Judge Drayton' s Charge to the Grand Jury of Charleston

v2:1047

At a Court of General Sessions of the Peace, Oyer and Terminer, Assize and General Gaol delivery, begun and holden at CHARLESTON, for the district of CHARLESTOWN, on TUESDAY, OCTOBER 15th, in the year of our Lord 1776, before the Hon. WILLIAM HENRY DRAYTON, Esq˙, Chief Justice, and his Associates, Justices of the said Court.

Ordered, That the Charge delivered by his Honour the Chief Justice to the Grand Jury, and their Presentments at this sessions, be forthwith published.

By order of the Court: JOHN COLCOCK, C˙ C˙ S.

GENTLEMEN OF THE GRAND JURY: The last time I had the honour to address a grand jury in this court, I expounded to them the constitution of their country, as established by Congress on the 26th day of March last, independent of royal authority. I laid before them the causes of that important change of our Government — a comparison of these, with those that occasioned the English Revolution of 1688 — and the law resulting from the injuries in each case. I spoke to that grand jury of the late revolution of South-Carolina. I mean to speak to you upon a more important subject — the rise of the American Empire.

The great act in March last upon the matter constituted our country totally independent of Great Britain. For it was calculated to place in our hands the whole legislative, executive, and judicial powers of government; and to enable us, in the most effectual manner, by force of arms, to oppose, resist, and war against the British Crown. The act naturally looked forward to an accommodation of the unhappy differences between that Power and America. In like manner every declaration of war between independent States, implies a future accommodation of their disputes. But, although by that act we were upon the matter made independent, yet there were no words in it specially declarative of that independency. Such a declaration was of right to be made only by the General Congress; because the united voice and strength of America were necessary to give a desirable credit and prospect of stability to a declared state of total separation from Great Britain. And the General Congress, as the only means left by which they had a chance to avert the ruin of America, have issued a declaration by which all political connection between you and the State of Great Britain is totally dissolved.

Carolinians! heretofore you were bound. By the American Revolution you are now free. The change is most important — most honourable — most beneficial. It is your birthright by the law of nature — it is even valid by the fundamental laws of your country — you were placed in possession of it by the hand of God — particulars evidencing a subject of the highest import. Gentlemen of the grand jury, it is my duty to mark to you the great lines of your conduct; and so to endeavour to explain the nature of each, that you may clearly see your way, and thereby be animated in your progress to discharge those services which are required at your hands; and hence it is necessary for me to lay before you some observations upon the nature of the American Revolution, which by every tie, divine and human, you are bound to support. I shall therefore endeavour to draw your attention to this great subject, necessarily including the lines of your particular conduct.

It is but to glance an eye over the historick page, to be assured that the duration of empire is limited by the Almighty decree. Empires have their rise to a zenith, and their declension to a dissolution. The years of a man,

v2:1048

Great Britain was a part of this mighty empire. But, being dissolved from it, in her turn she also extended her dominion: — arrived at, and passed her zenith. Three and thirty years numbered the illustrious days of the Roman greatness. Eight years measure the duration of the British grandeur in meridian lustre! How few are the days of true glory! The extent of the Roman period is from their complete conquest of Italy, which gave them a place whereon to.stand that they might shake the world, to the original cause of their declension, their introduction of Asiatick luxury. The British period is from the year 1758, when they victoriously pursued their enemies into every quarter of the globe, to the immediate cause of their decline — their injustice displayed by the Stamp Act. In short, like the Roman empire, Great Britain in her constitution of government, contained a poison to bring on her decay, and in each case, this poison was drawn into a ruinous operation by the riches and luxuries of the East. Thus, by natural causes and common effects, the American States are become dissolved from the British dominion. And is it to be wondered at, that Britain has experienced the invariable fate of empire! We are not surprised when we see youth or age yield to the common lot of humanity. Nay, to repine that, in our day, America is dissolved from the British State, is impiously to question the unerring wisdom of Providence. The Almighty setteth up, and he casteth down: he breaks the sceptre, and transfers the dominion. He has made choice of the present generation to erect the American empire. Thankful as we are, and ought to be, for an appointment of the kind, the most illustrious that ever was, let each individual exert himself in this important operation directed by Jehovah himself. From a short retrospect, it is evident the work was not the present design of man.

