The Pennsylvania packet, or, The general advertiser — Lancaster, Pa.;Philadelphia, Pa., 1783-01-25 00:00:00, page 2

With refpeft to Adrian's performance, I shall sup
pose the narrative of the case to be true, Irving not
ha I an opportunity of knowing whet er it is or not
ad, that appears to me is, that a writer io Mr Owal 's
paper, had undertaken to censure the cooduA of the
chief justice in two Several indane s, for w ich offence
two indicTmen^ had been preferred to the grand jury,
against Mr. Oswald. Had the ledimon, been fuffici
ent to fuppo[t these bills, all circurr dances confide,-
ed, and the jury returned to *ach a true bill and a
tonvißion ensued, the consequence would have been
at lead this—that one citizen having offended another,
would have been put into the power of the offended
party to punifa him, not according to law but accord
ing to that measure and degree of resentment, which
a wounded pride might dilate.
Adrian fays, " For these falfe and scandalous libels
on the court, and the juflice of the country, which
ought not only to be above l imputation, but free of
Cufpicion ; Mr Oswald was arrefied" &c. Adrian fays,
these libels were falfe, 19 honest and impartial men,
fay upow oath, they are not falfe—notont^pon oath,
but according to Adrian's own declaration, “ after
" keeping the bill two d.ys, aid hearing divers wit
" neffes, as well as to thy publication, as to the falfe
" hood of the charges." —lt app? rs therefore, that
the grand jury did de iberately, and hot hazily or on
warily rejetl tnofe bills. Notwihflanding the oaths
of secrecy taken by the jury, Adrian thinks he h s hit
upon the resigns of their cmdaft : " It is said fays he,
that upon examining several of er persons, it was
made out, feme how, that the printer had been mifin
formed ; thence it was inferred, t at miflake, merely,
involved no guil"—Adrian had just before observed,
that tie juflice of the c untry fhmid not only be
above imputation, but free o' fufpicron.—Now I am
inclined to think that the grand jury for the time,
more nearly represent the juflice of the country than
even the learned judges themselves ; and yet Adrian pre
sumes to aff~rt. that they made out teflimony some t,ow
or other; an i^fi ution at least, that they had a&ed un
fairly : whether t ey did fetor not I shall leave to them
selves to answer—l am not their champion, but shall
proceed to.feledt from Adrian's performance, such doc
trinal patfages as f p em to be ioconfiflent with the t nor
of my old 00k- —" Was there not, fays he, the usual
" probable evidence for an open enquiry by a petit
" jury ? If th're was why fiifle re cause in the cham
" ber of the grand inquefl ?"—Proba le evidence and
Rifle a caufe —what horrid language! are men's li^s,
reputations and fortunes to be hung up on the tenter
hooks of logical probabilities, and is the fair acquittal
of a fellow citizen from a hinous charg to be called a
ftifled caufe!—Oh sovereign pontiff, have mercy upon
us !—but to proceed '< Upon this the chief jufiice
seemingly provoked"—(l hope it was in appearance
only)“ at their irregularities, aft d the grounds on
" which the grand jury had proceeded, and how they
" came to receive witnetfes not admitted by the ccurt?
He told them," &c. This dilated into plain English will
fland thus : gentlemen, you are enjoin'd by y cur oath
and office, diligently toenquire and preh ntment make of
the truth, the w? ole truth, and nothing but the truth,
but remember that you are to shut ears aga^ft all tefti
rnony but such as 1 shall fend you, otherwise you may
perhaps find this fallow innocent of the charge brought
against him ; where as it is my inclination ti at he fhoull
be punished — cc They declined (or, one for tie rell,
" did To) giving any reaf ns for their conduct , under
" pretence that they were (worn not to reveal tne
" secrets of tee flats, or their fellows, as if this oath
" retrained them ''— drian promises, Gthat he will
take another opportunity to shew the public " the true
" nature and confutation of a grand jury, that part of
" legal machinery composed of unlearned men. to use
“ the phr feology of the profeffion, which is regulated
" and comptroled by the law as other juries, at eve,
" ry Rep and in every infiance of their trufi, and sub
" mitted to the legal direction of the court " —Observe
reader with how little reverence his holiness speaks of
In the preface to this beck we are told, " The main
" and principal design of making this following coj
" lesion, was to preserve entire in this fecund volume,
" some other excellent trails, of equal esteem and va
" lue with the former, (which made that book so much
'' obtain among the learned and curious, as that the
t'whole impression of it is already near fold.) And as
" it cannot but be very entertaining to us in the read
" ing of them, who do yet so sensibly remember what
“ we th^n felt, and looked for wotefe to fall on us every
“ day than other, so it will certainly be of gr at be
" nefit and advantage to our posterities in future who
" may considerably profit themselves by our misfor
" tones
" This is acolleaion, that in the general will set forth
" the true and legal conflitution of our ancient famous
'' English government. — In particular here will be seen,
" the trufi, power and duty of grand juries, and the
" great security of Englishmen's lives, m their faith
“ ful difeharge thereof"
foM; and as it concerned the politics of one Ignored
years ago, and as our family were no politicians, it
had bin for a long time neglected, on the upper fhelf
of a closet. I recollected however, that about 12 or 14
years ago, in an idle hour, I uad taken up this book,
and read a piece therein, re/pe^ing the power and du
ty of grand juries.
