]where every man of the Jury is at full liberty to enquire into any thing for his clearer information, and that with what deliberation they think fit, and all this be done with that secrecy which the law commands; it will be al­most impossible for a man to suffer un­der a false Accusation.

Nor has the Law been less careful for the Reputation of the Subjects of England, than for their Lives and E­states, and this seems to be one reason why in criminal Cases, a man shall not be brought to an open legal Trial by a Petit Jury, till the Grand Jury have first found the Bill: The Law having entrusted the Grand Inquest in a special manner with their good names; they are therefore not only to enquire whe­ther the fact that is laid, was done by the party accused, but into the circum­stances thereof too, whether it were done traiterously, feloniously, or mali­ciously, &c. according to the manner charged, which Circumstances are not barely matter of form, but do constitute [Page 81]the very essence of the Crime; and last­ly into the Credit of the Witnesses, and that of the party accused, and unless they find both the Fact proved upon him, and strong presumptions of such aggravating circumstances attending it, as the Law requires in the specification of such Crime, and likewise are satisfi­ed in the credibility of the Witnesses; they ought not to expose the Subject to an open Trial in the face of the County, to a certain loss of his Repu­tation, and hazard of his Life and Estate. Moreover should this practice of pub­lick Examination prevail, and the Ju­rors Oath of Secrecy continue, how par­tial and unequal a thing would it be to declare that to all the World, which will blast a mans good name, and reli­giously cenceal what they may know tending to his Justification: To exa­mine Witnesses (perhaps suborned) cer­tainly prepared, and have Evidence dressed up with all the advantages that Lawyers wits can give it, of the foul­est Crimes a man can be guilty of, and [Page 82]this given before some thousands against him, and yet for the same Court to swear those, whom the Law makes Judges in the case, not to reveal one word of those reasons, which have sa­tisfied their Consciences of his Inno­cence. What is this, but an Artifice of slandring men (it may be) of the most unspotted cnnversation, and of abusing Authority, not so much to find men guilty, as to make them infamous? After this Ignominy is fixed, what Judgment can the Auditors (and from them the World) make, but of high pro­bability of guilt in the party accused, and Perjury in the Jury.

This course, if it should be continu­ed, must needs be of most dangerous consequence to all sorts of men; it will both subject every one without relief to be defamed, and fright the best and most consciencious men, from serving on Grand Juries, which is a most neces­sary part of their duty. Now since there is in our Government (as in every one that is well constituted there ought [Page 83]to be) great liberty of Accusation, that no man may be encouraged to do ill through hopes of impunity, if by this means a Method be opened, for the blasting the most innocent mans honour, and deterring the most honest from be­ing his Judges, what remains, but that every mans Reputation, which is most dear unto such as are good, is held pre­cariously, and it will be in the power of great men to pervert the Laws, and take away whose Life and Estate they please, or at least to fasten imputations of the most detested crimes upon any, whom, for secret reasons they have a mind to defame. The consequences of which scandal, as they are very mis­chievous to every man, so in a Trading Country in a more especial manner, to all who live by any vocation of that kind.

The greatest part of Trade is driven upon credit, most men of any considera­ble Employment, dealing for much more than they are truly worth, and every [Page 84]mans credit depends as well upon his behaviour to the Government he lives under, as upon his private honesty in his transactions between man and man; so that the suspicion only of his being obnoxious to the Government is enough to set all his Creditors upon his back, and put a Stop to all his Affairs, per­haps to his utter ruine. What expedi­tion and violence will they all use to re­cover their debts, when he shall be pub­lickly charged with such crimes as for­feit Life and Estate? Though there should not be one word of the Accusa­tion true, yet they knowing the charge and the seeming proofs in the Court, and the consequences of it, and not being acquainted with the truth, as it appears to the Jury, self interest will make his Creditors to draw in their ef­fects, which is no more than a new contrivance, under colour of Law, of undoing honest men.

If to prevent any of these mischiefs the Jury should discover their fellows and their own Counsel, as the Court by [Page 85]publick Examination doth, it would not only be a wilful breach of their Oath, but a betraying of the trust which the Law has reposed in them, for the security of the Subject: For to subject the reasons of their Verdicts upon Bills to the censure of the Judges, were to divest themselves of the Power which the Law has given them, for most im­portant considerations, without account or control, and to interest those in it, whom the Law has not in this case trust­ed, and so by degrees, the course of Ju­stice in one of the most material parts may be changed, and a fundamental se­curity of our Liberty and Property in­sensibly lost. On the other hand, if for fear of being unworthily reproached as Ignoramus Jury-Men, obstinate fellows, that obstruct Justice, and disserve the King, the Grand Jury shall suffer the Judges, or the Kings Counsel to prevail with them, to indorse Billa vera, when their Consciences are not satified in the truth of the Accusation, they act di­rectly against their Oaths, oppress the [Page 86]innocent whom they ought to protect; as far as in them lies, subject their Coun­try, themselves, and posterity to Ar­bitrary powers, pervert the administra­tion of justice, and overthrow the Go­vernment, which is instituted for the obtaining of it, and subsists by it.

This seems to be the greatest Trea­son, that can be committed against the whole Kingdom, and threatens ruine unto every man in private in it. None can be safe against authorized Malice, and notwithstanding the care of our Ance­stors, Rapine, Murther, and the worst of crimes, may be advanced by the formality of Verdicts, if Grand Juries be overawed, or not suffered to enquire into the Truth, to the satisfaction of their Consciences. Every man whilst he lives innocently, doth, under God, place his hopes of security in the Law, which can give no protection, if its due course be so interrupted, that frauds cannot be discovered, Witnesses may as well favour offenders, as give false testi­mony against the guiltless, and if they, by [Page 87]hearing what each other saith, are put into a way of concealing their villainous designs, there can be no legal Revenge of the crimes already committed. O­thers by their impunity will be encou­raged to do the like: And every qui­et minded person will be equally expo­sed unto private injuries, and such as may be done unto him, under the co­lour of Law. No man can promise un­to himself any security for his Life or goods, and they who do not suffer the u [...]most violences in their own persons, may do it in their Children, Friends, and nearest Relations, if he be deprived of the remedies that the Law ordains, and forced to depend upon the Will of a Judge, who may be (and perhaps we may say) are too often corrupted, or swayed by their own Passions, Interests, or the Impulse of such as are greater than they. This mischief is aggravated by a commonly received Opinion, that whosoever speaks against an accused person is the Kings Witness, and the worst of men, in their worst designs do [Page 88]usually shelter themselves under that name, whereas he only is the Kings Witness, who speaks the truth, whe­ther it be for or against him that is ac­cused. As the Power of the King is the Power of the Law, he can have no other intention than that of the Law, which is to have Justice impartially ad­ministred; and as he is the Father of his People, he cannot but incline ever to the gentlest side, unless it be possible for a Father to delight in the destructi­on, or desire to enrich himself by the confiscation of his Childrens Estates. If the most wicked Princes have had different thoughts, they have been ob­liged to dissemble them. We know of none worse than Nero, but he was so far from acknowledging, that he desi­red any mans condemnation, that he looked upon the necessity of signing War­rants for the execution of Malefactors,Sne. Vit. Ner. Ʋtinam nesci­rem letteras. as a burthen, and rather wished he had not learnt to write, than to be obliged to do it. They who by [Page 89]spreading such barbarous errours, would create unto the King, an interest different from that of his People which he is to preserve, whilst they pretend to serve him in destroying of them, they deprive him of his honour and dignity; Justice is done in all places, in the name of the chief Magistrate, it being presumed, that he doth em­brace every one of his Subjects with equal tenderness, until the guilty are by legal proofs discriminated from the Innocent, and amongst us the Kings name may be used in civil cases, as well as criminal: But it is as impossible for him rightly to desire I should be con­demned for killing a man whom I have not killed, or a Treason that I have not committed, as that my Land should be unjustly taken from me by a judgment in his Bench, or I should be condemned to pay a debt that I do not owe.