Never were a people more wrapped up in a King than the Americans were in George the Third in the year 1763. They revered and obeyed the British Government, because it protected them; they fondly called Great Britain, home. But, from that time, the British counsels took a ruinous turn ; ceasing to protect, they sought to ruin America. The Stamp Act, Declaratory Law, and the duties upon tea and other articles, at once proclaimed their injustice, and announced to the Americans that they had but little room for hope; infinite space for fear. In vain they petitioned for redress! Authorized by the law of nature, they exerted the inherent powers of society, and resisted the edicts which told them they had no property; and that against their consent, and by men over whom they had no control, they were to be bound in all cases whatsoever. Dreadful information! Patience could not but resent them. However, regardless of such feelings, and resolved to endeavour to support those all-grasping claims, early in the year 1774 the British tyranny made other edicts — to overturn American chatters — to suspend or destroy, at the pleasure of the Crown, the value of private property — to block up the port of Boston in terrorem to other American ports — to give murder the sanction of law — to establish the Roman Catholick religion, and to make the King of Great Britain a despot in Canada; and as much so as he then chose to be in Massachusetts-Bay. And General Gage was sent to Boston with a considerable force to usher these edicts into action, and the Americans into slavery.

Their petitions thus answered even with the sword of the murderer at their breasts, the Americans thought only of new petitions. It is well known there was not then even an idea that the independence of America would be the work of this generation; for people yet had a confidence in the integrity of the British monarch. At length, subsequent edicts being also passed, to restrain the Americans from enjoying the bounty of Providence on their own coast,

v2:1049

Such were the sentiments of America until the arrival of the British act of Parliament declaring the Americans out of the royal protection, and denouncing a general war against them. But counsels too refined, generally produce contrary and unexpected events. So the whole system of British policy respecting America, since the year 1763, calculated to surprise, deceive, or drive the people into slavery, urged them into independence: and this act of Parliament, in particular, finally released America from Great Britain. Antecedent to this, the British King, by his hostilities, had as far as he personally could, absolved America from that faith, allegiance and subjection she owed him; because the law of our land expressly declares these are due only in return for his protection, allegiance being founded on the benefit of protection. But God, knowing that we are in peril by false brethren as well as by real enemies, out of his abundant mercy has caused us to be released from subjection, by yet a better title than the mere oppression of a man in the kingly office. This title is singular in its kind. It is the voluntary and joint act of the whole British Legislature, on the 21st day of December, 1775, releasing the faith, allegiance and subjection of America to the British Crown, by solemnly declaring the former out of the protection of the latter; and thereby, agreeable to every principle of law, actually dissolving the original contract between King and people.

Hence an American cannot, legally, at the suit of the King of Great Britain, be indicted of high treason; because the indictment cannot charge him with an act contra ligeantioe suoe debitum; for, not being protected by that King, the law holds that he does not owe him any faith and allegiance. So an alien enemy, even invading the Kingdom of England, and taken in arms, cannot be dealt with as a traitor, because he violates no trust or allegiance. In short this doctrine, laid down in the best law authorities, is a criterion whereby we may safely judge whether or not a particular people are" subject to a particular Government. And thus upon the matter, that decisive act of Parliament ipso facto created the United Colonies free and independent States.

