other, being presumed to be a small number (as they have anciently been) and to have met yearly, or oftener, in parliament, as by law they ought, besides their other meetings, as the hereditary counsellors 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 parliament's 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 Englishmen, depend upon the conscientious performance of their duty.

It was absolutely necessary for the support of the government, and the safety of every man's life and interest, that some should be trusted to inquire after all such, as by treasons, felonies, or lesser crimes, disturbed the peace, that they might be prosecuted, and brought to condign punishment; and it was no less needful for every man's 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 thought it not best to trust this great concern of their lives and interests in the 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 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 writs 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 lord or commoner: they ought, by the old common law, to be lawful liege people, of ripe age, not over aged or infirm, 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 controversy 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 lawbook, called Briton, of great authority, says, "The sheriff's 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 returned by the sheriff, without the denomi* See Brit. p. 9 and 10.

nation of any, except the sheriff's officers."* And agreeable hereunto was the statute of 11 Henry 4, in these 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 outlawed, &c. and some fled to sanctuary for treason and felony, &c. by whom, as well many offenders were indicted, as other lawful liege people of the king not guilty; by conspiracy, abetment, and false imagination of others, &c. against the force of the common law, &c. It is therefore granted, for the ease and quietness of the people, that the same indictment, with all its dependencies, 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 king's liege 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, the same be also void, and holden for none for ever."+ See also the Statute of Westminster, 2nd cap. 38. and Articul super Cortas, cap. 9.

So careful have our Parliaments been, 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 adjuged in Scarlet's Case.

I know too well, that the wisdom and care of our ancestors, in this institution of grand juries, hath

* See 11 Hen. 4.

+ See Coke's Instit. Sd part, fol. 33.

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 L. Ch. K. who would have usurped a lordly dictatorian power over the grand jury of Somersetshire, and commanded them to find a bill of indictment for murder, for which they saw no evidence; and upon their refusal, he not only threatened the jury, but assumed to himself an arbitrary power

to fine 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 Wyndham, foreman of the said jury, and a member of that parliament, the commons brought the then Chief Justice to the 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, repu tation, estates, and lives of all the nobility of England, are so far submitted to their ensure, that

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they may bring them into question for treason, or felony, at their discretion; their verdict must be entered 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, 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 ruin 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 terror 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 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

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