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in the Chronological History of England, 24th May, 1682), but was also obnoxious, if not charged by a writ dc H omine rqfilegiando, and committed (as the nature of such writ requires) until he produced the persons in order to be uplevied, this was the ancient remedy for the liberty of the subject, and it is indeed more effectual and expedite than an Habeas Corpus."
These returns of Ignoramus by the Grand Juries were attributed by the Court party to the Whigs. “ Mr. Attorney-General Sawyer (writes North in his Examen,) found that, by the Statute 3 Henry VIII., the Judges and Justices had a power to reform the Panels of Grand Juries returned before them, by taking out and putting in names as they thought fit; and the Sheriffs are, by that law, bound to return the Panel so reformed, on pain of ,6‘ 20.” The “ very fountain of Ignoramus flowed out of Conventicles,” and so in 1681, when the Court of Sessions at Hicks’ Hall did proceed upon that law, and reformed the Panel by taking out some Dissenters’ names, persons obscure, and not known to the Justices or Chief Constables; and the Court required the Sheriffs to return the Panels accordingly, and they refused to do so. Upon a representation of this undutiful insolence of the Sheriffs, the King ordered that all the Judges should attend at the Old Bailey, and the same proceeding to be had there, when, perhaps, more respect might be paid to the Judges than had been to the Justices of the Peace ; at least, they knew, and were able, better to deal with them.”
“At the Sessions at the Old Bailey before Michaelmas Term, 1681, the King commanded the attendance of the Judges; they were all present, except Justice Charleton and Baron Street. Mr. Solicitor-General being present, and other counsel for the King, ‘he informed the Court that the Grand Jury that was returned, consisted of persons disaffected to the Government, and criminal in not going to church, and resorting to conventicles, and desired that the Court would take consideration thereof, and reform the Panel according to the power in 3 Henry VIII.’ The Court thereupon opposed some that were objected to; and one not giving a clear answer to his not coming to church, and another declaring he went sometimes to church, and sometimes to other places, which the Judges understood to be conventicles and he not denying it, the Court thought fit to enjoin the reforming the Panel and it appeared necessary to put in others, else there had not been twenty-four according to the command of the writ. The Sheriff (Pilkington) boggled at it, insisting that it would reflect upon them and condemn their first return, and also upon those jurymen that were put out, and desired that it might be made appear that the Panel was corruptly made, and within the cases cited in the Preamble of the Statute, before they should be put to return the Panel. But the Court told them, that there were certain ill cases recited in the Preamble, which, it may be, were the occasion of making that law; yet all ill cases were not recited, and, by the enacting clause, power was given to the Judges in all cases to reform the Panel, by putting out and putting in; and the Sheriffs were enjoined to make areturn accordingly. That the Court was not bound to show any cause, for they were entrusted to do it at their discretions; but they had here proceeded upon a cause, inasmuch as they thought men, who were breakers of the King’s laws, not fit to serve upon juries, as they that refused to go to Church, or frequented seditious conventicles, were; and therefore they hoped the Sheriffs would be candid in their obedience, and, having taken an oath to perform the office of Sheriffs, they would not, in the face of the Court, break their oath in refusing. They desired to advise with counsel, but the Court told them that it was very indecent for them to ask to go to counsel what the law was, when all the Judges had declared it, or whether they should obey, if it were so. Then they said, what needed it, when there were enough besides, and the Court might forbear swearing those men. But the Court persisted to require them to return the Panel, and said that those men had brought asuspicion upon the whole Panel, and it became the Court to make use of all the powers the law gave them, to provide for impartial returns of Juries; and, at last, the Sheriffs consented to return the Panel” (Examen, Part 3, Chap. 8).