These particulars evidence against the royal calumniator in the strongest manner. Let him not with unparalleled effrontery, from a throne continue to declare that the. Americans "meant only to amuse, by vague expressions of attachment and the strongest professions of loyalty, whilst they were preparing for a general revolt, for the purpose of establishing an independent empire." On the 1st of September, 1775, Richard Penn and Arthur Lee, Esqs˙, delivered to Lord Dartmouth, he being Secretary of State, a petition from the Congress to the King, when Lord Dartmouth told them, "no answer would be given." The petition contained this remarkable passage, that the King would "be pleased to direct some mode by which the united applications of his faithful Colonists to the Throne, in presence of their common councils, might be improved into a permanent and happy reconciliation, and that in the mean time measures might be taken for preventing the further destruction of the lives of his Majesty' s subjects." Yet, notwithstanding this, on the 26th of October following, from the throne, the King charged the Americans with aiming at independence! The facts I have stated are known to the world; they are yet more stubborn than the tyrant. But let other facts be also stated against him. There was a time when the American army before Boston had not a thousand weight of gunpowder — the forces were unable to advance into Canada, until they received a small supply of powder from this country, and for which the General Congress expressly sent — and when we took up arms a few months before, we

v2:1050

In the year 1774, General Gage arrived at Boston, to awe the people into a submission to the edicts against America. The force he brought was, by the oppressors, thought not only sufficient to compel obedience, but that this would be effected even at the appearance of the sword. But the Continent being roused by the edicts, General Gage, to his surprise, found that he had not strength sufficient to carry them into execution. In this situation things continued several months; while on the one hand the General received reinforcements, and on the other the people acquired a contempt for the troops, and found time to form their Militia into some order to oppose the force they saw-accumulating for their destruction. Hence in the succeeding April, when the General commenced hostilities, he was defeated. The victory produced the most important effects. The people were animated to besiege Boston, where it soon appeared that the British troops were too weak to make any impression upon them, thus acquiring military knowledge by the actual operations of war. The United Colonies were roused to arms. They new-modelled their Militia, raised regular troops, fortified the harbours, and crushed the Tory parties among them. Success fired the Americans with a spirit of enterprise.

In the mean time, the King passed such other edicts as, adding to the calendar of injuries, widened the civil breach, and narrowed the band of the American Union. And such supplies were, from time to time, sent for the relief of Boston, as not in any degree sufficient to enable General Gage to raise the siege, answered no other ends but to increase the number, heighten the spirit, advance the discipline of the American army, and to cause every member of the Union to exert every ability to procure arms and ammunition from abroad. Thus trained on evidently by the Almighty, these troops, reproached by General Gage when they first sat down before Boston, that "with a preposterous parade of military arrangements, they affected to hold the army besieged," in less than eleven months compelled the British army, although considerably reinforced, to abandon Boston by stealth, and to trust their safety, not to their arms, but to the winds. The British Ministry have attempted to put a gloss upon this remove of their army. However, the cannon, stores, and provisions, they left in Boston, are in our hands, substantial marks of their flight.

Thus there appears to have been a fatality in their counsels respecting Boston, the grand seat of contention; their forces being inadequate to the enterprise on which they were sent. And under the same influence have their attacks been directed against Virginia and North-Carolina, Savannah, and this capital. ' Such a series of events is striking. It surely displays an overruling Providence that has confounded the British counsels, to the end that America should not have been at first shackled, and thereby prevented from acquiring a knowledge of, and confidence in her strength, to be attained only by an experimental trial and successful exertion of it, previous to the British rulers doing acts driving her either into slavery or independence. The same trace of an overruling Providence is evident throughout the whole transaction of the English Revolution of 1688. King James received early information of the Prince of Orange' s intention to invade England , and Louis the XIV. offered the King a powerful assistance. But his counsels were confounded from on high. He paid little attention to the first — he neglected the last. The winds blew, and how opportunely have they aided us; the winds detained James' s fleet at anchor, while they, directing the course of the Prince, enabled him without any loss to land in England, at a time when no person thought of a revolution, which was destined to take place within but a few weeks. Unexpected, wonderful, and rapid movements, character the British and American Revolutions. They do not appear to have been premeditated by man. And from so close a similitude, in so many points, between the two revolutions",

