doubt in particular

no burden, that is unreasonable; and, if any of you cafes (as fome in your fituation have naturally doubted) what ought to be the measure of your care and attendance, you need only ask your own hearts, what degree of them are due to your private affairs of importance.

Next come the fubjects of your inquiry and prefentments under two heads; first, such as may be given you in charge; and, fecondly, such as may come to your knowledge independently of the charge, but relating to the present business, that is, to the legal redress of all publick wrongs, or the administration of criminal juftice. In old times it was ufual, for all the articles of inquiry to be read at fome length as part of the charge, after a general exhortation by the judge; and, if that mode had continued, the latter part of this division, as included in the former would have been fuperfluous; whence we may infer, that the present form of your oath is not of the highest antiquity, though the following member of it be certainly very ancient, and the substance of the whole may be traced back to the time of the Saxon princes.

Of the fecond condition, that you shall keep fecret the king's counsel, your own, and that of your fellows, the meaning might have been expreffed with more perfpicuity. To declare at an improper time, and in an unfit place, what perfons have been indicted, might give traitors, confpirators, and other great offenders an opportunity of abfconding, before they could be apprehended, or impel them perhaps to strike some defperate blow; and such a premature disclosure might defeat the purposes of the law. It appears from the book of Assises, that in the reign of EDWARD the Third a grand juror was indicted as a felon for fuch a discovery, but, as he was acquitted, the law remained undecided; and, though juftice SHARDELOW declared, that in the opinion of fome judges, a discovery by an indictor might be treason (meaning, I presume, where a traitor

VOL. III.

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Th

a traitor had been indicted, and the grand juror intended to facilitate his escape) yet the wifeft judges in latter times have exploded and refuted the doctrine in GEORGE's cafe, and hold fuch a difcovery to be merely a great misprision accompanied with the guilt of perjury. The counsel or purpose, of the king is formally comprised in every profecution: it becomes in part your counfel, when you have unanimously concurred in finding the bill; and, when it has been found by a majority of your whole number, it is their counfel, which the diffentient must not disclose; for a grand juror, therefore, to reveal either his own acts and opinions, or those of his fellows, might have an effect equally dangerous; and, though the generality of your promise might, if its principal scope only were confidered, be restrained to particular cafes, yet it is the fafer way in all cafes, to maintain an impenetrable referve on all business begun or concluded, that is, on the form of the indictment, the evidence in fupport of it, and the fact of its being found or rejected; except when you bring in your bills or have occafion to confult the

court.

Thirdly, you implore the divine help on condition, that you prefent no perfon from hatred, malice, or ill will, nor leave any thing unprefented from fear, favour, or affection. These words are a paraphrase on a stronger and more elegant form preserved in the law of ETHELRED, by which the grand inqueft were compelled to fwear, that they would accufe none, whom they believed innocent, nor conceal any, whom they thought guilty. To be free from partial affections and preconceived opinions, from refentment and from regard, from all prepoffeffions, that might incline you to reject bills, or to find them true, is a duty common to all who are concerned in the administration of justice; and, though different motives are enumerated by way of example, yet the plain intent of the whole fentence is, that, from no motive whatfoever, neither from the darker paffions of envy or wrath, nor from the

amiable

amiable affections of compaffion and benignity, fhall you bring the guiltless into trouble, nor fcreen probable guilt from a full and impartial trial. You will remember and emulate on this occafion the fublime attributes of your guide, the Law, which cannot be more strongly expressed, than in the manly diction of the high minded and eloquent ALGERNON SIDNEY: "The good of a people ought to be fixed on a

แ

more folid foundation than the fluctuating will or fallible under

standing of one or a few for this reafon law is established, which no paffion can disturb. It is void of defire and fear, of luft and 66 anger; it is it is pure dispassionate mind; written reason, retaining some measure of the divine perfection: it enjoins not that, which pleases a weak, frail man, but, without any regard to perfons, commands "what is good, and punishes evil in all, whether noble or base, rich or poor, high or low: it is deaf, inexorable, inflexible.”