The immediate occasion of these proceedings was the return of Ignommus in the Earl of Shaftesbury’s case; and now, having shown what the Court could do, it was hoped the Grand Jurors would be “ more modest, and not oblige the Court, in other instances, to use the extremity." So, after this a Bill for high Treason was preferred against one Rous, “a VVappinger, and good at mustering seamen ;” and to take away from the Grand Jury, already sworn, “ all subterfuge of excuse, Counsel for the King moved the Court at the Old Bailey, that the evidence might be given to the Grand Jury openly; the Court declared they could not deny it; and the witnesses were heard openly, and the Jury charged upon it to consider of the Bill, who, being retired, sent presently for some of the witnesses; and the Counsel for the King informed the Court of it, and promised, that, if the Grand Jury would ask any questions, they should ask them in public. The Court sent for the Grand Jury, and declared to them that they should have liberty to ask the witnesses, but it ought to be in public, as the first examinations were, being so required of the Court by the King. The Grand Jury told the Court, with much confidence, they thought the first examination was for the satisfaction of the Court, and they did not much mind it; that it was their privilege to have private examimztions, and they could not depart from it. The Court told them they had a privilege to debate privately, and were sworn not to reveal one another’s secrets; but, as for the King’s evidence, there was no need of keeping that secret, unless the King’s Attorney desired it, but it might be public or private, as the Court should direct, and they were bound to follow the direction of the Court in this matter.” . . . . “But nevertheless the Jury brought in Ignoramus" (North’s Examen, Part 3, Chap. 8). In I682 he adds, on the election of Sir John Moor as Lord Mayor, and the appointment of Sir Dudley North and Sir Peter Rich as Sheriffs, “ Ignoramus vanished.”
The overt acts alleged against Colledge already referred to, having been done in Oxfordshire as well as in Middlesex, it was determined to proceed to indict and try him in Oxfordshire ; and the Assizes being then at hand, the witnesses were sent down, and a Bill preferred to the Grand Jury of that county; “and there, to make sure work, the King's Counsel are privately shut up with the Jury till they had found the Bill, which Mr. Hawles -says was a most unjustifiable practice.” The presence in the Grand Jury room of the law officers of the Crown was sought to be justified on the ground that the prosecutor, who is usually the principal witness in a case, is with the other witnesses admitted to the Grand Jury room, and as the sovereign cannot prosecute in person but only through his officers, they are equally entitled to go before the Grand Jury, which would be a fair enough argument had they gone before them as witnesses, but they did not. Thus, among the Resolutions of the Judges upon the case of the Regicides, in 1660, as given in Kelyng’s Reports, was the following :—“ It was resolved that any of the King’s Counsel might privately manage the evidence to the Grand Inquest, in order to the finding of the Bill of Indictment, and agreed that it should be done privately; it being usual in all cases, that the prosecutors upon Indictments are admitted to manage the evidence for finding the Bill, and the King’s Counsel are the only prosecutors in the King’s case, for he cannot prosecute in person.” Sir John Hawles, Solicitor-General in the reign of William III., writes, “I know, in Fitzharris’s case, the King’s Counsel were cajoling the Grand Jury in private for some hours,” and on the Indictment of Hardy and others for Treason, in 1794, the Solicitor for the Crown attended the Grand Jury for the purpose of managing the evidence—but in this instance, at the desire of the Grand Jury and by leave of the Court. Sir John Hawles, in his remarks on Colledge’s Trial, writes :—“I know not how long the practice in that matter of admitting counsel to a Grand Jury hath been ; I am sure it is a very unjustifiable and unsufferable one. If the Grand Jury have a doubt in point of law, they ought to have recourse to the Court, and that publicly, and not privately, and not rely upon the private opinion of counsel, especially of the King’s Counsel, who are, or at least behave themselves as if they were parties." That the Grand Juries did not look with favour upon, or approve this practice is clear ; thus in 1796 on the trial of The King v. Crossfield, Smith, Higgins and Le Maitre, for High Treason, the Solicitor for the Treasury, acting for the Attorney-General, requested to be admitted during the examination of the witnesses on the Indictment. But the Grand Jury determined that no one, not a witness, could be present while they were making their inquest, and he was not admitted.
However frequently it may have been the practice formerly to take the evidence publicly before the Grand Jury, or tolerate the presence of the King’s , Counsel at the enquiry for the purpose of overawing or inducing Juries to find Bills in State prosecutions, it is clear that even then it was looked upon as an exception to the general practice, and that in all cases, without exception, the deliberations of the Grand Jury upon the evidence, however tendered, were invariably held in secret. In North’s Examen, writing of the complaints that had been made in reference to the