But I would gladly hear the particulars of this Oath a little explained .

Observe then its several Branches .

1. You shall diligently Inquire and true Presentment make ; Hereby they are oblig'd to Enquire , and that diligently , not to be slothful , or negligent , not to take things upon Trust , or hurry them over carelessly ; but to proceed on a mature and strict Examination , and then to make true Presentment .

2. Of all such things and matters as shall be given you in Charge , or shall come to your knowledge . Here is laid down the Subject-matter of their Inquiry . By Matters and Things , must be understood , All offences against the Law by them Inquirable of , As Treasons , Murders , Felonies , Perjuries , Forgeries , Misdemeanours , &c. Which are commonly summ'd up to them in the Speech [ or Charge ] of the Judge . All and every such offences which either they know of their own knowledge , or which shall appear to them by the Testimonies of others , they are to Present .

3. The Kings Counsel , your Fellows , and your own , you shall well and truely keep secret . By the Kings Counsel ( I conceive ) is to be understood , the Evidence of Witnesses that shall be produced to them on the Kings behalf ; This must not be Revealed or Discovered by the Grand Jurors , but kept secret from the Person concern'd , his Friends and all others , the Reason whereof seems to be this ; Their Presentment is but of the Nature of an Accusation , or Charge . Now if they , having heard and Examined the Witnesses should divulge the Particulars , and wherein the Force of the Evidence lies ; Then might the Party prosecuted ( perhaps a Traitor , Muderer or Felon ) take an opportunity to Fly from Justice ; ( For many times the Criminal is not apprehended , or is out upon Bail till after the Bill found by the Grand Inquest , ) or at least there might thereupon be some Tampering or Indirect Practises used to take off , or Sweeten the Evidence when it comes to be Tryed by the Petty Jury .

Nor are they to discover what any one or more amongst themselves have together Counsell'd , advised , or debated in the Business before them . Because the same might discourage particular Members of such Juries from giving freely their Opinions in discharge of their Consciences , and render them liable to Malice , Reflections , &c. And therefore if a Jury be agreed , and the Court perhaps not pleased with their Verdict , should take upon them to ask , Which of the Jury-men were first or most earnest for finding it thus or thus ? I conceive the same and all other Inquiries of that kind to be utterly unlawful ; That the Jurors are not bound by Law to answer thereunto , but oblig'd by their Oath to the contrary .

4. You shall Present nothing for malice &c. Having set forth what they are to doe , the Oath next prescribes with what Integrity and Impartiality they are to do it , excluding all Malice and Revenge on the one hand , and all Favour and Affection on the other .

5. But in all things you shall Present the Truth , the whole Truth , and nothing but the Truth . The Truth ; that is , Truth sufficient to make a just Accusation against a nocent Person . The whole Truth ; not concealing wilfully any Crime that appears to them . And nothing but the Truth ; That is , no known falsity , no false Accusation against any Person must be Presented , to bring an Innocent Person into disgrace and Jeopardy , so as to force him to take a Tryal where it does not appear , That he hath committed any Crime , or where there is not any sufficient Accusation , or where the Fact charged ( If in it self Criminal ) is yet not so fixt upon him by any probable Evidence , as deservedly to expose him to a Tryal for it .

But since the Grand-Jurors are thus sworn to present Truth , and nothing but the Truth ; And yet Experience shows , That very frequently the Party prosecuted is really not Guilty , and so found by the Petty Jury , though the former have presented the Indictment against him to be Billa Vera , a True Bill , I dernand how these Oaths of the Two can consist together , and with a safe Conscience ?

Though there may seem ( primâ facie on first thoughts ) some Contradiction between the two Verdicts , yet really there is none ; But both may be true in their several proper Respects , and safely , that is , honestly given . I may ( for certain weighty Reasons and Proofs that I have considered ) verily believe , That A. B. is Guilty of such a Murder or Robbery , and therefore for the Execution of Justice ( that Glory and Safety of a Kingdom ) I may swear that I believe so , and judge it my Duty to Present him , That he may be Legally Tryed for such Crime ; And yet It may be possible that he is all this while Innocent , And perhaps when I come to hear his Defence , I may think so too ; Yet have I not herein done him , or my own Conscience any wrong .