In both cases we sue unto him for Ju­stice, and demand it as our right. We are all concerned in it, publickly, and privately, and the King, as well as all [Page 90]the Officers of Justice, are by their se­veral Oaths, obliged in their respective capacities to perform it. They are bound to give their assistance to find out Offenders, and the Kings Attorney is by his Oath to prosecute them, if he be required; and he is not only the Kings servant in such cases, but the Na­tions; or rather, cannot otherwise serve the King, than by seeing Justice done in the Nation. Whensoever any man re­ceives an injury in his Person, Wife, Children, Friends, or goods, the King is injured, in as much as he is by his Office to prevent such mischief, and ought to be concerned in the Welfare of every one of his Subjects; but the par­ties to whom the injuries are done, are the immediate sufferers, and the prose­cution is principally made, that they may be repared or revenged, and o­ther innocent persons secured by the punishment of Offenders, in which the King can be no otherwise concerned, than as he is to see his Office faithfully performed, and his People protected. [Page 91]The Kings suit therefore is in the behalf of his People, yet the Laws leave unto euery man a Liberty, in case of Trea­sons, Murthers, Rapes, Robberies, &c. to sue in the Kings name, and crave his aid, or by way of appeal in his own. The same Law looks upon Felons, or Traitors as publick Enemies, and by authorizing every one to pursue or ap­prehend them, teacheth us, that every man, in his place, ought to do it. The same Act whereby one, or a few are injured, threatneth all, and every mans private interest so concurs with that of the publick, that all de­pends upon the exact preservation of the Method prescribed by the Law, for the impartial inquisition after suspected Offenders, and most tender care of pre­serving such as are innocent. As this cannot possibly be effected without se­cret and separate examinations, the for­bidding of them is no less, than to change the Course, which is enjoyned by Law, confirmed by custom, and grounded upon reason and Justice. If [Page 92]on the other side any man believe, that such as in the Kings name prosecute sus­pected Delinquents, ought only to try how they may bring them to be con­demned, he may be pleased to consider, that all such persons ought, according unto Law, to produce no Witness whom they do not think to be true: No Evi­dence which they do not believe good, nor can conceal any thing that may ju­stifie the accused. No trick or artifice can be lawfully used to deceive a Grand Jury, or induce them to find or reject a Bill, otherwise than as they are led by their own Consciences. All Lawyers were antiently sworn to put no deceit upon the Courts for their Clients sake, and there are Statutes still in force to pu­nish them, if they do it, but there is an eternal obligation upon such as are of Counsel against persons accused of crimes, not to use such arts as may bring the innocent to be condemned, and thereby pervert that which is not called the judgment of man, but of God, be­cause man renders it in the stead, and by [Page 93]the Commandment of God, such practi­ses exalt the Jurisdiction of Tribunals, but infect and pollute them with that in­nocent Blood, which will be their over-throw: And least of all, can it be cal­led a service to the King, since none could ever stand against the cry of it. This is necessarily implyed in the At­torney general his Oath, to serve the King in his Kingly Office, wherein the Law presumes he can do no wrong: But the greatest of all wrongs, and that which hath been most destructive unto Thrones, is by Fraud to circumvent and destroy the Innocent: This is to turn a legal King into a Nimrod, a Hunter of Men: This is not to act the part of a Father or a Shepherd, who is ready to lay down his Life for his Sheep, but such as the Psalmist complains of, who eat up the People as if they eat Bread: Je­zebel did perhaps applaud her own Wit, and think she had done a great Service to the King, by finding out men of Be­lial, Judges, and Witnesses to bring Na­both to be stoned; but that unregarded [Page 94]Blood was a Canker, or the Plague of Leprosie in his Throne and Family, which could not be cured but by its overthrow and extinction. But if the Attorney General cannot serve the King by abu­sing Juries, and subverting the Innocent, he can as little gain an advantage to himself by falsifying his Oath, by the true meaning whereof he is to prose­cute Justice impartially, and the Eternal Divine Law would annul any Oath or Promise that he should have taken to the contrary, even though his Office had obliged him unto it.

The like Obligation lies upon Jurors not to suffer themselves to be deluded, or persuaded, that the Judges, Kings Council, or any others can dispense with that Oath, or any part of it, which they have taken before God unto the whole Nation; nor to think that they can swerve from the Rules set by the Law without a damnable breach of it, The power of relating, or dissolving Conscientious Obligations, acknow­ledged in the Pope, makes a great part [Page 95]of the Roman Superstition; and that grand Impostor could never corrupt Kingdoms and Nations to their destru­ction, and the Establishment of his Ty­ranny, until he had brought them to believe he could dispense with Oaths, taken by Kings unto their Subjects, and by Subjects to their Kings; nor impose so extravagant an Errour upon either, until he had persuaded them he was in the place of God. It is hard to say how the Judges or Kings Council can have the same Power, unless it be upon the same Title; but we may be sure they may as well dispense with the whole Oath as any part of it, and can have no pretence unto either, unless they have the Keys of Heaven and Hell in their keeping: It is in vain to say, the King as any other man may remit the Oath taken unto and for himself; He is not a party for himself, but in the be­half of his People, and cannot dispose of their Concernments without their Consent, which is given only in Parlia­ment.

The Kings Council ought to remem­ber, they are in criminal Cases of Council unto every man in the Kingdom; It is no ways referred unto the Directi­on of the Judges, or unto them, whe­ther that secrecy enjoined by Law, be profitable unto the King or Kingdom; They must take the Law as it is, and render Obedience unto it, until it be al­tered by the Power that made it. To this end the Judges by Acts of Parlia­ment, viz. 18 Ed. 3. cap. 8. and 20 Ed. 3. Cap. 1. are sworn to serve the People, Ye shall serve our Lord the King and his People in the Office of Justice, &c, Ye shall deny to no man common Right by the Kings Letters, nor no other mans; nor for no other cause; and in default thereof in any point, they are to forfeit their Bodies, Lands and Goods. This proves them to be the Peoples Servants as well as the Kings.

Further by the express words of the Commissions of Oyer and Terminer, they are required to assist every man that suffers injury, and make diligent inqui­sition [Page 97]after all manner of falshoods, de­ceits, offences, and wrongs done to any man, and thereupon to do Justice accord­ing to the Law: so that in the whole pro­ceedings in order unto Tryal, and in the Tryals themselves, the Thing principally intended, which several persons are se­verally in their capacities obliged to pursue, is, the discovery of Truth: The witnesses are to depose the Truth, the whole Truth, and Nothing but the Truth: Thereupon the Council for the King are to prosecute: The Grand Jury to pre­sent: and the Petit Jury to try: These are several Offices, but all to the same End; Tis not the Prisoner, but the Crime that is to be pursued; This pri­marily, the Offender but by consequence; and therefore such Courses must be ta­ken, as may discover that, and not such as may ensnare him: When the Offence is found, the impartial Letter of the Law gives the Doom; and the Judges have no share in it, but the pronouncing of it: Till then the Judges are only to preside, and take Care, that every man [Page 98]else, who is employed in this necessary Affair, do his duty according to Law. So that upon result of the whole tran­saction impartial Justice may be done, Either to the Acquittal, or condem­nation of the Prisoner.

Hereby it is manifest why the Judges are obliged by Oath, To Serve the Peo­ple as well as the King: And by Com­mission, To Serve every One that Suf­fers Injuries. As they are to See that Right be done to the King, & His Injur'd Subjects in discovering of the Delin­quent; So they are to be of Council with the Prisoner, whom the Law suppo­seth may be ignorant as well as innocent; and therefore has provided, that the Court shall be of Council for him, and as well inform him of what Legal advan­tages the Law allows him, as to resolve any point of Law when he shall pro­pose it to them; And it seems to be upon the presumption of this steady impar­tiality in the Judges, (thus obliged by all that is held Sacred before God and man to be unbyassed) that the Prisoner [Page 99]hath no Council; for if the Court faith­fully perform their duty, the Accused can have no wrong, or hardship, and therefore needs no Adviser.

