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DELIVERED TO THE
SESSIONS OF THE PEACE
HELD FOR THE
CITY AND LIBERTY OF WESTMINSTER, &c.
ON THURSDAY THE 29 TH OF JUNE, 1749.
DELIVERED TO THE
GRAND JURY, &c.
Gentlemen of the Grand Jury, THERE is no part in all the excellent frame of our constitution which an Englishman can, I think, contemplate with such delight and adıniration ; nothing which must fill him with such gratitude to our earliest ancestors, as that branch of British liberty from which, gentlemen, you derive your authority of assembling here on this day.
The institution of juries, gentlemen, is a privilege which distinguishes the liberty of Englishmen from those of all other nations ; for as we find no traces of this in the antiquities of the Jews, or Greeks, or Romans, so it is an advantage which is at present solely confined to this country; not so much, I apprehend, from the reasons assigned by Fortescue, in his book de Laudibus, cap. 29, namely, because ! there are more husbandmen and fewer freeholders * in other countries,' as because other countries have less of freedom than this; and, being for the most part subjected to the absolute wills of their
governors, hold their lives, liberties, and properties, at the discretion of those governors, and not under the
tion of certain laws. In such countries it would be absurd to look for any share of power in the hands of the people.
And, if juries in general be so very signal a blessing to this nation, as Fortescue, in the book I have just cited, thinks it: 'A method," says he, much
more available and effectual for the trial of truth
than is the form of any other laws of the world, * as it is farther from the danger of corruption 6 and subornation; what, gentlemen, shall we say of the institution of grand juries, by which an Englishman, so far from being convicted, cannot be even tried, nor even put on his trial in any capital case, at the suit of the crown; unless, perhaps, in one or two very special instances, tilf twelve men, at the least, have said on their oaths that there is a probable cause for his accusation! Surely we may, in a kind of rapture, cry out with Fortescue, speaking of the second jury, Who then can unjustly die • in England for any criminal offence, seeing he may . have so many helps for the favour of his life, and
that none may condemn him but his neighbours, good and lawful men, against whom he hath no * manner of exception ?'
To trace the original of this great and singular privilege, or to say when and how it began, is not an easy task ; so obscure indeed are the footsteps of it through the first ages of our history, that my lord Hale, and even my lord Coke, seem to have declined it. Nay, this latter, in his account of his second or petty jury is very succinct; and contents himself with saying, Co. Lit. 155. b. that it is very anrient, and before the Conquest.
Spelman, in his Life of Alfred, lib. ii. page 71, will have that prince to have been the first founder of juries, but in truth they are much older; and very probably had sonde existence even among the Britons. The Normans likewise had antiently the benefit of juries, 4s appears in the Custumier de