THE SECURITY

OF

ENGLISHMEN'S LIVES,

&c.

THE principal ends of all civil government, and of humane society, were the security of men's lives liberties and properties, mutual assistance and help each unto other, and provision for their common benefit and advantage; and where the fundamental laws and constitution of any government have been wisely adapted unto those ends, such countries and kingdoms have increased in virtue, prowess, wealth, and happiness; whilst 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 welter in each others blood in their masters' quarrel for dominion; and at best they have served like beasts of burthen, and by continual base subserviency to their masters' vices, have lost all sense of true religion, virtue, and manhood.

Our ancestors have been famous in their generations for wisdom, piety, and courage, in forming and preserving a 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 prince's conduct; entrusting, nevertheless, an ample power to their kings, and other magistrates, that they may do all the good, and enjoy all the happiness that the largest soul of man can honestly wish; and carefully providing 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 birthrights, and turn the points of our swords (our laws) into our own bowels; they have impudently scandalized our parliaments with designs to overturn 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 ancient laws, but through them to blast the repute of parliaments themselves, and to lessen the people's confidence in those great bulwarks of their religion and government.

The present purpose is to shew, how well our worthy forefathers 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, murderers, and the like; but the secret poisonous arrows that fly in the dark, to destroy the innocent by false accusation and perjuries. Our law-makers foresaw both their dangers from the malice and passion, that might cause some of private condition to accuse others falsely in the courts of justice; and the great hazards of worthy and eminent men's 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 dependent upon them for their honour and great revenue, or by bribing and hiring men of depraved principles, and desperate fortunes, to swear falsely 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 Christ: they had heard of Ahab's courtiers and judges, who, in the course and form of justice, by false witnesses, murdered Naboth, because he would not submit his property to an arbitrary power. Neither were they ignorant of the ancient Roman histories, and the pestilent false accusers that abounded in the reign of some of those emperors, 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

people's 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, no man's life should be touched for any crime whatsoever, save by the judgment of at least twentyfour men; that is, twelve, or more, to find the bill of indictment,* whether he be a peer of the realm, or commoner; and twelve peers, or above, if a lord; if not, twelve commoners, to give the judgment upon the general issue of not guilty joined; of these twenty-four, the first twelve are called the grand inquest, or the grand jury, for the extent of their power, and in regard that their number must be no more than twelve, sometimes twenty-three or twenty-five, never were less than thirteen.t Twelve whereof, at least, must agree to every indictment, or else it is no legal verdict; if eleven of twenty-one, or of thirteen, 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 always been the custom and practice of these juries, upon all general issues, pleaded in cases civil as well as

* See Lord Coke's Instit. 3d part p. 40.

+ See Magna Charta, Coke's 2nd part of Instit. p. 50. 51.

criminal, to judge both of the law and fact. 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 joined and tried, in the principal case, whether the issue be about 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 implicit faith in the judgment of the court, to which none can oblige them against their wills.*

These last twelve 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 twelve must agree to the verdict freely, without compulsion, fear, or menace, else it is no verdict. Whether the case of 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 of each others lives, and alternately taste of subjection and rule; every man being equally liable to be accused, or indicted, or 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

* See the Reports of the Lord Chief Justice Vaughan, p. 150, 151.