v2:1051

As I said before, in my last charge, I drew a parallel between the causes which occasioned the English Revolution, and those which occasioned our local revolution in March last; and I examined the famous resolution of the Lords and Commons of England, at Westminster, declaring the law upon James' s conduct. The two first points of it applied to our own case in the closest manner, and in applying the third, treating of James' s withdrawing, I pointed out that the abdication of the regal Government among us, was immediately effected, not only by the withdrawing of the regal substitute, with the ensigns of government, but that King George had withdrawn himself, "by withdrawing the constitutional benefits of the kingly office, and his protection out of this country." Thus couching my thoughts upon the article of the withdrawing, in order that the parallel should be continued throughout as close as the subject would admit, without attempting to extract the essence from the substance of the resolution, to demonstrate that such a parallel was necessary; a mode which, the subject being new, might not then perhaps have been so generally satisfactory. But, as the American Revolution leads me again to mention that resolution, which in the strongest manner "justifies it, I make no scruple now to say, that the resolution, though appearing to point out several kinds of criminality, yet has only one idea thus variously represented:

"Resolved, That King James the Second having endeavoured to subvert the Constitution of the Kingdom, by breaking the original contract between King and people; and, by the advice of Jesuits and other wicked persons, having violated the fundamental laws, and having withdrawn himself out of the Kingdom, has abdicated the Government, and that the throne is thereby vacant."

But before I make any further observation upon this resolution, allow me to show you the sense of Scotland in the last, and of America in the present century, touching an abdication of government; and you will find that the voice of nature is the same, in either extremity of the globe, and in different ages.

The estates of Scotland having enumerated King James' s mal-administration, and in which there was no article of withdrawing, they declared, that "thereby he had forefaulted the rights of the crown, and the throne was become vacant." And the Representatives of the United States of America, stating their grievances under King George the Third, decreed, that "he has abdicated government here, by declaring us out of his protection, and waging war against us." And that "a prince whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people."

Thus in each case it is apparent the abdication or fore-faulting took place from but one and the same cause — the failure of protection. And this is the single idea that, I apprehend, is in the resolution of Westminster, Search to understand what is a breach of the original contract — what a violation of the fundamental laws wherein consisted the criminality of James' s withdrawing? Your inquiry must terminate thus — a failure of protection. Independent of the nature of the subject, the history of that time warrants this construction upon the withdrawing in particular. For upon James' s first flying from Whitehall, quitting the administration without providing a power to protect the people, he was considered by the Prince of Orange, and the heads of the English nation, as having then absolutely abdicated the Government, and terminated his reign; and they treated him accordingly upon his sudden return to Whitehall, from whence he was immediately ejected. In short, a failure of protection being once established, it necessarily includes and implies a charge of a breach of original contract — a violation of fundamental laws — and a withdrawing of the King. I do not mean the individual person, but the officer so called. For the officer being constituted to dispense protection, and there being a failure of it, it is evident, prima facie, that the officer is withdrawn ; and in reality, because the law will not admit that the officer can be present and not dispense protection, as the law ascribes to the King in his political capacity absolute perfection; and therefore it will intend a withdrawing and abdication, in exclusion of any idea of his being present and doing wrong. Protection was the great end for which mankind formed

v2:1052

Upon the whole, what is civil liberty, or by what conduct it may be oppressed, by what means the oppression ought to be removed, or an abdication or forefaulting of the Government may be induced, cannot precisely be ascertained and laid down as rules to the world. Humanity is interested in these subjects. Nature alone will judge, and she will decide upon the occasion without regard to precedent. In America, nature has borne British oppression so long as it was tolerable; but there is a load of injury which cannot be endured. Nature felt it. And the people of America, acting upon natural principles, by the mouths of their Representatives in Congress assembled, at Philadelphia, on the 4th day of July last, awfully declared — and revere the sentence! — "That these United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British Crown; and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved."