The Grand Jurors work , I told you , is no more in its own Nature , than to Present Offences which they find fit for a Tryal . They hear only one side , viz. The witnesses against the Prisoner , and do not , nay cannot , hear any thing in his Defence ; Nor to Confront or weaken the Evidence brought against him , and so cannot be intended to give in more than a verisimilary or probable Charge ; which by what they have heard , they do aver upon their Oaths , does seem to them to be Just and true , and fit for Justice to take Cognizance of . And therefore by their Oath you see , they are oblig'd to make true Presentments concerning this present service [ that is , according as the nature of their present Service in the Capacity of a Grand Jury requires ] and also their Oath in the End is qualified , [ According to their best skill and knowledge ] which denotes not an absolute Certainty , but so as things appear .

And for the same Reason it is , That in the Record , The Grand Juries finding a Bill is Entred Juratores pro domino Rege praesentant , The Jurors for our Lord the King do PRESENT ; [ that is , Inform , Charge or by way of Accusation on Just and Reasonable Grounds urge and put to Answer ] But the Verdict of the Petty Jury is Recorded thus , Juratores dicunt , The Jurors positively SAY or Affirm . And when afterwards on Tryal any man is Acquitted or Convicted , The Record runs thus , The Jurors say , That A. B. is Guilty [ or not Guilty ] of the Felony aforesaid in the Indictment aforesaid specified , which Ei superius imponitur , is above laid or Charg'd upon him in manner and form as by the Indictment aforesaid , superius versus eum supponitur , Is above against him supposed . So that you see here , the Law it self Construes the Bill found by the Grand Jury to be only a laying on , or probable Charging of a Crime , and speaks of it but as a supposition ; so that by Billa vera , can only be understood a Bill that appears to have Truth in it , necessary to be tryed , and fit for the Enquiry of another Jury ; The Adjective , Vera , in this place not so strictly signifying True , as meet , fit , or reasonable ; And so 't is used sometimes by Authors , as verum est in Terence , which Grammarians render , it is fit , or you speak Reason .

And therefore on the other side , they never endorse upon those Bills they do not find [ Billa Falsa , that is , a false Bill , ] but modestly write , Ignoramus , which signifies , They are Ignorant of the matter in the Bill , and that they find no Cause either from what they have heard from the Witnesses , or know of their own knowledge to Commend it to a further Inquiry , or to put the party on any Tryal .

If this be all , it seems Grand Jurors need not much scruple the finding of most Bills brought before them .

Not too fast , you have heard by their Oath they are diligently to Inquire ; And these words , Truth and nothing but the Truth , have great weight and Obligation . They must therefore have some knowledge or good probable proof on Oath , on which they verily believe the matter deserving Tryal , and the Party Guilty , or else they cannot in Conscience Endorse a Billa vera . For if they should do it without such just and lawful Inducements , they apparently violate their Oath , and withall are highly Guilty of Injustice towards their Neighbour in preferring a causeless Accusation against him , whereby his Credit is impaired , his Life Liberty or Estate exposed unnecessarily to the hazard , trouble , and charge of a Tryal , &c. Wherein if by any Ill practice with , or the Ignorance of the Petty Jury , he should be Convicted ( when Innocent ) though such Petty Jury would be most Immediately concern'd , yet the Grand Jurors too cannot be Excused from a sad share in the Guilt of the Blood , or Ruine of such an Innocent Person and his Family ; For , Qui non prohibet cum potest , jubet , He that doth not hinder Injustice when it lies in his Power , Commits it ; And it was by reason of their inconsiderate groundless Presentment , and finding Billa vera where they had no Just Cause so to do , that occasion'd the mischief ; For without That , it could never have happen'd .

