GENTLEMEN of the Grand Jury: We are met here together in Order to maintain the just Rights of the People of the County. The bare Mention of the Word Rights always strikes an Englishman in a peculiar Manner. — But, in Order to support and defend the Rights, of which we are so fond, we ought to have a just Apprehension of what they are, and whereon they stand. I do not intend to go very largely into the Matter, but only touch upon a few Fundamental Principles on which those Rights all stand.
As Men, in our natural Capacity, we have a [307]*307Right to do as we please, without any Controul whatever; but, as Members of Society, we are abridged of this our natural Liberty, and are obliged to submit to the Laws of the State. Now, as the End of Society is to preserve to us that Security in our Persons and Property which we could not have in a State of Nature, we are under a Necessity of giving up some of our original Rights, in Order to a full Enjoyment of the Remainder. And the bed: Constitution of Government must certainly be that, in which we part with the sewest of our natural Rights; — that is, where we part with no more than is absolutely necessary to attain the very Ends of Society and Government. — All this is obvious on the first Mention. The Constitution of Government, under which we have the Happiness to live, is, therefore, the most happy, because we have never yielded up more of the private Rights of Individuals than was needful to invest the Government with Power sufficient to protest us as Citizens. — It is, therefore, the Duty of every good Citizen, who is bound to preserve the Laws of the State under which he lives, to apply to the Legislative Body for a Redress of all Grievances which arise from the Laws. To aim at a Redress in any other Way is to bring Everything into Confusion.
We, Gentlemen, who are to execute the Law, are not to enquire into the Reason and Policy of it, or whether it is constitutional or not; — whether one Part of the Community are oppressed, and whether another Part oppress: We, and you, Gentlemen, as the Executive Body, are to enquire what is Law, and see that the Laws are inforced. [308]*308If we step over this Line, and judge of the Propriety or Impropriety, the Justice or Injustice of the Laws’ we introduce the worst Sort of Tyranny: — the most absolute Despotism being formed by a Union of the Legislative and Executive Power. I mention this, Gentlemen, because, from my own Observation, both in this and some other Counties, I have found Juries taking upon them to judge of the Wholesomeness of the Laws, and thereby subverting the very End of their Institution.
Gentlemen of the Grand Jury: You are to enquire into all Things given you in Charge. Every Crime is cognizable in this Court; but it has generally been our Rule to leave the lesser Offences against ye Laws, to inferiour Jurisdictions. And although, Gentlemen, few of you can be supposed to be Lawyers, yet you are all Men of Reason, and will be able to distinguish between those grosser Offences and high Immoralities which deserve the most immediate and full Exertion of the Laws in this Court, and those lesser Matters which will receive an adequate Punishment in the lower Courts.
I need not inform you, Gentlemen, that High Treason is the highest Offence our Law knows of; as unhinging all Society, and demands the most entire Suppression.
( Murder — Arson — Burglary — Forgery -— Thefts — the common Learning on these Topicks here laid down to the Grand Jury, by the Chief Justice.)
[309]*309Not only these Crimes, Gentlemen, require your Attention, but all high Slanders and gross Desamations, which, though they do not amount to an actual Breach of the Peace, yet tend directly to Assaults and Batteries, and are deemed a very dangerous Offence, in our Laws, as promoting ill Blood, and flirring up the moil alarming Confusion in the State : —These, Gentlemen, and some other Matters will be laid before you by the Order of this Court.
I do not mention the Matter of Libels to you, Gentlemen — I am discouraged ! — My repeated Charges to Grand Juries, on this Head, both in this and other Counties, being so entirely neglected. How those Juries have got over their Oath, I tremble to think, — but I have discharged my own Conscience. In short, I have no Hope of the ceasing of this atrocious Crime, but from finding that they multiply so fail, are become fo common, so scandalous, so entirely false and incredible, that no Body will mind them; and that all Ranks among us will treat them with Neglect.
Perjury, Gentlemen, is another horrid Offence. It strikes at the very Root of all Security in Society. One would think it impossible for any one deliberately to be guilty of this Crime: For my own Part, I have no Conception how any Person can call upon the Great God of Truth, to witness to what he knows is a Lie. I tremble when I think of the Reason we have to fear this Crime is so often committed among us. — People, sometimes, [310]*310dispute the Constitutional Authority of the Court which requires their Oath, and hence think themselves excusable in a Departure from Truth. But there can be no Doubt, that every Court which our Law acknowledges may administer an Oath; and whatever would amount to Perjury in one Court, will in another. I have no Doubt, but all Oaths administered by lawfull Authority, — before Referees out of Court, or before any other like Authority, are, in the moil extensive Sense, obligatory; — and, certainly, Perjury may as well be committed in a Court of Admiralty, as in this Court; for the Admiralty Courts have been acknowledged, Time out of Mind, by our Laws which constantly take Notice of them: — nay, they are recognized by our Charter and interwoven into our very Constitution;—there can be no Room to Doubt of this.