Now suppose a man perfectly inno­cent, and in some measure knowing in the Law, should be accused of Treason or Felony; If the Judges shall deny un­to the Grand Jury the Liberty of exa­mining any witnesses, except in open Court, where nothing shall be offered that may help to clear the Prisoner, but every Thing aggravated, that gives co­lour for the Accusation; such Persons only produced, as the Kings Council, or the prosecutors shall think fit to call, of whose Credit also the Jury must not inquire, but shall be controll'd and brow­beaten in asking Questions, of such unknown witnesses, for their own Satis­faction, if they have any Tendency to discover the Infamy of these witnesses, or the Falshood of their Testimony; How can Innocence secure any Man from be­ing arraigned?

And if the Oath of the Judges should [Page 100]be as much forgotten in the further Pro­ceedings upon the Tr [...]al, where in Ca­ses of Treason the Prisoner shall have all the Kings Council (commonly not the most unlearned) prepared with stu­died speeches, and arguments, to make him black, and odious, and to Strein all his words, and to alledge them for In­stances of his guilt: If then all his pri­vate Papers, and Notes to help his me­mory in his Plea, and defence, shall be taken from him by the Gaoler, or the Court, and given to his Prosecutors; And all Advice & Assistance from Coun­cils or friends, and his nearest Relations shall be denied him, & none suffered by word or writing to inform him of the in­differency, or honesty, or the Partiality or malice of the Pannels returned (whom the Law allows him to Challenge or re­fuse, either peremptorily, or for good Reasons offered;) should he be thus de­prived of all the good provisions of the Law for his safety, To what Frauds, Perjuries, & Subornations is not he, and every man Exposed, who may be accu­sed? [Page 101]What Deceits may there not be put upon Juries? and what Probability is there of finding security in Innocence? What an admirable Execution would this be of their Commission, To make di­ligent Inquisition after all manner of Falshoods, Deceipts, wrongs and Frauds, and thereupon to do Justice according to Law? When at the same Time; if so Managed, a Method would be introdu­ced of ruining and destroying any Man in the form of Justice. Such practices would be the highest dishonour to the King imaginable, whose name is used, and so far Misrepresent the Kingly Office, as to make that appear, to have been Erected to vex and destroy the People, which was intended, and or­dained to help and preserve them.

The Law so far abhors such proceed­ings, that it intends, that every Man should be strictly bound, to be Exactly just, in their several Imployments, rela­ting to the Execution of Justice. The Sergeant, of the Kings Council (Sir George Jeffrys, among the rest) who [Page 102]prosecute in the King's name, and are consulted in the forming bills of Indict­ment, and advice about the witnesses and their Testimonies against the Ac­cused; These (if they would remember it) when they are made Sergeants, take an Oath (Cokes 2d Institutes Pag. 214.) as well & truly to serve the People (whereof the party accused is one) as the King himself and to minister the Kings matters duely and truely after the course of the Law to their Cunning; Not to use their Cunning & Craft to hide the Truth and destroy the accused if they can.

They are also obliged by the Statute of Westm. 1. Cap. 29. To put no manner of Deceit or Collusion upon the Kings Court, nor secretly to consent to any such Tricks as may abuse or beguile the Court, or the party, be it in Causes Civil or Criminal: And it is ordained that if any of them be convicted of such pra­ctices, he shall be imprisoned for a year, & never be heard to plead again in any Court; and if the Mischievous conse­quence [Page 103]of their Treacheries be great, they are Subject to further and greater punishments. Our Auntient Law Book called the Mirror of Justice, Cap. 2. Sect. 4. says, That every Sergeant Pleader is chargeable by his Oath, not to maintain or defend any wrong or Falshood to his Knowledge, but shall leave his Client when he shall perceive the wrong intend­ed by him: Also that he shall not move or proffer any false Testimony, nor con­sent to any Lyes Deceits or Corrup­tions whatsoever in his pleadings.

As a further Security unto the Peo­ple against all Attempts upon their Laws, Exemplary Justice hath been done, in several Ages, upon such Judges, and Justiciaries, as through Corruption, Sub­mission unto unjust Commands, or any other Sinister consideration, have dared to swerve from them: The punishments of these wicked Men remain upon Re­cord, as Monuments of their Infamy to be a Terror unto all that shall succeed them. In the Reign of the Saxons the most notable Example was given by [Page 104]King Alfred, who caus'd above forty Jud­ges to be hanged in a Short Space, for several wrongs done to the People, as is related in the Mirror of Justice: Some of them suffered for imposing upon Ju­ries, and forcing them to give Verdicts according to their will; And one as it seems, had taken the Considence to exa­mine a Jury, that he might find which of them would Submit to his will, and Setting aside him who would nor, con­demned a Man upon the Verdict of Ele­ven.

Since the Coming in of the Normans, our Parliaments have not been less severe against such Judges, as have suffered the course of Justice to be perverted, or the Rights and Liberties of the People to be invaded: In the time of Edward the 1st Anno 1289. The Parliament find­ing, That all the Judges (except Two) had swerv'd from their duty, condemn­ed them to several punishments accord­ing unto their Crimes, As Banishment, Perpetual Imprisonment,Ex Chron. Anno 10 Ed. 1. or the Loss of all their E­states, [Page 105] &c. Their Particular Offences are specified in a speech made by the Arch-Bishop of Canterbury in Parliament. They had broken Magna Charta; Incit­ed the King against his People; Violated the Laws under pretence of expounding them; And impudently presumed to prefer their own Councils to the King, before the Advices of Parliament, as ap­pears by the speech, &c. Hereunto an­next.

The like was done in Ed. the 2d Time when Hugh De Spencer was charged for having prevailed with the King to break his Oath to the People, in doing Things against the Law by his own Au­thority.

In Edward the 3d. Time Judge Thorpe was hanged for having in the like manner brought the King to break his Oath:Dan. History p. 260, 261. And the hap­py Reign of that great King affords many Instances of the like nature, amongst which the punishment of Sr. Henry Green and Sr. William Skipwith, deserve to be observ­ed [Page 106]and put into an Equal rank with those of his brave and victorious Grand-father.

In Richard the Second's Time,See all the English Histories of Wal­singham, Fabian, Speed, &c. in the 11 and 21 years of Richard the 2d. Eleven of the Judges, forgetting the dreadful Punishments of their Predecessors, sub­scribed malicious Indict­ments against Law, and gave false In­terpretations of our Antient Laws to the King, thereby to bring many of his most Eminent, & worthiest Subjects, to suffer as Traytors at his Will: Subjected the Authority, and very being of Parliaments to his absolute pleasure, And made him believe, that all the Laws lay in his own breast: Hereupon sentence of death pas­sed upon them; and tho upon their re­pentance, and confessing, they had been swayed by fear, and threatnings from the King, Two only were Executed, all the others, were for ever banished, as unworthy to enjoy the benefit of that Law, which they had so perfidiously, and basely betrayed.

It were an Endless work to recite all the Examples of this kind that are found in our Histories and Records; but that of Empson and Dudley must not be o­mitted: They had craftily contrived to abolish Grand Juries and to draw the Lives and Estates of the People into question, without Indictments by them; and by surprise, and other wicked pra­ctices, they gained an Act of Parliament for their countenance: Hereupon false Accusations followed without number; Oppression and Injustice broke forth like a Flood, And to gain the Kings Fa­vor, they filled his Coffers: The Indict­ments against them mentioned in An­derson's Reports, Pa. 156. 157. are worth reading; whereby they are char­ged with Treason, for Subverting the Laws, and Customs of the Land, in their proceedings without Grand Juries, and procuring the murmuring & hatred of the People against the King, to the great danger of him, & the Kingdom. Nothing could satisfy the Kingdom, tho the King was dead, whom they had flattered, and [Page 108]served, but such Justice done upon them, and many of their Instruments, and Of­ficers, as may for ever make the Ears of Judges to tingle.