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The preceding member of the period containing a negative condition, you are lastly, presented with it in pofitive form; that you shall present all things (not partially, but) truly as they come to your knowledge, according to the best of your understanding. Here we return to the phrafe, with which we began, of a true presentment which you are bound to make, of all things relating to the bufinefs of the feffion, as truly as you are enabled to make it, according to fuch evidence as you have before you, and by fuch an exertion of your intellectual powers, as all sensible men would apply to their own concerns; for fo the law interprets in your cafe the fuperlative beft, not meaning, as in our, (for reafons not applicable to your) that painful and intenfe application of mind, with which a mathematician folves the most abstruse problem, or a judge decides the most intricate caufe. The only remaining doubt is, what the law means by a true presentment; for what the law means, must be the rule of our interpretation, and the measure of your duty. Sir MATTHEW HALE, whom I always name with applaufe, was of

opinion,

opinion, that if probable evidence be given for the king, the grand inqueft ought to find the bill true; for it is but an accufation, that is, the denunciation of a perfon, who, as they verily believe, ought to be tried this opinion has been attacked with some warmth; because the grand jury are sworn, it is faid, to present the whole truth, and, it is added erroneously, nothing but the truth, and ought, therefore to have the fame perfuafion, that an indictment is true, with the petit jury, who take the fame oath. I conceive the opinion of that great judge to be, if we rightly understand it, confonant to law. He could not mean a remote and light probability, or flender furmise, but used the word probable, in a strong and imphatical fenfe, for an approximation to the truth as far as the grand jury can fafely affert it. Probability has many fhades or degrees, from the weakeft, which borders on negation, to the strongest, which touches the confines of certainty; and he uses the positive degree intenfively, as the word diligent is used by the Roman lawyers: that you, who hear only one fide, fhould have the fame persuasion with the petit jury, who hear both fides, is impoffible; and the law requires no impoffibility. Nor is the word true invariably opposed to false, but often, both in popular and technical language, means correct or exact, faithful or just a verdict is true, when it is exactly conformable to the evidence, though many such verdicts have proved, in a strict and logical fenfe, unhappily falfe. To prevent mistakes the word is qualified, in the oath of petit jurors, by the phrase according to the evidence, and in yours by the words as the things fball come to your knowledge. The law intends generally, that the guilty fhall be punished and the innocent justified, but particularly, that you, gentlemen, should find on good grounds a juft accusation, and that the petit jury, having heard both accufation and defence, should weigh the whole evidence and give their verdict, or true Saying, according to the preponderant fcale. LAMBARD applies the word verdict to an indictment, because it is true, as far as evidence on

one

one fide can establish the truth. The refult of my reasoning is, that you should be perfuaded, as far as you have knowledge, that the accufation is juft, and the bill true in fubftance. As to mere form, it is not the intention of the law, that you should precisely ascertain the truth of it: for inftance, the offence must be laid on a certain day before the feffion, which is one day in law; but on what particular day is of no confequence; and what the law pronounces immaterial, cannot be material in confcience of which the law, as we have established, is the guide. Again; the law fuppofes, that atrocious offenders must have abandoned the fear of GOD; yet a wretch, who had abandoned every thing elfe, confeffed before his execution in the north of England, that, in the very moment before he murdered a fleeping man, he meditated on the awfulness of the divine Majesty, and implored on his knees a deliverance from temptation: had fuch a mixture of religion and wickedness been proved before the grand inqueft, they would not surely have thought themselves bound by their oath, to put a negative on the formal phrafe in the indictment. Let us now return to the calendar: when you find a bill for murder or burglary, as a regard for publick juftice, and a tenderness for the party accused, may in many cafes require, you conform to the intention of the law, and are not understood to affert the abfolute verity, but to prefer a just accusation; leaving the petit jury, with the affistance of the court, to ascertain the precife degree of guilt; for it is neither consistent with the strict justice of the law, that a great offence should be stifled, nor with its provident benignity, that a man, who must be acquitted and discharged if his cafe be found fpecially, fhould be liable many years afterwards, when all his witneffes may be dead, to an indictment for a capital crime. Nevertheless, if you believe on the evidence for the profecution, that there was no malice, or that any one ingredient of burglary was out of the cafe, you are at liberty, no doubt, to reject the bills, and to call

for