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The object of this secrecy was, of course, in those times when there were no magisterial investigations, and the first intimation to the accused was usually the arrest after the finding of a True Bill, to prevent his getting knowledge of the fact and making his escape. "The original purpose (says Bentham) of this secrecy, was to avoid divulging to the defendant the evidence that might be produced against him in the definitive inquiry called the trial before the Petty Jury. Not divulge it to him? Why not? Lest, by absconding, he should elude
he should elude the hands of justice” (Rationale of Judicial Evidence, chap. 10).
An inquiry conducted on such principles, where according to the direction of Pemberton, L.C.J., in the trial of the Earl of Shaftesbury in 1681, "you are to consider of the case according to the things alleged and proved, unless you know anything yourselves;, but if any of you know anything of your own knowledge, that you ought to take into consideration, no doubt of it," was liable to engender many abuses ; false accusations might be made, and when political or party feeling ran high, Grand Juries might find Bills without evidence, or ignore them where the charge was clearly established-more especially in Political and State trials.
But though the deliberations of the Grand Jury were invariably secret, it seems that anciently the examination of the witnesses was not necessarily so, but, if occasion required it, might be had in open Court. This, it was alleged, might be demanded as of right by those who prosecuted for the King, and was the device commonly resorted to in State Trials, where Grand Juries were contumacious, or suspected of being so, as a means of overawing them. On the trial of the Earl of Shaftesbury in 1681, it was moved, on behalf of the Crown, that the evidence before the Grand Jury might be heard in Court. Whereupon L.C.J. Pemberton said :“ Gentlemen of the Jury, you hear it is desired by the
King's Counsel (and that we cannot deny) that the evidence may be publicly given, that it may not be hereafter in the mouths of any ill-minded persons abroad, to scatter any mistakes or untruths up and down; or to slander the King's evidence, or to say anything concerning them that is not true; therefore, we cannot deny this motion of the King's Counsel, but desire that you will take your places, and hear the evidence that shall be given yoụ.” But the Jury were not disposed to obey, and, having obtained a copy of their oath and retired to deliberate, they returned into Court and their foreman thus addressed the Judge:-"My Lord Chief Justice, it is the opinion of the Jury, that they ought to examine the witnesses in private, and it hath been the constant practice of our ancestors and predecessors to do it; and they insist upon it as their right to examine in private, because they are bound to keep the King's secrets, which they cannot do, if it be done in Court.” L.C.J. :“ The Judges, for the convenience of the matter, have allowed, that witnesses should go to the Jury, and they to examine them; not that there is any matter of right in it, for, without question, originally all evidences were given in Court; the Jury are officers and ministers of the Court, by which they enquire, and evidence sure was all given in Court formerly; and the witnesses still are always sworn in Court, and never otherwise. And, gentlemen, I must tell you, it is for your advantage, as well as for the King's, that it may be sure, that you comply with your evidence, that you do nothing clandestinely; therefore, it is for your advantage that this is done, and the King likewise desires it. Now I must tell you, that if the King requires it of us, and it is a thing that is in its nature indifferent, we ought to comply with the King's desire to have it examined in Court ; you shall have all the liberty that you can have in private ; what question soever you will have asked yourselves shall ask it, if you please, and we will not cramp you in time, nor any.
thing of that nature. Therefore, gentlemen, there can be no kind of reason why this evidence should not be given in Court. What you say concerning keeping your counsels, that is quite of another nature, that is, your debates, and those things, then you shall be in private, for to consider of what you hear publicly. But certainly it is the best way, both for the King and for you, that there should, in a case of this nature, be an open and plain examination of the witnesses, that all the world may see what they say.”
L.C.J. North added :-“ The same thing was stood upon and discussed on the last sessions, and then all the Judges were of this opinion, and in what all the Judges agree to, you should acquiesce. I must tell you from my own experience, when the King will, he ought to have it kept secret; I have not known it done publicly in the orderly course of business; but I have often known when it hath been desired by those which prosecute for the King, that evidence hath been given openly, and I never knew it denied” (8 State Trials, 775).