And it is not to be forgotten, that the Judges in Queen Eliz. time, in the Case of R. Cavendish in Anderson's Re­ports P. 152, and 155. were (as they told the Queen, and her Councellors) by the punishment of former Judges, e­specially of Empson and Dudley, deter­red from obeying her illegal Commands: The Queen had sent several Letters un­der her Signet; Great Men pressed them to obey her Patent under the Great Seal, and the Reasons of their disobedience being required; They answered, That the Queen her self, and the Judges, also had taken an Oath to keep the Laws; And if they should obey her Com­mands, the Laws would not warrant them, and they should therein break their Oath, to the Offence of God, and their Country, and the Common-wealth where­in they were born; And, say they, if we had no fear of God, yet the Exam­ples, [Page 109]and punishments of others before us, who did offend the Laws, do re­member, and recal us from the like Of­fences.

Whosoever being in the like places may design, or be put upon the like practices, will do well to consider these Examples, and not to think, that he, who obliquely Endeavors to render Grand Jurys use­less, is less Criminal, than he, that would absolutely abolish them: That which doth not act according to its Institution, is, as if it were not in being: And who­ever doth without prejudice consider this matter, will see that it is not less pernicious to deny Juries the use of those Methods of discovering Truth which the Law hath appointed, and so by degrees turn them into a meer mat­ter of form, than openly, and avowedly to destroy them. Surely such a gradual Method of destroying our Native Right is the most dangerous in its consequence. The safety, which our Fore-fathers for many hundreds of years, enjoyed under this part of the Law especially, [Page 110]and have transmitted to us, is so appa­rent to the meanest Capacity, that who­ever shall go about to take it away, or give it up, is like to meet with the fate of Ishmael, to have every mans hand against him, because his is against every Man. Artifices of this Kind, will ruine us more silently, and so with less op­position, and yet as certainly, as the other more moved oppression: This only is the difference, that one way we should be slaves immediately, and the other insensibly; But with this further disadvantage too, that our sla­very should be the more unavoydable, and the faster rivited upon us, because it would be under colour of Law, which Practice in Time would obtain.

Few men at first see the danger of little changes in Fundamentals, and those, who design them, usually act with so much craft, as besides the giving spe­cious Reasons, they take great Care, that the true Reason shall not appear: Every design therefore of changing the Con­stitution ought to be most warily ob­served, [Page 111]and timely opposed; Nor is it only the Interest of the People, that such Fundamentals should be duly guard­ed, for whose benefit they were at first so carefully layed, and whom the Judges are sworn to serve; but of the King too, for whose sake those pretend to act, who would subvert them.

Our Kings as well as Judges are sworn to maintain the Laws; They have them­selves in several Statutes required the Judges, at their peril, to administer E­qual Justice to every Man, notwithstand­ing any Letters, or Commands, &c. even from themselves to the contrary; And when any failure hath been, the greatest, and most powerful of them have ever been the readiest to give Redress. It ap­pears by the preface to the Statutes of 20th Ed. 3. that the Judicial proceedings had been perverted, That Letters writs and Commands had been sent from the King, and great Men to the Justices, and that Persons belonging to the Court of the King, the Queen, the Prince of Wales had maintained, & abetted Quar­rels, [Page 112]&c. Whereby the Laws had been violated, and many wrongs done: But the King was so far from justifying his own Letters, or those illegal practices: That the preamble of those Statutes saith, they were made for the relief of the People in their sufferings by them. That brave King in the height of his glory, and vigor of his Age, chose ra­ther to confess his Error, than to con­tinue in it, as is Evident by his own words. Edward by the Grace of God, &c. Because by divers Complaints made unto us, we have perceived that the Law of the Land, which we by our Oath are bound to maintain, is the less well kept, and Execution of the same disturbed many times by maintenances and procurements; as well in the Court, as the Country, We greatly moved of Con­science in this matter, and for this Cause, desiring as much for the plea­sure of God, and ease and quietness of our Subjects, as to save our Conscience, and for to save and keep our said Oath, by the Assent, &c. Enact, That Judges [Page 113]shall do Justice, notwithstanding Writs, Letters or Commands from himself, &c. and that none of the King's House, or belonging to the King. Queen, or Prince of wales do maintain Quarrells, &c.

King James in his Speech to the Judges in the Starchamber Anno. 1616. told them; That He had after many years resolved to renew his Oath, made at his Coronation, concerning Justice and the promise therein contained for maintaining the Law of the Land. And in the next Page save one says, I was sworn to maintain the Law of the Land, and therefore had been perjured, if I had broken it; God is my Judge I never in­tended it. And His Majesty, that now is, hath made frequent Declarations, and Protestations of his being far from all thoughts of designing an Arbitrary Go­vernment, and that the Nation might be confident, He would rule by Law.

Now if after all this, any Officer of the Kings should pretend Instructions from his Master, to demand so material an Alteration of proceedings, in the high­est [Page 114]Cases against Law, as are above men­tioned, And the Court (who are requi­red to slight and reject the most solemn Commands under the Great Seal, if con­trary to Law) should upon a Verbal In­timation allow of such a Demand, and so break in upon this Bulwark of out Liberties, which the Law has erected; Might it not give too just an occasion to suspect, that all the legal securities of our Lives, and Properties are unable to protect us? And may not such fears rob the King of his greatest Treasure, and Strength, the Peoples hearts, when they dare not rely upon Him in His Kingly Office, and trust, for safety and Protecti­on by the Laws? Our English History affords many Instances of those that have pretended to serve our King in this manner, by undermining the Peoples Right, and Liberties, whose practices have sometimes proved of fatal conse­quence to the Kings themselves, but more frequently ended in their own de­struction.

But after all imagining it could be [Page 115]made out, that this Method of private Examinations by a Grand Jury (which from what has been said before, hath appeared to be so Extremely necessary for the publick good, and to every pri­vate mans security) were inconvenient, or Mischievous, and therefore fit to be changed; Yet being so Essential a part of the Common Law, it is no otherwise alterable, than by Parliament. We find by Presidents, that the bare forms of In­dictments could not be reformed by the Judges: The words Depopulatores agro­rum, Insidiatores viarum, Viet Armis, Baculis, Cultellis, Arcubus & sagittis, could not be left out, but by Advice of the Kingdom in Parliament. A writ issu­ed in the Time of K. Ed. 3. giving Po­wer to hear and determine Offences, and all the Justices resolved (Cok. 4. Inst. Pag. 164.) That they could not lawfully act, having their Authority by Writ, where they ought to have had it by Com­mission; Tho it was in the form and words, that the Legal Commission ought to be. John Knivett Chief Justice by Ad­vice [Page 116]of all the Judges resolved that the said Writ was Contra Legem: And where divers Indictments were before them found against T. S. the same, & all, that was done by colour of that Writ, was Damned.

If in such seeming little Things as these, and many others, that may be in­stanced, the Wisdom of the Nation hath not thought fit to intrust the Judges, but reserved the Consideration of them to the Legislative Power; It cannot be imagined, that they should subject to the discretion, and pleasure of the Judges, those important Points, in the Establish­ed course of the administring Justice, whereupon depends the safety of all the Subjects Lives, and fortunes. If Judges will take upon themselves to al­ter the constant practice, they must ei­ther alter the Oath of the Grand Jury, or continue it; If they should alter it, so as to make it sail with any such new Method, and thus in appearance cha­ritably provide, that the Grand Jury should not take a mock Oath, or for­swear [Page 117]themselves; they then make an Incroachment upon the Authority of Parliaments, who only can make new, or change old Legal Oaths, and all the proceedings thereupon would be void.