You have very well satisfied me in these Particulars ; But suppose a Bill should be brought before the Grand-Jury , wherein a man is accused for doing some Act that is in it self no Crime ; Only in the Indictment it is called Treason , Sedition , or Misdemeanor , and said to be done falsly and maliciously , with an Intent to raise Sedition , bring the Government into Contempt , &c. Now if it happen that the particular and Naked Fact be proved , But that the same is Treason , Sedition or Misdemeanour is not declared by any Law , nor yet does it appear by any proof that it was done with any such ill mind , or criminal Intention , what must the Grand Jury do in this Case ?

If the matter charg'd be ( as you put it ) no Crime in it self by Law , then though it be never so much branded with such aggravating terms , yet since the same do in no kind appear to the Jury to be deserved , they must undoubtedly retorn an Ignoramus ; For you have heard , That their work and the main Scope of their Oath , is to Present such matters as appear to them fit for Justice to take Cognizance of ; But where they are satisfied , that there is no such Crime , if they should Endorse a Billa vera , and so put a person , whom in their Consciences they think Innocent , ( because nothing appears to them to the contrary , ) to the hazard , charge and trouble of a Tryal , It were a plain violation of their Oath , and unjust as aforesaid .

But this were for them to take upon themselves the knowledge of the Law ; Now I have heard people say , Juries are only to Judge of matter of Fact .

Jurors are to consider both Law and Fact , or else they will never deliver just and lawful Verdicts . To what purpose does the Law provide , that Jurors should be so well qualified as to Estate , Understanding , and Sufficiency ; And so strictly sworn , but only to detect Offenders , and preserve the Innocent from needless vexation and trouble ? How far Juries are Judges of Law as well as of Fact , is pretty well set forth in a small treatise lately publisht , Intituled , The Englishmans Right , To which ( as well worth every true Englishmans Reading ) I refer you for further Information . Only to satisfie you at present , I shall desire you but to consider of the sad Consequences that would follow , this conceit , That Juries must necessarily find every Indictment where the bare matter of Fact ( be it what it will ) is proved , without Inquiring into , and weighing the Nature of that Fact , or retorning Ignoramus where they find the same Not Criminal .

Suppose a Bill were exhibited against A. B. for Treason , for looking on the Tombs at Westminster , or of high Misdemeanour for taking a Pipe of Tobacco , falsly wickedly and maliciously , with an Intent to Infect the Air , and destroy his Majesties Leige-Subjects with pernicious Vapors ; And it were very fully prov'd , That he indeed lookt upon the Royal Tombs , or did whiff the Pipe ; but nothing of any such design of Poysoning the People thereby , appears in Proof ; Now would you , or any Grand-Jury-man that wears five Senses and a Soul about him , retorn a Billa vera on these Indictments ? And yet here the matter of Fact is prov'd , and by these mens unreasonable Reasonings you should be bound to find it .

Again , Imagine an Indictment brought against a Person setting forth , That he falsly and maliciously and with an Intent to create and foment Rebellion , Sedition , Divisions and Distractions amongst the People of England , did cause to be printed and Published in the English Tongue , a certain Book called , The BIBLE ; And it be proved by an Hundred and Fifty Witnesses , that he did indeed Print and publish the Holy Book , yet would not you rather have your hand Rot off , than with it to Subscribe Billa vera here ? But if this opinion were true , you should be bound to do it , or else be Clamour'd and Hector'd at , as if you were Guilty of the blackest Perjury .

Nor is this any Extravagant Supposal , If ( which God forbid ) Popery should prevail amongst us ; For us not above 150 years since , a poor honest Bookseller was burnt to death at Avignion in France , for no other Crime but selling Bibles in French ; and to denote his Crime , two Bibles were sixt about his Neck , and burnt with him , [ See Foxes Acts and Monuments , fol. 861. ] And here in England K.H. the 8th . on the 8th of July 1546. Issued a Proclamation requiring all English New Testaments to be brought in by such a day to the Constables in every Precinct , and so to the Sheriff to be Burnt ; And that if after such day , any Person should be found to have any such Testament , or any part thereof in his Custody , he should not only suffer Imprisonment and punishment of his body at the Kings Will and Pleasure , but also be Fined at the discretion of any 4 of his Majesties Council .

