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to open to you; and this I shall endeavour in the best manner I am able.
The duty, gentlemen, of a grand juror, is to inquire of all crimes and misdemeanors whatsoever, which have been committed in the county or liberty for which he serves as a grand juror, and which are anywise cognizable by the court in which he is sworn to inquire.
And this inquiry is in a twofold manner, by way of indictment and by way
presentment. Which two words Mr. Lambard, fol. 461, thus explains :
A presentment, says he, I take to be a mere determination of the jurors themselves ; and an indictment is the verdict of the jurors, grounded upon the accusation of a third person ; so that a presentment is but a declaration of the jurors, without any bill offered before ; and an indictment is their finding a bill of accusation to be true.
The usual method of charge hath been to run over the several articles, or heads of crimes, which might possibly become subject to the inquiry of the grand jury.
This we find in Bracton, who writ so long ago as the reign of Henry II. was the practice of the justices in Eyre, l. iii. c. !. And my lord Coke says, 4 Inst. 183, that the charge to be given at the sessions of the peace consisteth of two parts; laws ecclesiastical for the peace of the church, and laws civil and temporal for the peace of the land. And Mr. Lambard, in bis Eirenarcha, gives the whole form of the charge at - length, in which he recapitulates every article which was at that time inquirable in the sessions.
But, gentlemen, I think I may be excused at present from taking up so much of your time ; for though we are assembled to exercise the jurisdiction of a very antient and honourable liberty, yet, as
there is another sessions of justices within that county of which this liberty is a part, before whom indictments for all crimes of the deeper dye are usually preferred, it seems rather to savour of ostentation than utility, to run over those articles which in great probability will not come before you.
And indeed a perfect knowledge of the law in these matters is not necessary to a grand juror; for in all cases of indictments, whether for a greater or lesser, a public or private crime, the business of a grand jury is only to attend to the evidence for the king; and if on that evidence there shall appear a probable cause for the accusation, they are to find the bill true, without listening to any circumstances of defence, or to any matter of law.
And therefore my lord Hale, vol. II. fol. 158, puts this case : ' If A. be killed by B. so that the
person of the slayer and slain be certain ; and a • bill of murder be presented to the grand jury,
regularly they ought to find the bill for murder, ' and not for manslaughter, or se defendendo; be
cause otherwise offences may be smothered with out due trial ; and when the party comes on his trial, the whole fact will be examined before the
court and the petty jury; for if a-man kills B. in « his own defence, or per infortunium, or possibly in executing the
process of law upon an assault made ' upon him, ot in his own defence on the highway,
or in defence of his house against those that come to rob him (in which three last cases it is neither felony nor forfeiture, but, upon not guilty pleaded, 'he ought to be acquitted); yet if the grand inquest ' find an ignoramus upon the bill, or find the special
matter, whereby the prisoner is dismissed and dis! charged, he may nevertheless be indicted for mur
der seven years after;' whereas, if upon a proper Finding he had been acquitted he could never afterwards be again arraigned without having the plea of autrefoits acquit.
This doctrine of the learned chief justice you will apply to whatever case may come before you; for wherever you shall find probable cause, upon the oaths of the king's witnesses, you will not discharge your office without finding the bill to be true, shewing no regard to the nature of the crime, or the degree of the guilt ; which are matters proper for the cognizance and determination of the court only.
I must not, however, omit, on the authority of the last-mentioned judge, H. P. C. ii. 157, that • if, upon the hearing the king's evidence, or upon
your own knowledge of the incredibility of the witnesses, you shall be dissatisfied, you may then return the bill ignoramus.'
It is true my lord Hale confines this to indictments for capital offences; but I see no reason why it may not be extended to any indictment whatever.
One caution inore occurs on this head of indictment, and it is the duty of secrecy. To have revealed the king's counsel disclosed to the grand jurors was formerly taken to be felony; nay, justice Shard, in the 27th year of the book of assizes, Placit. 63, doubted whether it was not treason; and though at this day the law be not so severe, yet
is this still a very great misdemeanour, and fineable as such, and is moreover a manifest breach of
I come now, gentlemen, to the second branch of your duty, namely, that of presenting all offences which shall come to your knowledge.
And this is much more painful, and of greater difficulty than the former; for here you are obliged, without any direct accusation, tó inform yourselves as well as is possible of the truth of the fact, and in some measure likewise to be conusant of those laws which subject offences to your presentnient.
Upon this head, therefore, I shall beg leave to remind you of those articles which seem to be most worthy of your inquiry at this time ; for indeed it would be useless and tedious to enumerate the whole catalogue of misdemeanours that are to be found in our statutes ; many of which, though still in force, are, by the changes of times and fashions, become antiquated, and of little use. Cessante ratione legis, cessat et ipsa lex; and there are some accidental and temporary evils which at particular seasons have, like an epidemic distemper, affected society, but have afterwards disappeared, or at least made very faint efforts to corrupt the public morals. The laws made to suppress such, though very wholesome and necessary at the time of their creation, become obsolete with the evil which occasioned them, and which they were intended to cure. But, gentlemen, there are evils of a more durable kind, which rather resemble chronical than epidemic diseases; and which have so inveterated themselves in the blood of the body politic, that they are perhaps never to be totally eradicated. These it will be always the duty of the magistrate to palliate and keep down as much as possible. And these, gentlemen, are the misdemeanours of which you are to present as many as come to your knowledge. And first, gentlemen, I will remind
presenting all offences committed immediately against the Divine Being; for though all crimes do include in them some degree of sin, and may therefore be considered as offences against the Almighty; yet there are some more directly levelled at his honour, and which the temporal laws do punish as such.
And, 1. All blasphemous expressions against any one of the Sacred Persons in the Trinity are severely punishable by the common law; for, as my lord
in Taylor's case, 1 Vent. 293. 3 Keb. 607.621. S.C. Such kind of wicked blasphemous
words are not only an offence against God and * religion, but a crime against the laws, state, and
government;' and in that case the defendant for blasphemy, too horrible indeed to be repeated, was sentenced to stand three times in the pillory, to pay a great fine, and to find security for his good behaviour during life.
In like manner, all scandalous and contemptuous words spoken against our holy religion are by the wisdom of the common law made liable to an indietment; for ‘Christianity' (says that excellent chiefjustice, in the case I have just cited) ‘is parcel of the
laws of England; therefore to reproach the Christ
ian religion is to speak in subversion of the law.' And to the saine purpose is Atwood's case, in Cro. Jac. 421, where one was indicted before the justices of
peace for saying, that the religion now professed was a new religion within fifty years, &c. For as to the doubt concerning the high commissioners started in that case, and then, as it appears, over-ruled, that is now vanished.
Nor are our statutes silent concerning this dreadful offence ; particularly by 1 Eliz. c. 2. sect. 9. a severe punishment is enacted for any person who shall, in any interludes, plays, songs, rhymes, or by other open words, declare or speak any thing in derogation, depraving or despising the Book of Common Prayer, &c.
Mr. Lambard, I find, mentions this act in his charge, though the execution of it be in the counties confined to the justices of Oyer and Terminer, and of assize ; but the 22d sect. of the statute seems to give a clear jurisdiction to this court, at two of our quarter-sessions.
The last offence of this kind which the wicked tongue of man can commit is by profane cursing and swearing. This a sin expressly against the law delivered by God himself to the Jews, and which is