If they should continue constantly to impose the same Oath, as well when they have notice from the King, that the Ju­ry shall not be bound to keep his Se­crets, and their own, as when they have none; They must assume to make the same form of Law to be of force, and no force; and the same words to bind the Conscience, as they will have them; Whereby they would prophane the Na­tural Religion of an Oath, and bring a foul Scandal upon Christianity, by trifling worse than Heathens in that sacred matter; And whilst the Judges find themselves under the necessity of administring the Oath unto Grand Ju­ries, and not suffer them to observe it according unto their consciences, they would confess, the illegality of their own Proceedings, and can never be able to repair the Breaches, by pretending a [Page 118]tacite Implication, if the King will, but must unavoidably fall under that ap­proved Maxim of our Law, Maledicta est Interpretatio quae corrumpit Tex­tum; It is a Cursed Interpretation that dissolves the Text.

There are Two Vulgar Errours con­cerning the duty of Grand Juries, which if not removed will in Time destroy all the benefit we can expect from that Constitution, by turning them into a meer matter of form, which were de­signed for so great Ends. Many have of late, thought, and affirmed it for Law, that the Grand Jury is neither to make so strict Inquiry into matters before them Nor to look for so clear Evidence of the Crime, as the Petit Jury; but that of their Presentments, being to pass a se­cond Examination, they ought to indict upon a Superficial Inquiry, and bare Pro­babilities: Whereas should either of these Opinions be admitted, the Prejudice to the subject would be equal to the total laying aside Grand Juries; There being in Truth no difference, between arraign­ing [Page 119]without any Presentment from them at all, and their Presenting upon slight grounds.

For the first, that Grand Juries ought not to make so Strict Inquiry, it were to be wisht, that we might know how it comes to pass, that an Oath should be obligatory unto a Petit Jury, and not unto the Grand: Or in what Points, they may lawfully, and with good Con­science omit that Exactness, whether in Relation to the Witnesses, and their credibility: Or the fact and all its cir­cumstances: Or the Testimony and its weight: Or lastly, in Reference to the Prisoner, and Probability of his guilt: And withal upon what grounds of Law, or Reason their Opinion is founded. On the contrary he that will consider either the Oath they take, or the Com­mission, where their duty is described, will find in all Points, that there lies an Equal obligation upon them, and the Petit Juries.

They swear diligently to inquire, and true Presentment make, &c. and to Pre­sent [Page 120]the Truth, the whole Truth, and No­thing but the Truth, &c. And in the Com­mission of Oyer & Terminer their duty (with that of the Commissioners) is thus described: Ad Inquirendum per Sa­cramentum Proborum & legalium ho­minum, &c. per quos rei veritas melius sciri poterit, de quibuscun (que) proditio­nibus, &c. confoederationibus, Falsis al­legantiis, nec non Accessoriis Eorundem, &c. per quoscun (que) & qualitercun (que) habit. fact. perpetrat. sive Commiss. Et per quos, Et per quem, cui, vel quibus quan­do, qualiter, vel quomodo, & de aliis ar­ticulis & Circumstantiis praemis. & eo­rum aliquod, vel aliqua qualitercun (que) concernen. To inquire by the Oath of honest and lawful Men, &c. By whom the Truth of the matter may be best known, of all manner of Treasons &c. Confederacies, false Testimonies, &c. As also the Accessories, &c. by whomsoever, or howsoever, done, perpetrated, or com­mitted, by whom, or to whom, how, in what way, or in what manner. And of other Articles and Circumstances pre­mised, [Page 121]and of any other Thing or Things howsoever concerning the same: Now for any Man, after this to maintain, that Grand Juries are not to inquire, or not carefully, is as much as in plain terms to say they are bound to act contrary to the Commission, and their Oath; And to affirm that they can discharge their duty according to the obligations of Law and Conscience, which they lie under, without a strict Inquiry into Particulars, is to affirm, that the End can be obtained without the means ne­cessary unto it.

The Truth is, that Grand Juries have both a larger field for their Inquiry, and are in many respects better capacitated to make a strict one, than the Petit Ju­ries: These last are confined as to the Person and the Crime, specified in the Indictment; But They are at large ob­liged to search into the whole matter, that any ways concerns every case be­fore them, and all the Offences contain­ed in it, all the Criminal Circumstances whatsoever, and into every Thing, how­soever [Page 122]concerning the same. They are bound to inquire whether their Informa­tion of Suspected Treasons or Felonies, brought by Accusers, be made by Con­spiracy, or Subornation; Who are the Conspirators, or false Witnesses: By whom abetted, or maintained; Against whom, and how many, the Conspiracy is layed; When, and how, and in what course, it was to have been prosecuted.

But none of these most intricate mat­ters (which need the most strict and diligent Inquiries) can come under the Cognisance of the Petit Jury; They can only examine so much, as relates to the Credit of those Witnesses brought to prove the Charge against the Parties, In­dicted; Wherein also they have neither Power, nor convenient time to send for persons, or Papers, if they think them needful, Nor to resolve any doubts of the Lawfulness, and Credibility of the Testimonies.

Yet further, if the Crimes objected are manifest, 'tis then the Grand Juries duty to inquire after all the Persons any [Page 123]ways concerned in them, and the seve­ral Kinds of Offences, whereof every one ought joyntly, or separately to be indicted as they shall discover them to have been Principals, or Accessories Parties or privy thereunto, or to have comforted, or Knowingly relieved either the Traitors or Felons, or conceal'd the offences of others: But the Inquisiti­on into all these matters, which require all possible strictness in searching, as be­ing of the highest importance unto the publick Justice, and safety, is wholly out of the Power & Trust of the Petit Ju­ries. The guilt, or Innocence of the Parties put upon their Tryals, & the Evidence thereof given is the only Objects of their Inquiries. It is not their work, nor within their trust to search into all the guilt, or Crimes of the Parties, whom they try; They are bound to move within the Circle of the Indictment made by the Grand Jury, who are to appoint, and specify the offences, for which the Ac­cused shall be tried by the Petit Jury.

When a Prosecutor suggests that any Man is criminal, and ought to be in­dicted, it belongs to the Grand Jury to hear all the proof he can offer, & to use all other means they can, whereby they may come to understand the Truth of the suggestion & every thing or circum­stance, that may concern it; Then they are carefully to examine the nature of the Facts, according unto the Rules of the Com. Law, or the express words of the Statutes, whereby offences are distin­guished, and punishments allotted unto each of them: Tis true, that upon heat­ing the Party, or his Witnesses, the Petit Jury may acquit or judge the Facts in the Indictment to be less heinous, or ma­litious, then they were presented by the Grand Jury, but cannot aggravate them; which being considered, it will Easily appear by the intent and Nature of the Powers given unto Grand Juries, that they are by their Oaths obliged, and their institution ordained to keep all injustice from entring the first gates of our Courts of Judicature, and to secure [Page 125]the innocent not only from punishment, but from all disgrace, vexation, Ex­pence or danger.

To understand our Law clearly here­in, the Jurors must first know the law­ful grounds whereupon they may and ought to indict, and then what truly and justly ought to be taken for the ground of an Indictment. The princi­pal and most certain is the Jurors perso­nal knowledge, by their own Eyes or Ears, of the Crimes whereof they in­dict: Or so many pregnant concurring Circumstances, as fully convince them of the guilt of the Accused: When these are wanting the Depositions of Witnes­ses and their Authority are their best guides in finding Indictments. When such Testimonies make the charge ma­nifest and clear to the Jury, they are called Evidence, because they make the guilt of the Criminal evident, and are like the Light that discovers what was not seen before: All Witnesses for that reason are usually called the E­vidence, taking their name from what [Page 126]they ought to be: Yet Witnesses may swear directly and positively to an Ac­cusation, and be no Evidence of its truth to the Jury; sometimes such Re­marks may be made upon the Witnesses, as well in relation to their Reputation and Lives, as to the Matter, Manner, and Circumstance of their Depositions, that from thence the falshood may ap­pear, or be strongly suspected: It is therefore necessary to know what they mean by a probable Cause or Evidence, who say that our Law requires no more for an Indictment.