1 hope our new pope Adrian, is not more infallible
than I is predecessor of the fame name; if he is, my
author, and confequentlymyfelf are much mistaken,
1 fhall.not pretend to fay, which is most to be d pend
ed upon ; but as the doctrine refpefts a very important
right of the people, shall romraft the two authors to
getter, and leave the decision to abler judges.
State Trade, being a collection of feviral choice
treatises elating to government, from the year 1660 to
1689; and the piece therein, which had attracted my
particular attention, is entitled, “ The Security of
Euglifhmen's Lives, or rheTruu, Power and Duty of
the Grand Juries of England, explained according to
toe Fun lament, is of the Fnjilh Government, and tl e
Declarations of the fame, made in Parliament by many
Statutes.''
The book I refer to is entitled
ought: nor the laws concerning them duly observed;
nor hive the gentlemen, nor other men of estates in the
several counties, disce r ned how insensibly their
legal power and jurifdiHion, in their grand and petit
j mi s, 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
re ett^mp's of the late L. Ch. K. who would have
usurp-d a lordly, dictatorial power over the grand
jury of Somerfeffhire, and commanded them to 60J a
bill'of indißment for murder, for which they saw no
evidence ; and upon th-ir refufal, he no+ only threat
enel the jury, but assumed to himfelf an arbitrary
power to find th^m "
" Here was a bold battery made upon the ancient
fence of our reputations and lives: if that lattice's
will had pass d for la w, all the gentlemen of t e grand
jury must have been the based vassals to the judges,
and have been penally obliged, jurare in >erba magif
tri, to have fvorn to the directors or dilates of the
jud es: but thanks be to God, t e la*e long parity
ment (though filled with penfionerr) could 'not bsr
fu.h a b?ld invasion of the Engbfh bber'y ; but upon
the complaint of one fir Hugh Win iham, foreman of
the said j ry, aid a member of t at parliament, the
commons brought the then chief judice to their bar,
to acknowledge his fault ; whereupon the prosecution
ceased." —
gain or any hope thereof; but in all things you
shall pr-sent the truth, the whole truth and nothing
bit t e truth, to the befl of your knowledge :-. So
help you God -Hence it evidently appears, that
every grand jury is bound to enquire diligently after
the truth of evry thi g for which they thall indift or
pref nt a mat." -<• When a grand-jury is (worn to
enquire dil-gently, i- is ntural and necessary to their
business, to think of whom they should enquire : and
it is plainly and easily resolved, that they ou/ht to
enquire of every min that can or will inform them "
the fecund mid refpeaable body in our comn unify;
link reier-cce indeed is their due, if they are no more
tl.au what emak^s them out to be—and I with to know
*hdt trust can be laid to be committed to a body of
men who art to be regulated and comptrolled in every
flep, and io ever y mA^nce.—Lui it is time to contrast
these modern doctrine-, and this adrianatic idea of a
grand jury, with f left passage from an author in the
:fl century.
He firft speaks of the laws and governm ntjof England,
n a general view and gives the cot ftruftion of grand
by him, nor in any certain number of men during life,
left they should be awed or influenced by great men,
corrupted by bribes, batteries or love of power, or
become negligent or partial to friends and relations, or
pursue their own quarrels or private revenges ; or con
nive at the conspiracies of others, and indict thereup
on."