God defend us from such times . But I pray let us retorn to our Discourse ; I have observ'd , That in Indictments , Informations , &c. There are certain words used which are seldom proved ; As Vi & Armis , Contra pacem , false , malitiose , &c. With Force and arms against the Peace , falsly , maliciously , and the like ; Pray therefore Inform me , Is it a sufficient Cause not to find a Bill , If the Jury have not Proof of These ?

Here lies the Knot , the pinch of the Business , which rightly understood , would silence this Controversie for ever . You must note therefore , that sometimes these words are only of Course , or matter of Form , rais'd by a Just and reasonable Implication of Law ; but sometimes they may be thrust in to raise a pretence or colour of Crime , where there is really none .

The Distinction therefore to be observ'd , is this ; Where the Act , or matter of Fact charged , is in it self a Crime or offence against Law , there the Law does necessarily in Pleadings require and Imply those words ; and If the Jury do find and are satisfied , That the substance of the Charge is such a Crime , and the Person guilty thereof , They are bound to find it , though no direct proof be made of those Circumstantials .

But where the Act , or matter of Fact is in it self I mocent or Indifferent , there the purport of these words is necessarily to be proved , for else there is no Crime , and consequently no fit matter to be put to a Tryal ; In which Case the Grand Jury is bound in Conscience and Law to retorn an Ignoramus ; and a Petty Jury , Not Guilty .

For though some Gentlemen of the long Robe are pleas'd to call these words only , Pepper and Vinegar , harmless sawce ; yet if meerly for them , a Jury should pronounce a Billa vera or a Guilty , where the main dish is good and wholsome , they would become rank poyson , and destroy all the Vital Liberties of the Nation .

What then may be the design , That yet some People plead a Necessity of the Juries finding all Bills , however worded or aggravated , where the matter of Fact ( as they call it ) is proved ?

I do not care whether there be any such People , or any such design . But this I know , That in the 11th year of K. Henry the 7th there was an Act of Parliament obtain'd on very specious Pretences , That Justices of Assize , and of the Peace should have full Power or Information for the King , without any Presentment of a Grand Jury , or Tryal by a Petty Jury , To hear and determine at their Discretion , all offences &c. By pretext of which Law ( saith the Learned Lord Cook , 4 part Institutes , fol. 41. ) Empson and Dudley ( Two Judges , or Justices , for the latter is the Legal Title ) and their followers , did commit upon the Subject unsufferable Pressures and Oppressions . And thereby brought infinite Treasures to the Kings Coffers , whereof the King himself ( saith the same Reverend Author ) in the end repented with great Grief and Compunction ; And the Statute was repealed , and the said False Justices , notwithstanding such their pretended Authority , ( even of an Act of Parliament , yet the same being against Magna Charta and the Fundamental Laws of the Land ) were both fairly Beheaded , and no less than Seven of their little Instruments , Promoters , Informers , or what you please to call them , viz. Canby , Page , Smith , Derby , Wight , Sympson and Stockton , were set on the Pillory , and afterwards ordered to ride through London-Streets with their Faces towards the Horse Tail . With the same whereof the Rogues within 7 days after all dyed in Newgate . See Baker's Chronicle , fol. 254.