Probable, is a Logical Term, relating to such propositions, as have an appear­ance, but no certainty of Truth, shew­ing rather what is not, than what is the matter of Syllogisms: These may be al­lowed in Rhetorick, which worketh upon passions, and makes use of such Colors as are fit to move them, whether true or false; but not in Logick, whose Object is Truth; as it principally intends to ob­viate the Errours that may arise from the credit given unto appearances, by [Page 127]distinguishing the uncertain from the certain, verisimile à vero, it cannot admit of such Propositions, as may be false as well as true, it being as impos­sible to draw a certain conclusion from uncertain premises, as to raise a solid Building upon a tottering or sinking Foundation. This ought principally to be considered in Courts of Justice, which are not erected to bring men into con­demnation, but to find who deserves to be condemned, and those Rules are to be followed by them, which are least li­able to deception. For this Reason the Council of the Areopagites, and some others of the best Judicatures that have been in the World, utterly rejected the use of Rhetorick, looking upon the Art of persuading by uncertain proba­bilities, as little differing from that of deceiving, & directly contrary to their ends, who by the knowledge of truth desired to be led into the doing of Ju­stice: But if the Art that made use of their probabilities was banisht from un­corrupted Tribunals, as a hindrance un­to [Page 128]the discovery of Truth, they that would ground Verdicts totally upon them, declare an open neglect of it; and as it is said, that uno absurdo dato mille sequuntur, if Juries were to be guided by probabilities, the next que­stion would be concerning the more or less probable, or what degree of proba­bility is required to persuade them to find a Bill: This being impossible to fix, the whole Proceedings would be brought to depend upon the Fancies of Men, and as nothing is so slight but it may move them, there is no security that innocent Persons may not be brought every day into danger and trouble. By this means certain mis­chiefs will be done, whilst it is by their own confession uncertain, whether they are any ways deserved by such as suffer them, to the utter overthrow of all Ju­stice.

If the word Probable be taken in a common, rather than a nice Logical sense, it signifies no more than likely, or rather likely than unlikely: When a [Page 129]matter is found to be so, the Wager is not even, there is odds upon one side, and this may be a very good ground, for betting in a Tennis Court, or at a Horse race, but he that would make the Administration of Justice to depend upon such Points, seems to put a very small value upon the Fortunes, liberties and reputation of men, and to forget that those who set in Courts of Justice have no other business there than to preserve them.

This continues in force, tho in a Dia­logue between a Barrister, and a Grand Jury man, published under the Title of the Grand Jury Mans Oath and Office, it be said p. 8. and 9. That their work is no more than to present Offences fit for a Tryal, and for that Reason, give in only a Verisimilar or probable charge; and others have affirmed, that a far less Evidence will warrant a Grand Juries Indictment, than a petit Juries Verdict. For Nothing can be more opposite to the Justice of our Laws, than such Opi­nions: All Laws in doubtful Cases direct [Page 130]a suspension of Judgment, or a sentence in favour of the Accused, person: But if this were hearkened unto, Grand Juries should upon their Oaths affirm, they judge him Criminal, when the Evidence is upon such uncertain grounds that they cannot but doubt, whether he is so or not.

It cannot be hereupon said, that no Evidence is so clear and full, but it may be false, and give the Jury occasion of doubts, so as all Criminals must escape, if no Indictment ought to be found un­less the proofs are absolutely certain, for it is confessed, that such Cases are not capable of an infallible, Mathemati­cal demonstration; but a Jury, that Examines all the Witnesses, that are likely to give any Light concerning the business in question, and all Circumstan­ces relating to the fact before them, with the Lives and Credit of those that testify it, and of the Person accused, may and do often find that which in their Consciences, doth fully perswade them, that the accused Person is guilty; This [Page 131]is as much as the Law, or their Oath doth require, and such as find bills, af­ter having made such a Scrutiny, are blamless before God, and Man, if through the fragility inseparable from humane nature, they should be led into Error? For they do not swear, that the bill is true, but that they in their Consciences believe that it is so; And if they write Ignoramus upon the Bill, it is not there­by declared to be false, nor the Person accused acquitted, but the matter is suspended, until it can be more clearly proved, as in doubtful Cases, it alwaies ought to be.

Our Ancestors took great Care that suspicious, and probable Causes should not bring any Mans Life, and Estate into danger; For that reason, it was or­dained by the Stat. 37. Ed. 3. Cap. 18. That such as made suggestions to the King; should find surety to pursue and in­cur the same pain, that the other should have had if he were attainted, in case their suggestion be found evil & that then process of the Law should be made against the Accused.

This manner of Proceeding, hath its root on eternal, and universal Reason: The Law given by God unto his People, Deut. 19. allotted the same Punishment unto a false witness, as a Person convict­ed. The best disciplined Nations of the world, learnt this from the Hebrews, and made it their Rule, in the admini­stration of Justice. The Grecians gene­rally observed it, and the Romans, ac­cording to their Lex Talionis, did not on­ly punish death with death, but the in­tention of committing Murther by false Accusations, with the same severi­ty, as if it had been effected by any other means. This Law was inviolably observed as long as any thing of regu­larity or equity remained amongst them; and when through the wickedness of some of the Emperours, or their favou­rites, it came to be overthrown, all Ju­stice perished with it. A Crew of false Informers brake out to the destruction of the best men, and never ceased until they had ruined all the most eminent and antient Families: Circumvented [Page 133]the Persons, that by their Reputation, Wealth, Birth or Virtue deserved to be distinguished from the common sort of People, and brought desolation, upon that victorious City.Tac. Ann. 3. Tacitus complains of this, as the cause of all the mischiefs suffered in his Time, and Country.

By their means the most Savage Cruelties, were committed under the name of Law, which thereby became a greater Plague, than formerly crimes had been: No remedy could be found, when those Delatores, whom he calls, genus hominum Publico exitio repertum, Tac. Ann. 4. & poenis quidem nunquam satis coercitum, were invi­ted by impunity, or reward, and the Miserable People groaned under this calamity, until those instruments of ini­quity, were by better Princes, put to the most cruel, though well deserved deaths.

The like hath been seen in many Pla­ces, and the domestick quiet, which is now enjoyed in the Principal parts of Europe, proceeds chiefly from this, [Page 134]that every man knows the same Pu­nishment, is appointed for a false Ac­cusation, and a proved crime.

It is hardly seven years since Monsieur Courboyer, a man of quality in Brit­tany, suborned two of the King of France his Guards, to swear Treasonable Designs against La Motte, a Norman Gentleman; The matter being brought to Monsieur Colebert, he caused the Accused Person and the witnesses to be secured, until the fraud was discover­ed by one of them, whereupon he was pardoned? La Motte released: Cour­boyer beheaded, and the other false Witness hanged by the Sentence of the Parliament of Paris. Though this Law seems to be grounded upon such foundation, as forbids us to question the equity of it, our Ancestors (for Reasons best known unto themselves) thought fit to moderate its Severity, by the Statute of 38. Ed. 3. Cap. 9. yet then it was enacted, and the Law continues in force unto this day; That whosoever made complaints to the King, and could [Page 135]not prove them against the defendant, by the process of Law limited in former Statutes, which is first by a Grand Jury, he should be imprisoned until he had made gree to the Party of his damages, and of the slander he suffered by such oc­casion, and after shall make fine and ran­som to the King, which is for the Com­mon damage, that the King and his Peo­ple suffer by such a false accusation and defamation of any Subject: And in the 42. Ed. 3. Cap 3. To eschew the Mis­chiefs and damage done by false Accusers 'Tis enacted, that no man be put to an­swer such suggestions without present­ment before the Justices, i. e. by the Grand Jury: It cannot surely be imagin­ed, that the suggestions made to the King and his Council, had no probabi­lity in them, Or that there was no co­lour, cause, or Reason for the King to put the party to answer the Accusation, but the grievance and complaint was, that the People suffered certain damage, and vexation upon untrue, and at best, uncer­tain accusations, and that therein the [Page 136]Law was perverted by the King and his Councils taking upon them, to judge of the certainty, or Truth of them, which of right belonged to the Grand Jury on­ly, upon whose Judgment and Integrity our Law doth wholly rely, for the in­demnity of the Innocent, and the pu­nishment of all such as do unjustly molest them.