He then goes on to fh*w, what fort of men a grand
jury ou,it to be composed of, and in what character
the law confiders them, viz, men " most noneft and
mol fufficient for knowledge and ability of mind and
edue,"and n ,t according to th? phraseology of Adri
an, a lega! machine, composed of unlearned men.
" I know too well, fays my author, that the wif
dem and care of cur anceflors, io this irflitution of
grand juries, hath not been of late considered as it
and pttit juries, but hys, “ It is not d signed at this
" time to undertaxe a difeourfe of petit juries, but to
'' conli ler the nature and power of grand inqwefts;
" and to (hew how much the rputa ion, the fortunes,
"and the lives of Englishmen depend on the confeien
" tious performance of their duty.
“ ft was absolutely necessary for rhe support of go
veromn and the fafety of every man's hfe and inter< ft,
that feme should be entrustd to enquire after ail such
as, by treasons, felonies, or lefler crimes disturbed the
peace, that they might be prosecuted and brought to
condign ?uuifhmedt: and it was no less needful for
every man's quiet and fafety, that the trust of fu h
iuqufitions should be put into the hands of persons of
unl Titandingand integrity, indifferent and impartial,
that might fu"er no man to be fahely accused or defam
~d nor the lives of any to be put m jeopardy, by tie
ma iiion- confpi r acics of great or fma'd, or he perjuries
of anv profligate wretches For t efe neo ffary, no
ned euds was the inflitution of grand juries.
“ Our ancestors thought it not best to trust this
great concern of their lives and interests in the hands
of any officer of the king's or in any judges named
" The grand juries are trailed to he the principal
means of preserving the p ace of the whole kingdom
by their w:fdom, diligence and faithuTnefs in making
enquiries—The courts or judges are to receive only
from the grand inquefl, all capital niatters whitfoever
to be put in issue—they a r e to search out tee truth of
such informations as com: b fore them, and to rejeft
the indiHment if nob fufficiently proved."—
" Grand juries are pur only fecurdy, inasmuch as
odr lives cannot be drawn into jeopardy by all th'
malicious crafts of the devil, unless pch a number of
our honest countrymen shall be fatisfied in the truth of
the ace . fation."
'' Tl erefore evry grand-juryman is sworn as the
foreman, in the words following, viz.—You shall di
ligently. enquire and true preferment make of all such
articles, matters and things as shall be given y^u in
charge ; and of all other matters and things as shall
came to your own knowledge, touching this present
f-rvice The (king's) counsel, your fllowsand your
own, you fhdl keep secret : you fn II present no per
son for hatred or ma'ice ; neither shall you leave any
one unprefemed for favour or affeHion, for love or
" It seems, therefore, from the words of the oath,
that there is no bound or limit set (save their own
understanding or confeience) to any number or fort of
perfins of whom they are bound to enquire; they
ought firft and principally to enquire of one another,
mutually, what knowledge each of them hath of any
matters in queflion before them : the law perfumes,
that some at lea f! of so many Sufficient men of a coun
ty, mud know or ; ave heard of all notable things
done against the public peace." “If the parties
andthe faffs whereof they are accused, be known to
the jury, or any es them, their owa knowledge will
'' ifi should be aid, that whatsoever reasons there
are for this oath of secrecy, yet it cannot deprive the
king of the benefit of having the evidence made pub
lic if he desires it; and that the grand jury do not
break their oaths when the king, or the prosecutor for
him, will have it so: 7 tis not h.rd to (hew, that such
notions h ve no foundation in law or reason, and seem
to come from men w b o have not well studied the firft
principles of the Enghfn government "
' It ought to be taken for c scandal upon the king,
when he is represented in a court of justice, as if he
were partially concerned, or rather inclined to desire,
that a party accused should be found guilty, than that
he should be declare+innocent, if lie be so in truth."
' Qpeen Elizabeth had the true sense of our law,
wl en the lord Burleigh, upon fir Edward Coke, her
then attorney's, coming into her presence, told ber, this
is he who prosecutes pro domina regina, for our lady,
the qu p en ; and she said, she would have the form of
the records altered • for it should be. attornatus ger.e
ralis, qui pro domina veritate sequitur—the attorney
general who profecu+es for our lady, the truth."
" r^e law having entrud+d the grand inquefl in a
fpecid manner, with the good name (of hr fubjed)
thy are therefore not only to enquire, whether the
,faR that is laid was done by the party accused, but
into the rrcumflaßCfs thereof too; whether it were
done traiteroufly, felonioufly, maliciously, &c. ac
cording '0 the manner charged :,which circumflances
ar" not barely matter of form, but do conflitute the
very (Fence of the crime." —
Supply the room of man, witnefa. Next they ought
to enquire of all such witnesses as the prosecutors will
produce against the accused: they are bound to ex
amine all fully and prudently to the best of their Ikill.