Now if there should be any such Design as you talk of , ( which I neither know , nor can beleive ) It must be to do the same thing in Effect by Colour of the Common-Law , which these Villains Empson and Dudley did by Pretence of a Statute-Law ; For what real Difference is there between getting an Information or Indictment drawn by order of certain Justices against a Person , and Condemning and Fining him at their pleasure without any Jury at all , ( which was the Empson and Dudley-way . ) And causing and Indictment or Information stuff'd with hideous terms on an innocent indifferent matter of Fact , to be Presented to two Juries successively ; but withall telling them , they are bound not to consider whether such matter of Fact be indeed any Legal Crime , And so Trepanning ( for I can call it no better , whether it be done by Wheadling or Menacing and huffing , ) the said Juries , to find the Party Guilty ; When in their own Consciences they do not believe he has committed any such Crime . And then shall come the said Justices , and upon such his Conviction , Sentence him to be Hang'd , or to stand in the Pillory , or be Fined so many Hundred Pounds ( much more perhaps than the poor Creature is worth ; so that it amounts to an Imprisonment from which only Death can Bail him : ) And all this for that which is no real Breach of any Law either of God or his Native Countrey .

This indeed were the grossest Injustice , the most horrid scandal that would be cast on the Laws of England , which have been ever Celebrated for the most Equal , Just , and Merciful in the World ; and so much worse than the Practice of Empson and Dudley , because by this means , JURIES would be made use of as Stales and Properties of oppression . But it is not to be supposed , That any Justices should offer , or suffer any such Indictments or Informations to be offered , to any Juries , or attempt to perswade Juries to find them , where the matter thereof is not warranted by Law .

I know not what you can suppose , nor do I complain , That any such thing has been attempted , much less do I speak to disconrage any Just Prosecutions of real Crimes and Misdemeanors ; But I must tell you , That there are very wise men that suppose such things as we have been talking of , may possibly fall out , at least in another Age ; For we are not Assured , That in all Generations there shall never be any Ill men put into Office ; There may one day perhaps happen a little peevish Justice , or a Blustring Magistrate in some Village or other , that may be no mighty Witch at Law , and so ignorantly may promote odd Fantastick Indictments ; or may be a Creature of Ambition , and so willing to serve a Turn for Preferment , and may Endeavour to Hector Juries out of their Rights and their Wits , or a thousand other Accidents . And therefore why should it be left upon a fallible supposal , a meer Hap-hazard , or why must Ill Precedents be given ? The Institution and very End of Juries is to preserve our Liberties from the wily Encroachments of oppression ; And therefore 't is the Right and Priviledge ; nay I will add , 't is the indispensable Duty of Grand and other Juries , to Act like men of Judgment , Conscience and Courage in such Cases . For otherwise they Forswear themselves , grievously injure their Fellow-Subjects , betray the Freedomes of their Countrey , and open a Gapp for Slavery even in that very Hedge , which was purposely first planted , and has time out of mind been so carefully preserved by our Ancestors , to keep it out .

Well , but if Juries do not give their Verdicts as the Court think fit , though the Jurors proceed uprightly according to the best of their Understanding and Consciences , yet may not the Court Fine or Imprison them .

No The Law utterly Condemns any such Practice , as you may see undeniably proved in the before mentioned Treatise , call'd , The English man's Right , p. 24. Nay , if any should presume to Menace or Reproach a Jury for giving their Verdict uprightly according to their Cousciences , It would be an High Misdemeanor ; and such Insolence ought to be Corrected with Exemplary punishment .

Since Juries are so essential to our English Liberties , and of so great Use to the Nation , Is it not great Pitty , That men best qualify'd both for Estates and Understandings for that Service , should oft-times use little under-hand Practises or small Bribes to the Officer that Summons them , to avoid it .

't is both a pitty and a shame if any such thing be done , and ought likewise to be punished ; For thereby Persons every way unfit may at last come to serve turn , and so Verdicts may become Mercinary , and People set up to make a Trade of being Jury-men ; Whereas 't is an Office that the best Commoner in England , is neither too good nor too great to serve his King and Countrey in ; Which I wish all Gentlemen would Consider , and readily dispose themselves to accept the same , when ever they shall legally be call'd unto it .

I thank you , Sir heartily for the Information and good Advice you have given me in this matter , and shall Endeavour to discharge my Duty accordingly , As becomes a Christian , a Loyal Subject , and an upright Protestant Englishman .