Our Laws have not thought fit so ab­solutely to depend upon the Oaths of Witnesses, as to allow, that upon Two, or Ten mens swearing positively Trea­son or Felony against any Man, before the Justices of peace, or all the Judges, or before the King and his Council, that the party accused, be he either Peer of the Realm or Commoner, should with­out further Inquiry be thereupon ar­rained, and put upon his Tryal for his Life: Yet none can doubt but there is something of probability in such depo­sitions nevertheless the Law Refers those matters unto Grand Juries, and no man can be brought to Tryal, until upon such strict Inquiries, (as is be­fore [Page 137]said) the Indictment be found. The Law is so strict in these Inquiries, that tho the Crime be never so notorious, may if Treason should be confessed in Writing under hand and seal, before Ju­stices of Peace, Secretaries of State, or the King and Council, yet before the party can be arrained for it, the Grand Jury must inquire, and be satisfied, whe­ther such a Confession be clear and cer­tain: Whether there was no collusion therein: Or the party induced to such confession by promise of pardon: Or that some pretended partakers in the Crime may be defamed, or destroyed thereby; They must inquire, whether the Confession was not extorted by fear, threatnings, or force, and whether the party was truly Compos mentis, of sound mind, and Reason at that Time.

The Stat. 5. Eliz. Cap. 1. declares the antient Common Law concerning the Trust and duty of Juries, and Enacts that none should be indicted for assisting, aiding, comforting, or abelting Criminals in the Treasons therein made and de­clared [Page 138] unless he, or they be thereof law­fully accused by such good and sufficient Testimony or proof, as by the Jury, by whom he shall be indicted, shall be thought good, lawful, and sufficient to prove him, or them guilty of the Said Offences. Herein is declared, the only True Reason of Indictments, i. e. the Grand Juries Judgment that they have such Testimonies as they esteem suf­ficient to prove the party indicted guilty of the Crimes whereof he is accused, and whatsoever the Indictment doth con­tain, they are to present no more, or other Crimes, than are proved to their satisfaction, as upon Oath they declare it is, when they present it. This exactness is not only required in the Substance of Crimes, but in the Circumstances, and any doubtfulness, or uncertainty in them makes the Indictment, & all proceedings upon it by the Petit Jury, to be insuffici­ent, and void, and holden for none, as appears by the following Cases.

In Youngs Case in the Lord Cooks Re­ports Lib. 4. Fol. 40. An Indictment for [Page 139]Murther was declared void for its in­certainty, because the Jury had not lay­ed certainty, in what part of the body the mortal wound was given, saying on­ly, that 'twas about his breast, the words were Ʋnam Plagam mortalem circiter pectus. In like manner in Vaux Case Cooks Rep. Lib. 4. Fol. 44. he being in­dicted for poisoning Ridley, the Jury had not plainly and expresly averred that Ridley drank the Poison, tho other words implyed it, and thereupon the Indictment was judged insufficient for (saith the book) the matter of an In­dictment ought to be full, express, and certain, and shall not be maintained by argument or implication, for that the In­dictment is found by the Oath of the Neighborhood. In the 2d part of Rolls Re­ports p. 263. Smith and Malls Case the Indictment was quashed for incertainty, because the Jury had averred that Smith was either a servant or Deputy, Smith Existens servus sive Deputatus, are the words: It was doubtless probably enough proven to the Jury, that he was [Page 140]Either a Deputy, or servant, but because the Indictment did not absolutely and certainly aver his condition Either of servant, or Deputy, it was declared void: If there be any defect of certainty in the Grand Juries Verdict, no proof or Evidence to the Petit Jury can sup­ply it, so it was judged in Wrote and Wigs Case Coke 4. Rep. Fol. 45, 46, 47. It was layed, that Wrote was killed at Shipperton, but did not aver that Ship­perton was within the Verge, tho in truth it was, and no Averment or Oath to the Petit Jury, could supply that small faileur of certainty to support the Indictment; and the reason is rendred in these words, viz. The Indictment being Veredictum id est dictum Veritatis a Verdict, That is, a saying of Truth and matter of Record, ought to contain the whole Truth which is requisite by the Law, for when it doth not appear, 'tis the same, as if it were not, and every material part of the In­dictment ought to be found upon the Oath if the Indicters and cannot be supplied by the Averment of the Party. The [Page 141]Grand Juries Verdict is the foundation of all judicial proceeding against Capital Offenders (at the King suit) if that fail in any point of certainty, both convicti­ons, and acquittals thereupon, are ut­terly void, and the proceedings against both may begin agen, as if they had ne­ver been tried, as it appears in the Case last cited, Fol. 47.

Now as the Law requires from the Grand Jury Particular, certain and pre­cise affirmations of Truth, so it expects that they should look for the like, and accept of no other from such as bring accusations to them. For no man can cer­tainly affirm that which is uncertainly delivered unto him, or which he doth not firmly believe. The witnesses that they receive for good, are to depose on­ly absolute certaintys about the Facts committed, That is, what they have seen, or heard from the accused parties themselves, not what others have told them; They are not to be suffered to make probable arguments, and infer from thence the guilt of the accused; Their [Page 142]depositions ought to be positive, plain, direct and full: The Crime is to be sworn without any doubtfulness, or obscurity; Not in words qualified, & limited to be­lief, conceptions, or apprehensions. This absolute certainty required in the depo­sition of the Witnesses, is one principal ground of the Juries most rational as­surance of the Truth of their Verdict: The credit also of the Witnesses ought to be free from all blemish, that good, and Conscientious men may rationally rely upon them, in matters of so great moment, as the bloud of a man. It must also be certainly evident, that all the matters which they depose, are consi­stent with each other and accompanied with such circumstances, as in their Judg­ment render it credible: All just Indict­ments, must be built upon these moral assurances, which the wisdom of all Na­tions hath devised as the best, and only way of deciding Controversies; Nei­ther can a Grand Jury man, who swears to present nothing but the Truth, be satisfied with less.

'Tis scarce credible that any learned in our Laws, should tell a Grand Jury that a far less Evidence will warrant their Indictment (being but an Accusa­tion) than the Petit Jury ought to have, for their Verdict. Both of them do in like manner, plainly, and positively affirm upon their Oaths, the Truth of the Ac­cusation; Their Verdicts are indeed one, and the same in substance, and sense, tho not in words. There is no real dif­ference, between affirming in Writing, that an Indictment of Treason is true, as is the practice of Grand Juries, and saying that the party tried thereupon is guilty of the Treason, whereof he is indicted, as is the course of Petit Juries: They are both upon their Oaths; They are equally obligatory into both; The one therefore must expect the same proof for their satisfaction, as the other, and as clear Evidence must be required for an Indictment, as for a Verdict; It is unreasonable to think that a sligh­ter proof, should satisfie the Consciences of the greater Jury, than is requisite to [Page 144]convince the less; And uncharitable to imagin, that those should not be as sen­sible as the others of the Sacred security they have given by Oath, to do nothing in their Offices, but according to truth.