If any Thing of this Sort should come before you, you will take due Heed to your Duty. In a christian Country, one would think little need to be said on this dreadful Crime. An Oath administered, when, where, how and by whom it will, can make no Alteration in the Eye of the Deity; — he, who calls upon the Name of God, when he is swearing falsely, can never be the left culpable because the Laws of his Country do not deem it, in that particular Instance, a Crime. In my Mind, temporary Punishments would be as a Feather, compared with the Divine Vengeance.
False Swearing, in the View of God, must be as [311]*311heinous as Perjury, though the Law does not subjet that Offence to the Penalties of Perjury. But, Gentlemen, though, in the Divine Mind, it diminishes Nothing from the Guilt of the Criminal, that he escapes Punishment from the Civil Magistrate; yet the Wisdom of our Laws has been carefull to guard against this heinous Offence in the Sight of God. It is undoubted Law, that whoever takes upon himself to administer an Oath, without proper Authority, is punishable by Fine and Imprisonment; — nay, Gentlemen, a Magistrate who has a Power given him by the Laws to adminifter an Oath when Matters come judicially before him; yet, if he, in Order to support any one particular Party or depreis another, will venture, under Colour of his Office, to administer an Oath to any one, he is guilty of a very high Offence against the Laws and deserves a very severe Punishment. Nay, Gentlemen, it aggravates and blackens an Offence very much, when it is committed under the pretended Cloak of the Law. This deserves your serious Attention and strict Enquiry. — For your own Sakes — for God’s Sake, Gentlemen, exert yourselves, on this Occasion,
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GENTLEMEN of the Grand Jury: We are met here together in Order to maintain the just Rights of the People of the County. The bare Mention of the Word Rights always strikes an Englishman in a peculiar Manner. — But, in Order to support and defend the Rights, of which we are so fond, we ought to have a just Apprehension of what they are, and whereon they stand. I do not intend to go very largely into the Matter, but only touch upon a few Fundamental Principles on which those Rights all stand.
As Men, in our natural Capacity, we have a [307]*307Right to do as we please, without any Controul whatever; but, as Members of Society, we are abridged of this our natural Liberty, and are obliged to submit to the Laws of the State. Now, as the End of Society is to preserve to us that Security in our Persons and Property which we could not have in a State of Nature, we are under a Necessity of giving up some of our original Rights, in Order to a full Enjoyment of the Remainder. And the bed: Constitution of Government must certainly be that, in which we part with the sewest of our natural Rights; — that is, where we part with no more than is absolutely necessary to attain the very Ends of Society and Government. — All this is obvious on the first Mention. The Constitution of Government, under which we have the Happiness to live, is, therefore, the most happy, because we have never yielded up more of the private Rights of Individuals than was needful to invest the Government with Power sufficient to protest us as Citizens. — It is, therefore, the Duty of every good Citizen, who is bound to preserve the Laws of the State under which he lives, to apply to the Legislative Body for a Redress of all Grievances which arise from the Laws. To aim at a Redress in any other Way is to bring Everything into Confusion.
We, Gentlemen, who are to execute the Law, are not to enquire into the Reason and Policy of it, or whether it is constitutional or not; — whether one Part of the Community are oppressed, and whether another Part oppress: We, and you, Gentlemen, as the Executive Body, are to enquire what is Law, and see that the Laws are inforced. [308]*308If we step over this Line, and judge of the Propriety or Impropriety, the Justice or Injustice of the Laws’ we introduce the worst Sort of Tyranny: — the most absolute Despotism being formed by a Union of the Legislative and Executive Power. I mention this, Gentlemen, because, from my own Observation, both in this and some other Counties, I have found Juries taking upon them to judge of the Wholesomeness of the Laws, and thereby subverting the very End of their Institution.
