# Respublica v. Shaffer

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OYER and TERMINER &c.
at Philadelphia :
RESPUBLICA verʃus SHAFFER.
A
M‘KEAN, Chieƒ Juʃtice.– Were the propofed examination of witneffes, on the part of the Defendant, to be allowed, the long eftablifhed rules of law and juftice would be at an end. It is a matter well known, and well underftood, that by the laws of our country, every queftion which affects a man's life, reputation, or property, muft be tried by twelve of his peers: and that (illegible text) unanimous verdict (illegible text) alone, competent to determine the fact in iffue. If then, you undertake to enquire, not only (illegible text) what foundation the charge if (illegible text) but, likewife, upon what foundation it is denied, you will, in effect, uturn the jurifdicition of the (illegible text) Jury, you will fupercede the legal authority of the court, in (illegible text) of the competency the queftion, that queftion may be determined by a bare majority, or by a much greater number of your body, than the twelve peers prefcribed by the law of the land. This point has, I believed, excited fome doubts upon former occafions ; but thofe doubts have never ​
1788.
arifen in the minds of any lawyer, and they may eafily be removed by a proper confideration of the fubject. For, the bills, or prefentments, found by a grand Jury, amount to nothing more than an official accufation, in order to put the party accufed upon his trial : ‘till the bill is returned to exculpate himfelf; and we know that many perfons, againft whom bills were returned, have been afterwards acquitted by a verdict of their country. Here then, is the juft line of difcrimination : It is the duty of the Grand-Jury to enquire into the nature and probable grounds of the charge ; but it is the exclufive province of the Petty Jury, to hear and determine, with the affiftance, and under the directions of the court, upon points of law, whether the Defendant is, or is not guilty, on the whole evidence, for, as well as againft, him.–You will therefore, readily perceive, that if you examine the witneffes on both fides, you do not confine your confideration to the probable grounds of charge, but engage completely in the trial of the caufe ; and your return muft, confequently, be tantamount to a verdict of acquital, or condemnation. But this would involve us in another difficulty ; for, by the law it is declared that no man fhall be twice put in jeopardy for the fame offence : and, yet, it is certain that the enquiry, now propofed by the Grand Jury, would neceffary introduce the oppreffion of a double trial. Nor is it merely upon maxims of law, but, I think, likewife, upon principles of humanity, that this innovation fhould be oppofed. Confidering the bill as an accufation grounded entirely upon the teftimony in fupport of the profecution, the Petty Jury receive no baifs from the fanction which the indorfement of the Grand Jury has conferred upon it.– But, on the other hand, would it not, in fome degree, prejudice the moft upright mind againft the Defendant, that on a full hearing of his defence, another tribunal had pronounced it infufficient?–which would then be the natural inference from every true bill. Upon the whole, the court is of opinion, that it would be improper and illegal to examine the witneffes, on behalf of the Defendant, while the charge againft him lies before the Grand -Jury.
One of the Grand Inqueft then obferved to the court, that “ there was a claufe in the qualification of the Jurors, upon which he, and fomr of his brethren, wifhed to hear the interpretation of the Judges– to wit– what is the legal acceptation of the words “ diligently enquire? ” To this the chief justice replied, that “ the expreffion meant, diligently to enquire into the circumftances of the charge, the credibility of the witneffes who fupport it, and, from the whole, to judge whether the perfon accufed ought to be put upon his trial. For, (he added) though it would be improper to determine the merits of the caufe, it is incumbent upon the Grand Jury to fatisfy their minds, by a diligent enquiry, that there is a probable ground for the accufation, before they give it their authority, and call upon the Defendant to make a public defence.”