The doctrine, that a grand jury may rest satisfied merely with probabilities, is a doctrine dangerous as well as unfounded: it is a doctrine, which may be applied to countenance and promote the vilest and most oppressive purposes it may be used, in pernicious rotation, as a snare, in which the innocent may be entrapped, and as a screen, under the cover of which the guilty may

escape.

It has been alleged, that grand juries are confined, in their inquiries, to the bills offered to them, to the crimes given them in charge, and to the evidence brought before them by the prosecutor. But these conceptions are much too contracted: they present but a very imperfect and unsatisfactory view of the duty required from grand jurors, and of the trust reposed in them. They are not appointed for the prosecutor or for the court: they are appointed for the government and for the people: and of both the government and people it is surely the concernment, that, on one hand, all crimes, whether given or not given in charge, whether described or not described with professional skill, should receive the punishment, which the law denounces; and that, on the other hand, innocence, however strongly assailed by accusations drawn up in regular form, and by accusers marshalled in legal array, should, on full investigation, be secure in that protection, which the law engages that she shall enjoy inviolate.

The oath of a grand juryman-and his oath is the commission, under which he acts-assigns no limits, except those marked by diligence itself, to the course of his inquiries: why, then, should it be circumscribed by more contracted boundaries? Shall diligent inquiry be

enjoined? And shall the means and opportunities of inquiry be prohibited or restrained?

The grand jury are a great channel of communication, between those who make and administer the laws, and those for whom the laws are made and administered. All the operations of government, and of its ministers and officers, are within the compass of their view and research. They may suggest publick improvements, and the modes of removing publick inconveniences: they may expose to publick inspection, or to publick punishment, publick bad men, and publick bad measures.

The relative powers of courts and juries form an interesting subject of inquiry. Concerning it, different opinions have been entertained; and it is of much consequence, in the study and in the practice too of the law, that it be clearly and fully understood. I shall treat it in the same manner, in which I have treated other questions of great importance: I shall examine it historically and on principle.

From a statute made in the thirteenth year of Edward the first, usually called the statute of Westminster the second," it appears, that the contest between judges and juries concerning their relative powers ran, at that time, in a direction very different from that which it has taken since. The judges, then, were disposed to compel the jury to find the law as well as the fact: the jury were disposed to show the truth of the fact only, and to refer to the court the determination of the law. The statute interposed, and declared the discretionary power of the

■ C. 30.

jury to do which of the two they thought most proper. "It is ordained, that the justices assigned to take assizes shall not compel the jurors to say precisely, whether it is or is not a disseisin." A general verdict of this kind included the question of law as well as the question of fact. “It is sufficient that they show the truth of the fact, and pray the assistance of the justices. But if they will voluntarily say, whether it is or is not a disseisin, their verdict shall be received at their own peril."

This statute recognised the law as it then stood, but introduced no new law. We are informed by my Lord Coke, in his commentary on it, that in all actions, real, personal, and mixed, and upon all issues joined, general or special, the jury might find the special matter of fact pertinent and tending only to the issue joined, and might pray the discretion of the court for the law. This the jurors might do at the common law, not only in cases between party and party, of which the statute puts an example of the assize; but also in pleas of the crown at the suit of the king. This statute, therefore, like many others of the ancient statutes, is only in affirm ance of the common law. P

Bracton, who wrote in the reign of Henry the third, tells us, that a distinction was commonly taken between the provinces of the judges and jurors in this mannertruth is to be displayed by the jury; justice and judgment by the court. Yet, says he, it seems that judgment sometimes belongs to the jurors, when they declare upon their oath, whether such a one disseised or did not disseise such a one; according to which declara

• 2. Ins. 425, P 9. Rep. 13.

9 Bract. 186 b.

tion, the judgment of the court is rendered. But, adds he, as it belongs to the judges to pronounce a just judgment, it is incumbent on them diligently to weigh and examine what is said by the jury, that they themselves may not be misled by the jury's mistakes.

We have the high authority of Littleton, that, in cases where the jury may give their verdict at large-in other words, a special verdict, stating the facts, and praying the decision of the court as to the law-they may, if they will take upon them the knowledge of the law, give their verdict generally, as is put in their charge."

In a case determined in the reign of Queen Elizabeth, it was objected, that a jury could not give a special verdict upon a special and collateral issue; but that, in such case, the jury ought to give a precise and categorical answer to the question arising from such special issue. It was resolved, however, unanimously by the court, that the law will not compel the jurors to take upon them the knowledge of points in law, either in cases of property, or in those which concern life; and that it will not compel even the judges to give their opinions of questions and doubts in law upon the sudden; but, in such cases, the truth of the facts should be found; and, after consideration and conference, the question should be determined according to the law.

S

In the famous trial of John Lilburne, for publishing a book, entitled, an impeachment of high treason against Oliver Cromwell, we hear a language, very different from that, to which we have hitherto been accustomed.

Lit. s. 368. 1. Ins, 228.

9. Rep. 11. b. 13.

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u

"Let all the hearers know" said Mr. Justice Jermin, a judge of the upper bench, as it was called during the commonwealth, and who was one of the commissioners appointed in the extraordinary commission of oyer and terminer for the trial of Mr. Lilburne-" Let all the hearers know, the jury ought to take notice of it, that the judges, that are sworn, that are twelve in number, they have ever been the judges of the law, from the first time that ever we can read or hear that the law was truly expressed in England: and the jury are only judges, whether such a thing were done or no; they are only judges of matter of fact." Lord Commissioner Keble delivers it as the opinion of the court, that "the jury are judges of matter of fact altogether; but that they are not judges of matter of law." " The prisoner urged the authority of my Lord Coke, that the jury were judges of the law as well as of the fact; but, by a mistake, mentioned the book as a commentary upon Plowden instead of Littleton. The court told him there was no such book; that they knew it a little better than he did. He pressed to read it; and said that it was an easy matter for an abler man than him, in so many interruptions as he met with, to mistake Plowden for Littleton. "You cannot"-these are the words of Judge Jermin, as mentioned in the report of the trial-" you cannot be suffered to read the law: you have broached an erroneous opinion, that the jury are the judges of the law, which is enough to destroy all the law in the land; there was never such a damnable heresy broached in this nation before." Mr. Lilburne persisted, however, and read his authorities.