If there ought to be any difference in the Proceedings of the Grand and Petit Juries, the greater exactness and dili­gence seems to be required in the Grand: For as the same work of finding out the truth in order to the doing of Justice is allotted unto both, the greatest part of the burthen, ought to lye upon them, that have the best opportunities of per­forming it. The invalidity weakness, or defects of the Proofs may be Equally Evident to either of them: But if there be deceit in stifling true Testimonies, or malice in suborning wicked Persons, to bring in such as are false, the Grand Ju­ry may most easily, nay probably, can only discover it. They are not straitned in time; They may freely examine in private, without interruption from the Council, or Court, such Witnesses, as are presented unto them, or they [Page 145]shall think fit to call; they may jointly or severally enquire of their Friends or Acquaintance, after the Lives and Re­putations of the Witnesses, or the ac­cused Persons, and all circumstances re­lating unto the matter in question, and consult together under the Seal of Se­crecy: On the other side the Petty Ju­ry being charged with the Prisoner, acts in open Court, under the Awe of the Judges: is Subject to be disturb'd, or interrupted by Council: Deprived of all opportunity of Consulting one ano­ther, until the Evidence be summ'd up, and not suffered to eat or drink, until they bring in a Verdict; so is it almost impossible for them thus limited to dis­cover such evil practices, as may be u­sed for, or against the Prisoner, by Sub­ornation or Perjury to pervert Justice; if therefore the Grand Jury be not per­mitted to perform this part of their du­ty, it is hard to imagine how it should be done at all: And it is much more inconceivable how they can satisfie their Consciences, if they so neglect, as [Page 146]to find a Bill upon an imperfect Evidence, in the absence of the Prisoner in Expe­ctation that it will be supplied at the Bar: It concerns them therefore to remember, that if they proceed upon such uncertainties, they will certainly give incurable Wounds into their Neighbours Reputations, in order unto the destruction of their Persons.

Whatever ground this Doctrine of Indicting upon slight proofs may have got in our days, it is (as we have seen) both against Law and Reason, and con­trary to the practice of former times. My Lord Coke in his Comment on Westm. 2d. tells us, That in those days (and as yet it ought to be) Indictments taken in the Absence of the Party were form­ed upon plain and direct Proofs, and not upon Probabilities and Inferences, Herein we see, that the practice of our Fore-Fathers, and the opinion of this great and judicious Lawyer, were di­rectly against this new Doctrine, and some that have carefully looked back­ward, observed, that there are very [Page 147]few Examples of men acquitted by Pe­tit Juries, because Grand Juries of old were so wary in canvasing every thing narrowly, and so sensible of their Du­ty, in proceeding according unto truth upon Satisfactory Evidence, that few or none were brought unto Trial till their Guilt seemed evident.

It is therefore a great mistake, to think that the second Juries were insti­tuted for the hearing of fuller proofs; That was not their work, but to give an opportunity to the accused persons to answer for themselves, and make their defence, which cannot be thought to strengthen the Evidence, unless they be supposed to play booty against their own Lives. By way of answer the Pri­soner may avoid the charge: He is permitted to take Exceptions; he may demur or plead to the Indictments in points of Law: Herein the Judges ought to assist him, and appoint Coun­sel if he desire it: He may shew that the Indictors, i. e. the Grand Jury, or some of them, are not lawful [Page 148]men, or not lawfully returned by the She­riffs; embracery or practice may be pro­ved in the packing of the Jury: A Con­spiracy, or Subornation may be disco­vered; Falshood may be found out in the Witnesses, by questions about some circumstances that none could have asked, or imagined, except the Party accused: And besides doing right to the Indicted, in these and many other things, 'tis the Peoples due to have all the Evidence first taken in private, to be afterwards made publick at the Tri­al, that the Kingdom may be satisfied in the equal administration of Justice, and that the Judgments against Crimi­nals may be of greater Terrour, and more useful to preserve the common peace.

If any object that this Doctrine would introduce double Trials for eve­ry offence, and all the delays that ac­company them, it may be answered. That Nulla unquam de morte hominis cunctatio Longa est, Ju. Sat. No delay is to be esteemed Long, when the life of [Page 149]a man is in question. The punishment of an offendor, that is a little deferred, may be compensated by its severity, but blood rashly spilt, cannot be gathe­red up, and a Land polluted by it, is hardly cleansed. Wise, and good men, in matters of this nature, have ever proceeded with extream caution, whi­lest the swift of foot are in the Scrip­ture represented under an ill Character, and have been often found in their haste to draw more guilt upon them­selves, than what they pretended to chastize in others. To avoid this mis­chief, in many well polished King­doms, several Courts of Justice are in­stituted, who take cognizance of the same facts, but so subordinate unto one another, that in matters of life, limb, li­berty, or other important cases, there is a right of appeal from the inferior, be­fore which it is first brought, to the Su­perior where this is wanting, means have been found to give opportunity unto the Judges to reflect upon their own sentences, that if any thing had [Page 150]been done rashly, or through mistake, it might be corrected, man, even in his best estate, seeming to have need of some such helps. Tiberius Caesar was never accused of too much lenity, but when he heard that Lutorius 'Priscus, had been accused of Treason before the Se­nate, condemned, and immediately put to death, Tam praecipites deprecatus est poenas, He desired that such sudden punishment might for the future be forborn, and a Law was thereupon made, That no Decree of the Senate should in less than ten days be transmit­ted to the Treasury, before which time it could not be executed, Tac. An. 3. Matters of this nature concerning eve­ry man in England, it is not to be doubted but our Ancestors consider'd them, and our constitutions, neither ad­mitting of subordinate Judicatures from whence appeals may be made, nor gi­ving opportunities unto Juries to re­examine their Verdicts, after they were given, they could not find a way more suitable unto the rules of Wisdom, Ju­stice, [Page 151]and Mercy, than to appoint two Juries with equal care, according unto different methods, the one in private, and at leisure, the other publickly in the presence of the party, and more speedy to pass upon every man, so as none can be condemned, unless he be thought guilty by them both, and it cannot be imagined, that so little time, as is usually spent in Trials at the Bar, before a Petit Jury, should be allowed unto one that pleads for his life, or unto them who are to be satisfied in their consciences, unless it were presumed, that the Grand Jury, had so well exami­ned, prepared, and disgested the matter, that the other may proceed more suc­cinctly, without danger of error.

Therefore let the Grand Juries faith­fully perfom thei high Trust, and neither be cheated nor frighted from their Duty: Let them pursue the good old way, since no Innovation can be brought in, that will not turn to the prejudice of the accused Pesons, and themselves: Let them not be deluded [Page 152]with frivolous Arguments, so as to in­validate a considerable part of our Law, and render themselves insignificant ci­phers, in Expectation that Petit Juries will repair the faults they commit, since that would be no less than to slight one of the best fences that the Law pro­vides for our Lives and Liberties, and very much to weaken the other.

When a Grand Jury finds a Bill a­gainst any person, they do all that in them lies to take away his Life, if the crime be capital, and it is ridiculous for them to pretend they relie upon the virtue of the Petit Jury, if they shew none in themselves. They cannot rea­sonably hope the other should be more tender of the Prisoners concernments, more exact in doing Justice, or more careful in examining the Credit of the Witnesses, when they have not only neglected their duty of searching into it, but added strength unto their Testi­mony by finding a Bill upon it.

They cannot possibly be exempted from the blame of consenting (at the [Page 153]least) unto the mischiefs that may ensue, unless they use all the honest care that the Law allows to prevent them; nor consequently avoid the stain of the blood that may be shed by their omission, since it could not have been, if they had well performed their part before they found the Indictment, whereby the Party is exposed to so many disadvan­tages, that it is hard for the clearest In­nocence to defend itself against them.

But when the one and the other Jury act as they ought, with courage, dili­gence, and indifference, we shall have just reason, with the wise Lord Chan­cellour Fortescue, to celebrate that Law that instituted them. To congratulate with our Countrey men the happiness we enjoy, whilest our Lives lie not at the mercy of un­known Witnesses, hired, Fort. de laud. Leg. Ang. cap. 26. poor, uncertain, whose con­versation or malice we are strangers to, but Neighbours of Substance, of honest report, brought into Court by an honour­able sworn Officer; men who know the [...]