Gentlemen of the Grand Jury: You are to enquire into all Things given you in Charge. Every Crime is cognizable in this Court; but it has generally been our Rule to leave the lesser Offences against ye Laws, to inferiour Jurisdictions. And although, Gentlemen, few of you can be supposed to be Lawyers, yet you are all Men of Reason, and will be able to distinguish between those grosser Offences and high Immoralities which deserve the most immediate and full Exertion of the Laws in this Court, and those lesser Matters which will receive an adequate Punishment in the lower Courts.
I need not inform you, Gentlemen, that High Treason is the highest Offence our Law knows of; as unhinging all Society, and demands the most entire Suppression.
( Murder — Arson — Burglary — Forgery -— Thefts — the common Learning on these Topicks here laid down to the Grand Jury, by the Chief Justice.)
[309]*309Not only these Crimes, Gentlemen, require your Attention, but all high Slanders and gross Desamations, which, though they do not amount to an actual Breach of the Peace, yet tend directly to Assaults and Batteries, and are deemed a very dangerous Offence, in our Laws, as promoting ill Blood, and flirring up the moil alarming Confusion in the State : —These, Gentlemen, and some other Matters will be laid before you by the Order of this Court.
I do not mention the Matter of Libels to you, Gentlemen — I am discouraged ! — My repeated Charges to Grand Juries, on this Head, both in this and other Counties, being so entirely neglected. How those Juries have got over their Oath, I tremble to think, — but I have discharged my own Conscience. In short, I have no Hope of the ceasing of this atrocious Crime, but from finding that they multiply so fail, are become fo common, so scandalous, so entirely false and incredible, that no Body will mind them; and that all Ranks among us will treat them with Neglect.
Perjury, Gentlemen, is another horrid Offence. It strikes at the very Root of all Security in Society. One would think it impossible for any one deliberately to be guilty of this Crime: For my own Part, I have no Conception how any Person can call upon the Great God of Truth, to witness to what he knows is a Lie. I tremble when I think of the Reason we have to fear this Crime is so often committed among us. — People, sometimes, [310]*310dispute the Constitutional Authority of the Court which requires their Oath, and hence think themselves excusable in a Departure from Truth. But there can be no Doubt, that every Court which our Law acknowledges may administer an Oath; and whatever would amount to Perjury in one Court, will in another. I have no Doubt, but all Oaths administered by lawfull Authority, — before Referees out of Court, or before any other like Authority, are, in the moil extensive Sense, obligatory; — and, certainly, Perjury may as well be committed in a Court of Admiralty, as in this Court; for the Admiralty Courts have been acknowledged, Time out of Mind, by our Laws which constantly take Notice of them: — nay, they are recognized by our Charter and interwoven into our very Constitution;—there can be no Room to Doubt of this.
If any Thing of this Sort should come before you, you will take due Heed to your Duty. In a christian Country, one would think little need to be said on this dreadful Crime. An Oath administered, when, where, how and by whom it will, can make no Alteration in the Eye of the Deity; — he, who calls upon the Name of God, when he is swearing falsely, can never be the left culpable because the Laws of his Country do not deem it, in that particular Instance, a Crime. In my Mind, temporary Punishments would be as a Feather, compared with the Divine Vengeance.
False Swearing, in the View of God, must be as [311]*311heinous as Perjury, though the Law does not subjet that Offence to the Penalties of Perjury. But, Gentlemen, though, in the Divine Mind, it diminishes Nothing from the Guilt of the Criminal, that he escapes Punishment from the Civil Magistrate; yet the Wisdom of our Laws has been carefull to guard against this heinous Offence in the Sight of God. It is undoubted Law, that whoever takes upon himself to administer an Oath, without proper Authority, is punishable by Fine and Imprisonment; — nay, Gentlemen, a Magistrate who has a Power given him by the Laws to adminifter an Oath when Matters come judicially before him; yet, if he, in Order to support any one particular Party or depreis another, will venture, under Colour of his Office, to administer an Oath to any one, he is guilty of a very high Offence against the Laws and deserves a very severe Punishment. Nay, Gentlemen, it aggravates and blackens an Offence very much, when it is committed under the pretended Cloak of the Law. This deserves your serious Attention and strict Enquiry. — For your own Sakes — for God’s Sake, Gentlemen, exert yourselves, on this Occasion,
A
[312]*312A few Words, Gentlemen, on the Nature of your Office. Grand Juries, Gentlemen, are of very sigh Antiquity; the Institution is beyond the Knowledge of all History. Four hundred Years ago, they are spoken of as having been, Time out of Mind. The best Institutions are liable to Abuse. Sheriffs were found to return their Friends, or Friends to particular Parties; and Persons who would charge with Offences, or omit Charges, as he should name. A Statute was then made, to punish this Crime, and to inflict Penalties on such as should even mention to a Sheriff, who he should return as Jurors or who he should not. This seems to have answered the End pretty well, till, fome Time in the Reign of Henry the Eighth, Sheriffs were again found abusing their Trulls; and were again subjected to additional Penalties, for Mal-Conduct. And many and repeated have been the watchfull Cautions of our Mother Country, to suppress this gross Iniquity, and to have a fair and impartial Return of unbiassed Jurors.
