5 44 
J u 
clerk of the court, or other perfon wliatfoever, can be pre- 
l'ent during the deliberations and decitions of the grand 
jury; but fometimes a deputation of the jury confults the 
court on any mere point of law. 
To eftablifh a charge once made, a profeeutor often 
fwears to things before a grand jury which he fuppreffes 
before a public court; hence doubtlefs it is, that courts 
are often furprifed at the apparently defective evidence on 
which a bill has been found. Except in hackneyed-wit¬ 
nefl'es, as thief-takers, informers, and others, who live on 
conviClion-money, the feparate examination produces a 
falutafy degree of timidity in many witnefl'es. Common 
informers, or profecutors by employment, fliould, however, 
be difcovered by feme leading queltions, afeertaining their 
expeClancy from the conviction ; and their evidence fliould 
then be received with proportionate caution. A grand 
jury fliould fupport their own dignity, and the dignity of 
the laws, by rejecting all bills on trifling, ridiculous, and 
contemptible, charges ; and they ought never to f’uffer 
themfelv.es to be made inftruments for fupporting private 
malice. It fliould be kept conftantly in mind, that all in¬ 
dictments are at the fuit of the king, for offences againff 
his good government, or againff the peace and fecurity of 
the public. As it is the exprefs objeCt of a grand jury to 
decide whether there is any ground of ferious accufation 
againff the party accufed, or whether he ought to be put 
on his trial, they are competent to decide totally on all 
the parts of the charge, both as to faCt and intention ; and 
in matters of libel, murder, &c. a-s the malicious intention 
conllitutes the crime, if this is not proved or made evident, 
the bill ought not to be found. This uncontrouled and 
extenfive power of grand juries, coff^itutes one of the 
chief glories of the conftitution of England, and renders 
it the great bulwark of the liberties of the people. 
As it is a very ferious and folemn matter fora perfon 
to be publicly placed on trial at the bar of a court of juf- 
tice, and as the grand jury .generally hear evidence only 
on the fide of the profecution, the whole cafe ought to be 
clearly and unqueftionably made out by the profeeutor, to 
juffify them in finding a true bill. 
So tender is the law of England of the lives of the fub- 
jeCt, that no man can be lawfully convicted of any offence 
unlefs by the unanimous voice of twenty-four of his equals, 
that is to fay, by at leaft twelve of the grand jury alient- 
ing to the acculation, and afterwards by the decifion of 
the entire petit jury. 
In an indictment for dealing, if the crime is not proved 
againff the thief, the acceffary muff be acquitted as matter 
of courfe ; becaufe, if there is no crime, there can be 
no acceffary. Indictments, therefore, againff principals 
ought to be heard and determined before thole againff 
acceflaries ; but the law makes an exception in regard to 
receivers of ftolen goods. 
The grand jury are l'worn to enquire only for their own 
county ; they cannot, therefore, regularly enquire in re¬ 
gard to a faCt done out of it, unlefs particularly authori¬ 
zed by ftatute. When a man is wounded in one county, 
and dies in another, the offender (by a & 3 Edw. VI. 24) 
is now indictable in the county where the party died ; and, 
(by 2 Geo. II. c. 21,) if the ftroke or poifoning were in 
England, and the death at fea, or out of England, or vice 
verfa , the offenders, and their acceflaries, may be indicted 
in the county where either the death, poifoning, or ftroke, 
refpeCtively happened. When treafon has been committed 
out of the realm, it may be enquired into in any county. 
The following obfervations of Sir R. Phillips muff na¬ 
turally excite great attention and intereft. “ A queftion 
cannot fail to prefent itfelf to every grand juryman, rela¬ 
tive to the omiifion to examine any witnefl'es except againff 
the accufed. He muff be ltruck with the peculiarity of 
the praCtice of examining witnefl'es only on one fide, of 
hearing all who appear for the profecution, and none for 
the profecuted. This circumftance will of courfe fuggeft 
to him the neceflity of finding no bill, unlefs the evidence 
is point blank and indubitable ; for, if the evidence is not 
R Y. 
