Oath to be made a record. Certificate good evidence. Protestant Dissenters. Places of wor- . Dissenters. other foreign prince, prelate, state, or potentate, hath, or ought to have, any temporal or civil jurisdiction, power, superiority, or preeminence, directly or indirectly, within this realm; and I do solemnly, in the presence of God, profess, testify, and declare, that I do make this declaration, and every part thereof, in the plain and ordinary sense of the words of this oath, without any evasion, equivocation, or mental reservation whatever, and without any dispensation already granted by the Pope, or any authority of the See of Rome, or any person whatever: and without thinking that I am, or can be, acquitted before God or man, or absolved of this declaration, or any part thereof, although the Pope or any other person, or authority whatsoever, shall dispense with or annul the same, or declare that it was null or void. So help me, God. This declaration and oath must be subscribed by the person taking and making the same with the name at length, if such person can write; or with his mark, the name being written by the officer, where such person cannot write; adding his title, addition, and place of abode, and the same is directed to remain in the court of record. And it is further enacted that the proper officer with whom the custody of such record shall remain, shall make, subscribe, and deliver a certificate of the declaration and oaths having been duly made and subscribed, to the person who shall have made and subscribed the same, if demanded, for which certificate there shall be paid no greater fee than 2s.; and such certificate, upon proof of the certifier's hand, and that he acted as such officer, shall be competent evidence of such person's having duly made and subscribed such declaration and oath, unless the same shall be falsified. The other statute, to which allusion was lately made, is the 52d Geo. 3. c. 155. which was enacted for the protection of Protestant Dissenters; the former statutes for that purpose (n) not having been considered as sufficiently explicit. By the last mentioned statute it is enacted ship of Protestant that "No congregation or assembly for religious worship of protestants (at which there shall be present more than twenty persons, beside the immediate family and servants of the person in whose house, or upon whose premises, such meeting shall be had) shall be permitted unless and until the place of such meeting, if the same shall not have been registered under any former act, shall have been certified to the bishop of the diocese, or archdeacon, or to the justices at the General or Quarter Sessions; and all places of meeting so certified by the bishop or arch To be certified by the Sessions, or others. (n) 1 Wm. and M. c. 18; and 19 Geo. 3. c. 14. deacon's court, shall be returned by such court once in each year to the Quarter Sessions; and all places of To be returned meeting certified to the Quarter Sessions shall be returned annually to, or once in each year to the bishop or archdeacon: and the sions. by Quarter Sesbishop or registrar, or clerk of the peace, shall give a certificate thereof to such persons as shall demand the same, on payment of 2s. 6d. &c. &c. On compliance with these directions respecting the Exemption from house of meeting, the statutes declare that, "all teachers, penalties. and preachers, and persons resorting to any place of worship thus certified, shall be exempt from all penalties under statutes relative to religious worship, on condition ministers, &c. to take the oaths. of taking the oaths prescribed by 19 Geo. 3. c. 44. when Justice may rethereunto required by any justice of the peace; of which quire dissenting taking of the said oaths, the said justice shall give a certificate according to a form therein prescribed, which certificate shall be conclusive evidence; and any person Any person may may require a justice of the peace to administer the said require a justice oaths." So that, as the law stands now, all doubts respect- oaths. ing the discretionary power of justices in session to judge of the qualifications of persons offering to take the oaths, and to accept, or reject them, appear to be done away. to administer the called. The administration of these oaths of qualification and Constables indemnity being concluded, it is usual, in the next place, for the clerk of the peace to call over the constables of hundreds, and of parishes, &c. (o) which is commonly done (with respect to the defaulters on the first call) a Defaulters. second, and even a third time. On their failing to answer at the third call to the name of their respective parishes for which they serve, the court will set a fine on the defaulters. §3. OF THE CALLING THE GRAND JURY, SWEARING AND CHARGING THEM, AND THEIR DUTIES. The clerk of the peace (or in cities and towns corporate the town clerk) next proceeds to call the names of those who are returned to serve on the Grand Jury; whose qualifications, we have already seen, are now the same with those of the Petty Jurors. (p) If any of the parties so called are aliens; or outlaws, even on civil process; or attainted of treason or felony; or convicted of any infamous crime; a prisoner, or party bound to answer a charge may object to them in the first instance for cause; Number sworn. Oath. or if he discover it after a bill has been found against him, may plead it in avoidence of the finding. (9) If the names of improper persons are inserted in the panel, it may be reformed, at the discretion of the court, by excluding their names and inserting others in their room; (r) and it is even said that this power extends to the dismissal of a Juror who has been sworn, on the discovery that he is an improper person. (s) On the other hand, if any of the parties summoned have any claim of exemption by law or courtesy, they must now submit their claim to the chairman. (t) In practice it is not uncommon, and may be discreet and proper, when the names are called over, for the court to direct the names of all those to be omitted who reside in a particular district, in which matter of prosecution has arisen calculated to excite feelings in the inhabitants inconsistent with the calm and impartial administration of justice. The number called and sworn on the Grand Inquest should not be less than thirteen, nor more than twentythree; not less than thirteen, because every bill must be found by twelve at least; not more than twenty-three, for if a number amounting to two full Juries were sworn, there might be an equal division. At sessions, after sixteen or seventeen names have been called, and the parties have appeared, it is not unusual to consider the Inquest as complete, and to dismiss all others attending on