We, in this Country, have been still more jealous [313]*313of Jurors. We, by our Provincial Constitution, have not left the Return of Jurors to the Sheriff of the County, as in England; but we send out Venires to the several Towns in the County, and they are returned by the respective Towns, to serve the Courts. In general, I believe, our Returns of Juries are made with more Impartiality than in England; but it would be a great Abuse of Priviledge, if Towns should send Persons, as Jurors who they know to be prone to prosecute with Vigour particular Offences and Misdemeanours; or such as they knew would connive at and pass over in Silence and entirely smother other Crimes of an alarming Nature. I don’t know this to be the Case, and therefore would not affirm it to be so; but I cannot say, but I have some Reason to fear.*
The Court have many Times observed, both upon the Grand and Petit Jury, Persons sent who have had Suits depending at those very Courts. This has been more frequently observed in the Country-Towns than in trading ones. The Reason of this happening so often in the Country has been, out of a false Companion to those Persons who had Suits at Court; — that their Expenses of Attendance might be less burthensome to them; but it is a very dangerous Offence, and ought to be discountenanced by every good Citizen. I mention not this as an Offence happening in this Town, (for I do not remember ever to have had any Reason to [314]*314think it the Case here,) but as a Matter of Concern to the Court, when we could not help making the Observation, in our Circuit through the Province.
Before I close, I would observe to you, Gentlemen, one other Branch of your Duty:—namely, Secrecy. People out of Doors will influence your Conduct if they know the Business you are engaged in. Offenders will escape and the End of Justice be, in a very great Measure, frustrated. Recoiled that Secrecy you have been sworn to observe, and comply with the true Spirit of the Oath of God you have now taken. — I alk no more.
Should any one, while you are on Business, come and call you out, and endeavour to influence your Conduct, it is a very heinous Offence, and you are bound to give immediate Information to the Court, or to his Majesty’s Attorney General, that such wicked Offenders may meet their Deserts. —I am told this happened, within this County, a few Months past; — if any endeavour so to work on you, you would be highly culpable if you omitted an immediate Presentment of such daring Offenders.
Thus, Gentlemen, I have run through such Parts of your Duty as I thought pertinent to the present Occasion. Many Things I have said I have mentioned with Reludance ; — a Sense of Duty has constrained me to say thus much. — It is not to be [315]*315expedited, in this World, that we should all he of the iame Sentiments. But whatever are our Sentiments of Duty, a good Conscience will dictate to us, to act accordingly. — May the Great God bless and direct you.
It may not be improper here, to remark the Offence above alluded to. So long ago as the Year 1765, Richard Dana, of Boston, Esqr., one of the oldest Barristers at Law, and the moil accomplished and experienced Justice in the Province, did, on a Message from the Sons of Liberty, administer the Oath of Relignation of the Stamp-Master-ship, to Andrew Oliver, Esqr., Secretary of the Province, and Brother in Law of the present Chief Justice.
We may also further note, here, that the said Richard, and Jonathan Sewall, Esqr., the present acting Attorney General, (and late
[312]*312appointed Judge of the Admiralty for Halifax, with a Salary of £600 Sterling per Annum,) had, at the last Sessions of the Peace, for the County of Suffolk, exceeding high Words, on the said Attorney General’s entering, without lisping the Matter to the Court of Sessions, a Nol. pros, to an Indictment against a Soldier for imprisoning Mr. Lewis Gray, a Merchant in Boston, for not answering to the hailing of the said Soldier, who flood as Centry at the Main-Guard, in King Street.
It may be a Matter of Curiosity, some Years hence, to enquire the Reason, why the Sons of Liberty, in 1765, pitched upon Mr. Dana to administer the Oath to the Stamp-Master. — The Sons, at that Time, imagined Mr. Dana to be in a very different political Box, from that in which he afterwards appeared.