complete and decifive when it is all on one fide, it will 
make a forry figure when it is fifted in a public court, in 
prefence of the accufed and his counl'el, and oppofed by 
evidence in favour of the prifoner. But it demands con¬ 
federation, how far, in fome cafes, it may not be proper to 
examine witnefl'es in defence. The grand juryman’s oath 
requires him to enquire diligently ; which he cannot be faid 
to do, if he hear only one fide, and the cal'e require him 
to hear both ; and trueQrefentment make ; yet how can he be 
faid to do this, if he refufe to hear both fides ? His pre- 
fentments too are to be the whole truth , and nothing but the 
truth ; yet how can he anfwer for this, if he is but partially 
acquainted with the affair, and has not heard what the other 
party has to fay in his defence ? He is to do this to the bcjl 
of his Jhill ; he will, however, evince very little lkill, or ra¬ 
ther no (kill at all, if he do not fometimes hear both fides 
before he pafs adverfe judgment. A little confideration 
will explain how this practice his arifen. The ancient 
laws of England prefumed every perfon to be innocent till 
he was proved to be guilty. No man, therefore, was bound 
to prove his own innocency ; and the burthen of proof la'y 
on the accufer. Hence, by our ancient practice, as the ac¬ 
cufed was afl'umed to be innocent till proof of guilt was 
brought home to him by his accufer, no witnefl'es were ad¬ 
duced in defence, but the evidence of the accufer, by it¬ 
felf, was left to the jury. In the reign of Mary, this prin¬ 
ciple was departed from, and it was enacted, that evidence 
might be heard in favour of a prifoner, but not on oath; 
but (by the firjl of Anne, cap. 9) it was enaCted, that they 
fliould be heard on oath. Nothing is faid to the contrary ; 
but I conceive that thefe laws apply only to trials before 
the petit jury. The ancient principle of praftice is, how¬ 
ever, departed from by tl\efe ftatutes; and, as no law refrains 
a grand jury from hearing both fides, and the cultom was cre¬ 
ated at firlt by a principle no longer refpeCted, I conceive 
it to be perfectly optional in any grand jury, generally or 
particularly, to hear evidence on both fides. By our com¬ 
mon law, any perfon againff whom an indictment is about 
to be fubmitted to a grand jury, may challenge any of that 
jury for caufe Ihown ; a right, which proves that defen¬ 
dants are not deemed to be excluded from the knowledge 
of what is palling before a grand jury. The practical ufe 
which I defire to make of this doCtrine is, that witnefl'es 
fliould be examined on both fides, x. In cafes of great pub¬ 
lic importance ; 2. In cafes where the evidence is decifive, 
but the crime improbable ; or the perfon charged of fuch 
high rank, that fome extortion may be the objeCt; 3. In 
cafes where men of character are charged with infamous 
crimes; 4. In cafes of crofs bills (chiefly afl'aults), in 
which one bill muff be true, and the other falfe ; and, 5. In 
cafes where the defendants themfelves attend, and tender 
evidence in rebutment of the charge ; and in this halt cafe 
it appears to me that the grand jury cannot ref ufe to hear 
the defendant without breaking their oath.” 
Sir Richard then proceeds to ftate the other duties of grand 
jurymen. “The ftate of the feveral prifons ; the malver- 
l'ation of the gaolers and turnkeys ; the conduCt of all ma- 
gi ftrates ; grofs and fcandalous abufes of any kind ; aCts 
of public oppreflion, however and wherever committed ; 
and all public nuifances; within the county ; are proper 
objeCls for the enquiry, examination, report, and prefent- 
ment, of a grand jury. In walking through the prifons, 
all and every part of which Ihould be viiited, the jury 
fliould fee with their own eyes, and decide on their own 
conviction. Gaolers, and their turnkeys, are wily cha¬ 
racters ; and their mifconduCt will feldom be detected on 
their own admiflions. The fufferings of the prifoners can 
only be known by encouraging them to fpeak out, and 
by affuring them of protection from the refentment ot 
the gaoler, fliould their condition require animadverfion. 
Grand jurors fliould recolleCt, that in their office they are 
conltitutional public cenfors, that the country relies on 
them as fuch, and that, except by their preferment, pub¬ 
lic abufes, nuifances, and oppreftions, may continue and 
efcape with impunity. If the court to which they belong 