Yet, notwithstanding all these precautions and the admonition from L.C.J. North—“ Gentlemen, I hope you will consider your oaths, and give all things their due weight"_"The Jury withdrew to consider the evidence, and returned the Bill Ignoramus upon which the people fell a hollowing and shouting' (8 State Trials, 821) ; and, according to Dalrymple “The acclamations in Court for Shaftesbury's acquittal lasted an hour," (Memoirs part 1, Book 1, p. 4).
At the Lent Assizes held in April, 1683, before Baron Gregory, at Derby, a Bill was preferred against one" for being a priest, unto the Grand Jury; who were Knights of the new order of Addressers and violent Tories, but they were pleased to return thereon 'Ignoramus’; but the Judge knowing the evidence to be plain, sent them out to consider of it again, which they did, and brought in 'Ignoramus'
again. Upon this, the Judge told them, for the satisfaction of the country, he would examine the witnesses in open Court, which being done, the same Jury, upon the same evidence on which they found before two 'Ignoramuses' found now 'Billa Vera.'
Babington, in his Advice to Grand Jurors, published in 1677, says on this subject :-"In my own experience, for above forty and five years in one Circuit, I have very often known many learned Judges, such as Mr. Justice Doderidge, the Lord Chief Baron Davenport, Mr. Justice Jones, Mr. Justice Whitlock, and many others, often rebuke and reject the presentments of Grand Jurors, in cases of blood, and other felonies, where they have either varied from their evidence, or from the law, the Judges beforehand having received some light of the nature and testimony of the fact from the Informations and Examinations therein delivered into the Court by the Justices of the Peace and Coroners, and often either put it upon an open evidence in Court (which is very inconvenient) or discharged them of such a Bill, and bound the witnesses over to the next Assizes (which is also very inconvenient) in regard witnesses may die, or the prisoner may die, and so the forfeiture is lost, and the offence unpunished; and in cases of blood there will be too much opportunity given for compounding and making an interest with the prosecutor and witnesses; and in these modern times, since the happy return of our most gracious sovereign, King Charles the Second, I have known several learned and pious Judges, some since dead, others yet living, and eminent upon the Bench in Oxfordshire Circuit, fine and imprison several Grand Jurors for their miscarriage and misdemeanorin delivering in Bills of manslaughterinstead of Bills of murder, against the clear and positive directions of the Court" (Babington's Advice to Grand Furors, p. 204).
In 1667, in the case of The King v. Sir H. Windham and others, Jurors of Somersetshire, 2 Keble, 180, eleven of the
Grand Jurors were fined £20 each for refusing to find a Bill for murder “albeit they were satisfied the man died by the hands of the party indicted, and were told this was but an accusation, and no trial of the issue guilty or not guilty.” But, according to Hale, fines were only imposed when, having heard the evidence at the bar, the Grand Inquest would not find according to the Justices' directions.
In 1681, a Bill of Indictment for High Treason was presented to the Grand Jury of the City of London against Stephen Colledge, the Protestant joiner, as he was called. Of the witnesses it was said, “ It is certainly true, that never men swore more firmly than they did in Court, before the Jury, who demanded of the Court a copy of their oaths, and that the witnesses might go with them, to be examined apart; which request was granted to the Jury, and after two or three hours' consideration, the Jury returned, and found the Bill 'Ignoramus.' Upon which the Lord Chief Justice (North) demanded, whether they would give no reason for this verdict; and whether they believed these six witnesses perjured ? To which they replied, that they had given their verdict according to their consciences, and that they would stand by it. To which the Lord Chief Justice (North) said: there was never sạch a verdict brought in the world” (2 Coke's Detection). For which “Ignoramus,” it was said, Mr. Wilmore, the foreman, was, out of all course of law, apprehended, and examined before the Council, August 16th, and sent to the Tower; and was afterwards forced to fly beyond the seas. But according to North's Examen, he was not apprehended for this cause, but the following :-“ It seems, some of the neighbours, that had him in detestation, informed that he was a kidnapper, and that he had sent one or two young men to the plantations; and it was verily believed he had sold them there. Upon this, he was taken up and examined, and, afterwards, not only tried at the King's Bench bar and convict (as I find