Every jury-man ought to aik such queflions (by the
foreman, at leaf!) as he thinks necewary to resolve a
ny doubt that may arise in him, either about the
fad or the witnesses, or otherwise: if the jury be
then doubtful, they ought to receive all such farther
testimony as shall be offered them, and to fend for
finch as any of them do think able to give teflimony in
the case depending." “No d regions can legally
be imposed upon them by any court or judges. An
honest jury wII thankfully accept good advice from
judges, as they are aififtaots : but they are bound
by their oaths to present the truth, the whole truth
and nothing but the truth, to the best of their own,
not the judge'?, knowledge: neither can they, without
breach of that oath, resign their cbnfciences, or blind
ly submit to the dilates of others; and therefore
ought to receive or reject such advices, as they judge
them good or ban."—“ The language wherein the
oath is penned, is known and understood by every
man, and t e words in it have the fame Unification
as they have wheresoever they are used. Tee judges,
(without assuming to themselves a legislative power)
cannot put a new sense upon them, other than accord
ing to their g.nuine, common meaning. They can
n it qiagifterially impose their opinions upon the ju
ry, and make them forfake the direct words of their
oath to pursue tueir Hoffes."-- “ Nor are the jury
tied up to enquire only of such crimes as the judges
shall rhink fit to givethem directly in charge; much
hfs of such bills only as shall be offered them ; but
th^ir enquiry ought to extend to all othe ~ matters and
things wuich thall come to their knowledge, touching
the present service."- -“ They are carefully to ex
amine what fort of men the witnesses are "- -" It is
undoubtedly law which w° find reported in Stiles:
that though there be witneff*# to prove he bill, yet
the grand inquefl is not bound to find it, if they fee
cause to the contrary:- -(Stiles report m)
My author then confiders the nature and intent of
the (ecrecy imposed on every grand juryman by bis
oath ; which i< chiefly to prevent combinations of wit
nesses, efca pea of the gui/ty, and conspiracies against
the accused.
“ Now suppose a man perfectly innocent, and in
some measure knowing in thelaw, ffiould be accused of
treason cr felony if the judges fhd| deny unto 'the
grand jury the liberty < f exam nine any witness, ex
cept in open court, where nothing shall be offered that
may he'p to clear the prifo^r, but eery thing aggra
vated that gives colour f r the accusation, such f er
fon- only produced as the king's council, or the prosecu
tors sh b t ink fit to call—how can innocence secure
any man from being arraigned ?"
" few men ar firfi fee the danger of little changes
in fundamentals, and thote who design them usual
ly aH with so much craft as, besides the giving specious
reafns, tiny take great care that the true reason shall
not appear: every drfign therefore of changing the
confutation ought 10 be moil warily observed, and
timely opposed."
" There are two vulgar errors concerning the duty
of grand juries; which i not removed will in time ds
ftroy all the benefit we can ex peflfrom that constitu
tion, by turning them into a mere matter of form,
which were defined for so great ends. Many have of
lae thought and affirmed it for law, that the grand jury
is neither to make so flrift enquiry into masters before
them, nor to look for so clear evidence of the crime as
the petit jury; but that their presentments, being to
paf< a f coed examination, they ought to indict upon
a fuperhcial inquiry, and bare proba # ilities ; whereas,
sh mid either of i^efe opinions be admitted, the preju
d ce to th^fubjea wou d be equal to the total laying
afi le grand juries; there being in truth no difference
between arraigning without any prefentmeot from them
at all, and their preferring u pon flight grounds."
" For the firft, that grand juries ought not to make
so Prick enquiry, it were to be wished, that we might,
know how it comes to pab, that an oat^ should be
obligatory unto a petit jury a< d not unto the grand." —
" The truth is, that the grand juries have both a
larger field for their enquiry, and are in many re
fpeHs better capacitate I to make a firid one, than the
petit juries. These last are confined as to the person
and the crime fpecffied in the indiftent ; but they
are at large obliged to search into the whole matter
that any ways concerns every case before them."— The
p:tit jury are '< bound to move within the circle of the
nidiftment made by the grand jury."-'Tis true, that