their summons. The Grand Jurors who remain to serve, having taken their places in the box assigned to them, the following oath is administered by the clerk of the peace, first to the foreman, thus: You, as foreman of this inquest, shall diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge. The King's council, your fellows', and your own, you shall keep secret. You shall present no man for envy, hatred, or malice; neither shall you leave any man unpresented for fear, favour, or affection, or hope of reward; but you shall present all things truly as they come to your knowledge, according to the best of your understanding. So help you God. Then the rest of the Grand Jury, by three at a time, in order, are sworn in the following manner: The same oath which your foreman hath taken on his part, you, and every of you, shall well and truly observe and keep on your parts. So help you God. Hawk. b. 2. c. 25. s. 16; 2 Hale, 155. Hawk. b. 2. c. 25. s. 32. Lamb. 400; 1 Shaw, 632. (1) See ante, p. 63, 64. The Grand Jurors having all been sworn, it is the duty Charge to the of the Chairman of the Session to deliver his charge to Grand Jury. them. (u) The charge being concluded, the course is to call the Recognizances recognizances, especially such as are to prosecute and called. give evidence, that so bills, which have not been previously prepared, may be drawn by the clerk of the peace. The bills, as they are prepared, that is to say, drawn (u) Note by Mr. Dickenson. It is much to be lamented that this part of the chairman's duty is very frequently altogether omitted, and sometimes performed in a very cursory, and even slovenly manner. The calendar generally presents sufficient occasion for observations on the general state of morals in the particular district; on the activity of justices, chief constables, and all other officers of the peace; and on other subjects immediately connected with the duties of the day: and there can be few instances of a session occur, in which there is not some indictment or other to be presented to the jurors, on which some information may not be convenient, if not absolutely necessary. Indictments for assault, which frequently originate in a spirit of party, malice, or revenge, and are usually one item in the business of a Quarter Session, present a fruitful source of observation; indictment of roads another; and some modern statutes (ex. gr. those which respect the coin, embezzlement by servants, friendly societies, saving banks, seditious meetings, and the regula tion of the poor of all descriptions) comprehend so many more points of discrimination, as it is no disparagement of the discernment of such persons as usually compose the grand juries at Quarter Sessions, to say, must be much above their comprehension, without some explanatory remarks from the chairman, by way of previous charge. These observations on the necessity for a charge, at all events, naturally lead to some consideration of the sufficiency of the chairman to discharge this duty, and therefore to introduce a decided reprobation of a measure introduced into some counties, of the respective justices taking the chair by rotation. Nothing can be more subversive of regularity, consistency in practice, expedition in business, information to the Jurors, authority over the advocates, or satisfaction to the country, than such a practice. To execute the various duties of chairman of a Quarter Sessions, as they ought to be executed, requires the personal qualifications of some legal knowledge, reasonable experience, an acquaintance with forms and technical proceedings, and a portion of that decision and authority, which can only be acquired by a confidence in the possession of these qualities, to at least a certain degree. Unless the chairman possess these requisites to some extent, the Jury can receive no information, inexperienced advocates will run riot, and the county will not feel that respect for the court, which it is both desirable, and useful, that it should do. It leads also to another consequence, which ought neither to be agreeable to himself, or the bench, or the suitors of the session, viz. that the clerk of the peace, being the only permanent and stationary organ of the court, instead of its minister, becomes its master. Duties of the out fairly and engrossed on parchment (either by the prosecutor's professional adviser, or by the clerk of the peace,) with the names of the witnesses written on the backs of them respectively, are delivered to the Grand Jury, and the parties bound to give evidence upon them being sworn in court, are sent to the Grand Jury to give their evidence. It is presumed, of course, that they are all in attendance for these purposes, either by recognizance or under subpœna; to which there can regularly be but one exception, and that arising out of a privilege given by a statute, (v) to prosecutors of offences committed within the county of a city, or town corporate, to prefer their indictments before the Grand Jury of the county adjoining, at the assizes for the same, on condition of entering into recognizance to pay the extra costs incurred by such proceeding, if the court shall so direct. In the case of this privilege being taken advantage of, it may be necessary to notice here, that the prosecutor, ten days before the session, must give to the defendant, as well as to the witnesses, notices in writing to that effect. In this stage of the proceedings, a few words on the duty of Grand Juries (and which may well make part of the subject of the chairman's charge to them), cannot be considered irrelevant. It has been laid down in general terms by some of the greatest lawyers, that the Grand Jury ought only to hear the evidence for the King, that is to say, on the side of the prosecution. (w) But others have received this position with some qualifications, (x) as indeed, it ought to be; for the Inquest are sworn to present the truth, and nothing but the truth; and it may so happen, that they may not be able to elicit truth from the witnesses on the part of the prosecution only, and they may actually be convinced of that circumstance. The true intention seems to be this, viz. prima facie the Grand Jury have no concern with any testimony but that which is regularly offered to them with the bill of indictment, on the back of which the names of the witnesses, as we have observed, are inserted; their duty being merely to inquire whether there be sufficient ground for putting the accused party on his trial before another Jury of a different description. If nothing ambiguous or equivocal appear on this testimony, they certainly ought not to seek any further; but if their minds be not satisfied of the truth, so (v) 38 Geo. 3. c. 52. (w) 2 Hale, 157. (x) 4 Bla. Com. 303. |