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Normandy; and something like grand juries tog we find in that book under the title Suit de Murdyr.
Bracton, who wrote in the reign of Henry the Third, in his book de Corona, cap. 1. gives a plain account of this matter ; and by him it appears, that the grand juries before the justices in eyre
little at that time from what they now are, before justices assigned to keep the peace, oyer, and terminer, and gaol-delivery, unless in the manner of choosing them, and unless in one other respect; there being then a grand jury sworn for every hundred; whereas, at present, one serves for the whole county, liberty, &c.
But before this time our ancestors were sensible of the great importance of this privilege, and extremely jealous of it, as appears by the twentyninth chapter of the great charter, granted by king Jolin, and confirmed by Henry the Third. For thus my lord Coke, 2 Instit. 46. expounds that chapter. Nullus liber homo cupiatur, &c.
« No man shall be taken, that is,' says he, restrained of liberty, by petition or suggestion to the king and his council ; unless it be by indictment or presentment of good and lawful men, where such deeds bę done. And so just a value have our ancestors always set
great branch of our liberties, and so jealous have they been of any attempt to diminish it, that when a commission to punish rioters in a summary way was awarded, in the second year of Richard the Second,
it was,' says Mr. Lambard in his Eirenarchą, fol. 305, even in the self-same year
of the same king, resumed, as a thing over hard,' says that writer, to be borne, that a freeman • should be imprisoned without an indictment, or ' other trial, by his peers, as Magna Charta : speaketh ; until that the experience of greater
evils had prepared and made the stomach of the commonwealth able and fit to digest it.
And a hard morsel surely it must have been, when the commonwealth could not digest it in that turbulent reign, which, of all others in our history, seems to have afforded the most proper ingredients to make it palatable ; in a reign, moreover, when the commonwealth seemed to have been capable of swallowing and dige ting almost any thing; when judges were so prostituted as to acknowledge the king to be above the law; and when a parliament, which even Echard censures, and for which Mr. Rapin, with a juster indignation, tells us, he knows no name odious enough, made no scruple to sacrifice to the passions of the king, and his ministers, the lives of the most distinguished lords of the kingdom, as well as the liberties and privileges of the people.
Even in that reign, gentlemen, our ancestors could not, as Mr. Lambard remarks, be brought by any necessity of the times to give up, in any single instance, this their invaluable privilege.
Another considerable attempt to deprive the subject of the benefit of grand juries was made in the eleventh year of Henry the Seventh. The pretence of this act of parliament was the wilful concealment of grand jurors in their inquests; and by it
power was given to the justices of assize in their sessions, and to the justices of peace in every county, upon information for the king, to hear
and determine all offences and contempts (saving • treason, murder, or felony) by any person against • the effect of any statute.'
My lord Coke, in his 4th Institute, fol. 40, sets forth this act at large, not as a law which in his tine had any force, but in terrorem ; and, as he himself says, that the like should never be attempted in any future parliament.
• This act,' says lord Coke, had a fair flattering preamble ; but in the execution, tended diametrically contrary ; viz. to the high displeasure * of Almighty God, and to the great let, nay,
the utter subversion of the common law; namely,
by depriving the subject of that great privilege • of being indicted and tried by a jury of their countrymen.'
By pretext of this law, says the great writer I have just cited, Empson and Dudley did cominit upon the subject insufferable pressures and oppressions. And we read in history, that soon after the act took place sir William Capel, alderinan of London, who was made the first object of its tyranny, was fined two thousand seven hundred pounds, sixteen hundred of which he actually paid to the king, by way of composition. A vast sum, in those days, to be imposed for a crime so minute that scarce any notice is taken of it in history
Our ancestors, however, bore not long this invasion on their liberties; for in the
year of king Henry VIII. this flagitious act was pealed, and the advisers of all the extortions committed by it were deservedly sacrificed to the public resentment.
Gentlemen, I shall mention but two more attacks on this most valuable of all our liberties; the first of which was indeed the greatest of all, I mean that cursed court of Star-Chamber, : which was erected under the same king.
I shall not before you, gentlemen, enter into a contest with my lord Coke whether this court had a much older existence, or whether it first began under the statute of 3 Henry VII. For my part, I clearly think the latter.
I. Because the statute which erects it mentions no such court as then existing, and most manifestly speaks the language of creation, not of confirmation.
II. Because it was expressly so understood by the judges, within five years after the statute was
made, as appears by the year-book of Ở Henry VII. Pasch. fol. 13. Plac. 7.
Lastly, Because all our historians and law writers before that time are silent concerning any such court; for as to the records and acts of parliament cited by my lord Coke, they are most evidently to be applied only to the king and council, to whom, in old time, complaints were, in very extraordinary 'cases, preferred.
This old court, my lord Coke himself confesses; sat very rarely; so rarely indeed, that there are no traces left of its proceedings, at least of any such as were afterwards had under the authority of the statute. Had this court had an original existence in the constitution, I do not see why the great lawyer is so severe against the before-mentioned act of the eleventh of Henry VII. or how he can, with any propriety, call the liberty of being accused and tried only by juries the birthright of an English subject.
The other instance was that of the High Commission court, instituted by parliament in the first year of queen Elizabeth.
This act likewise pretends to refer to an authority in being. The title of it is, ' An Act restor
ing to the Crown the antient jurisdiction,' &c. By which, saith lord Coke, 4 Inst. 325. the nature of the act doth appear, viz. that it is an act of restitution.
And hence the court of Common Pleas, in the reign of James I. well argued, that the act being meant to restore to the crown the antient ecclesiastical jurisdiction, the commissioners could derive no other power from it than before belonged to that ecclesiastical jurisdiction.
But however necessary, as my lord Coke says, 4 Inst. 326, this act might have been at its first creation, or however the intention of the legislature might have been to restrain it, either as to
time or persons, certain it is, that the commissioners extended its jurisdiction in many cases, to the great grievance of the subject, and to the depriving them of that privilege which I have just mentioned to be the birthright of an Englishman.
The uses made of these courts, and particularly under that unhappy prince Charles I. need not be mentioned. They are but too well known. Let it suffice, that the spirit of our ancestors at last prevailed over these invasions of their liberties, and these courts were for ever abolished.
And, gentlemen, if we have just reason to admire the great bravery and steadiness of those our ancestors, in defeating all the attempts of tyranny against this excellent branch of our constitution, we shall have no less reason, I apprehend, to extol that great wisdom which they have from time to time demonstrated, in well ordering and regulating their juries ; so as to preserve them as clear as possible from all danger of corruption. In this light, gentlemen, we ought to consider the several laws by which the morals, the character, the substance, and good demeanor of jurors are regulated. These jurors, gentlemen, must be good and lawful nien, of reputation and substance in their country, chosen at the nonination of neither party, absolutely disinterested and indifferent in the cause which they are to try. Upon the whole, the excellence of our constitution, and the great wisdom of our laws, which Fortescue, my lord Coke, and many other great writers, have so highly extolled, is in no one instance so truly admirable as in this institution of our juries.
I hope, gentlemen, I shall not be thought impertinent in having taken up so much of your time to shew
you the great dignity and importance of that office which you are now assembled here to execute; the duties of which it is incumbent on me concisely