The Charge by the Chief Justice given on the Adjournment

1 Super. Ct. Jud. 175

Opinion

GENTLEMEN of the Grand Jury: We, as the Superiour Court of the Province, are to carry the Laws into Execution, but in this we have Need of your Assistance. Your Business, Gentlemen, more immediately respects the Crown Law. It is my Duty to inform you what Steps you must take, and what Methods pursue. I have often, on these Occasions, gone into a distinct Detail of the aeveral Branches of our Duty that more particularly fall under your Cognizance, and given special Definitions of those Crimes, Offences and Misdemeanours, concerning which the Grand Jury are to enquire: But now our Time is too far spent to allow of this; and indeed there is the less Need, as our present Crimes arise not is much from Ignorance, as other Sources. I shall therefore only just touch on such Definitions as I judge more especially necessary.

In general, Gentlemen, then, you are to enquire into all heinous Offences: — And these in general are those Crimes which hurt the Peace of the Community, and disturb the Order of Society. One of the most renowned Men and greatest Sages of the Law called himself the Custos Morum, as well as Custos Legum; and such, Gentlemen, are you; you are to see that the Laws are kept inviolate, and the Manners of the People unpolluted.

You are to enquire into all Treasons; and you are not to think there can be no Treasons at this Distance from the Throne. Treasons may be committed here, as well as nearer the royal Person; and if from our Distance, we are exempted from those more overt Ads of assaulting the Person of the King, yet Treason may be committed among us, by writing or speaking against our Sovereign’s Right to the Throne, conspiring with others to levy War, and actually levying War against the King,

Footnotes

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* or the like.

You are to inspect all Felonies, Burglaries, Thefts, high-handed Assaults, Riots and other Disturbances : All Offences that more immediately respect the Morals of the People you are to enquire of; such as the denying the Existence of a God, Elasphemy, or attributing to God what is inconsistent with God, or denying what belongs, and is due to him, a Denial of the established Religion, all Profaneness, Lewdnesses, and those Crimes which a chaste Ear cannot bear the Recital of, — indeed, there is no Offence whatever but may come under your Cognizance.

I would especially mention one or two Crimes which demand your immediate Attention. Burglary, Gentlemen, by the Rules of the Common Law, is a forceable Entry into the House of another in the Night-Time, with an Intent to commit some Felony, whether such Intent be executed or not; and I would observe, that there is no Need it should be done secretly; it may be as well done when a great Number are present, as when there are but few. Riots is another very high Offence; this indeed does not strike the Mind with so much Abhorrence, as some other Offences do, yet on the Discouragement and Suppression of these, all Peace of Society depends. To prevent these, we must all lend our whole Assistance; for it is against the natural Light of Reason that such Offences should proceed with Impunity, and it greatly concerns every Individual to put a Stop to them. Such an Abhorrence has the Law, of Riots, that, if three or more assemble peaceably, and after, do some riotous Ad:, this is a riotous Assembly, notwithstanding they did not at first assemble in a riotous Manner. The Law is thus severe, because such Assemblies, when not restrained, generally refill all Opposition, and tend to the Subversion of all Government: There is no knowing where they’ll end. I shall not enlarge — indeed I may well be excused, being so much interested myself.

A sacred Regard, Gentlemen, is to be had to your Oaths. You are to present no one through Malice, and leave no Man unpresented, through Fear, Favour or Affection. Such a Situation are we in, at present, that ’tis very difficult to divest one’s self of all Connexions, and to preserve that Firmness of Mind, on which depends the Well-being of us all.

The Trust committed to you is very great and important. All Offences come under your Cognizance, and are to be presented by you before they can be punished. Sometimes Informations are filed by the Attorney General, and in certain Cases admitted, though we are very tender how these are indulged, as ’tis a Hardship on the Subject; and I think there is no Case, in which a Man shall be tried for Life on an Information.* The Life of a Man shall not be endangered, unless twelve Men of the Grand Jury shall say, he shall be put on Trial, and twelve more of his Peers shall all agree that he is guilty, before he shall lose his Life. This is a Priviledge of which the Court is as tender as any of the Subjects, and therefore do not allow Informations, only in particular Cases, and those very seldom. — It is of great Moment that you be very diligent in your Enquiry.

One Thing more I would mention: You are obliged, each of you, not only to take Notice of such Offences as have been observed to you by the Court, or that shall be brought before you by the Attorney General, or others, but also of all those Crimes which come within your own Knowledge, or where you have sufficient Inducement to think Persons have been guilty of Crimes, which have not been In such Cases, you brought forward by any one. ought to take Cognizance.

Further, Gentlemen, you will mind that Secresy you are obliged by your Oaths to observe. This is not observed commonly so much as it ought, but ’tis absolutely necessary now. You may discourse among yourselves, send for particular Persons, and examine them; and, whether what they testify is sufficient to find a Bill, or not, you are to keep all in Secresy. The Danger of revealing what may come before you at this Time is very obvious; ’twill not only prevent future Informations, but have a Tendency to countenance and increase Crimes which it nearly concerns all of us to suppress.

I shall only add, that you must use the strictest Impartiality through your whole Enquiry, and I pray God to direct you in it.

Qu. Whether the Chief Justice had not in Contemplation the following, or some other similar Authorities : — If the Intention of riotous Assemblies is to redress Grievances of a publick Nature, and such Intention is executed, it is a levying War against the King, and Treason. Dalt. 322. 3 Inst. 9. Kel. 70, 76. H. P. C. ch. 17, § 25. H. P. C. ch. 65, § 6.

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Qu. One may be convicted of Felony on Indictment or Information by 5 Geo. i, ch. 4. Wood’s Inst. 654.