A decree is now gone forth, not to be recalled! And thus has suddenly arisen in the world, a new empire, styled the United States of America. An empire that as soon as started into existence, attracts the attention of the rest of the universe, and bids fair, by the blessing of God, to be the most glorious of any upon record. America hails Europe, Asia, and Africa. She proffers peace and plenty.

This revolution, forming one of the most important epochas in the history, not of a nation, but of the world, is, as it were, an eminence from which we may observe the things around us. And I am naturally led to explain the value of that grand object now in our possession and view, to state the American ability by arms to maintain the acquisition, and to show the conduct by which a patriotick grand jury may aid the establishment of our infant empire.

To make men sensible' of the value of the object now in our possession, we need no ingenuity of thought, or display of eloquence. To him who doubts of the meridian sun, it is sufficient to point to it. So in the present case, as well to demonstrate the value of the object as the justice of our claim to it, we need only hold it up to view. It is, to maintain among the powers of the earth, the separate and equal station to which the laws of nature and of nature' s God entitle us. A few months ago we fought only to preserve to the labourer the fruits of his toil, free from the all-coveting grasp of the British tyrant, alieni appetens, sui profusus, and to defend a people from being, like brute beasts, bound in all cases whatsoever. But these two last ingredients to make life agreeable, are now melted into, inseparably blended with, and wholly' included in the first, which is now become the object for which America, exnecessitate, wars against Britain. And I shall now point out to you the Continental ability, by arms, to maintain this invaluable station.

When, in modern times, Philip of Spain became the tyrant of the Low Countries in Europe, of seventeen Provinces which composed those territories, seven only effectually confederated to preserve their liberties, or to perish in the attempt. They saw Philip the most powerful prince in the Old World, and master of Mexico and Peru in the New — nations incessantly pouring into his territories floods of gold and silver. They saw him possessed of the best troops, and the most formidable navy in the universe, and aiming at no less than universal monarchy. But these seven Provinces, making but a speck upon the globe, saw themselves without armies, fleets, or funds of money; yet seeing themselves on the point of being by a tyrant bound in all cases whatsoever, nobly relying upon Providence and the justice of their cause, they resolved to oppose the tyrant' s whole force, and at least deserve to be free. They fought, they bled, and were often brought to the door of destruction They redoubled their efforts in proportion to their dancer. And the inhabitants of that speck of earth compelled the master of dominions so extensive that it was boasted the sun was never absent, to treat with them as a free and independent people!

For a moment, and with the aid of a fearful imagination, let us suppose that the American States are now as defenceless as the Hollanders then were, and that the King of Great Britain is now as powerful as Philip then was. Yet even such a state of things could not be a plea for any

v2:1053

Staggering beneath the load of an enormous debt, the very annual interest of which, in the year 1775, amounted to upwards of four millions eight hundred and eighty thousand pounds sterling, Great Britain scarcely supports the weight which is yet rapidly increasing. During the present year, she prosecutes the war at a charge of more than nineteen millions sterling, incurred by actual expenses, and by loss of revenue in consequence of the war. Her Frade her only resource for money, is how in a manner destroyed; for her principal trade, which was to this Continent, is now at an end; and she sustains heavy, very heavy, losses by the American captures of her West-India ships. Her manufactures are almost at their last morsel. Her publick credit is certain to fail even by a short continuance of the war. Her fleets are not half manned. And she is so destitute of an army, that she is reduced to supplicate even the petty German princes for assistance, and thinks it worth her while to make a separate treaty to procure only six hundred and sixty-eight men! — a last effort to form an army in America. But, after all this humiliating exertion, she has even upon paper raised a German army of only sixteen thousand eight hundred and sixty-eight men, who, with about fourteen thousand national troops and a few Hanoverian regiments, compose the whole military force that she can collect for the American service. Nay, so arduous a task was even this, that her grand army of but twenty-six thousand men, could not open the present campaign before the end of August last. Add to these particulars, the troops are unaccustomed to the sudden vicissitudes of the American climate and the extremes of cold, heat, and rain. They cannot proceed without camp equipage, because they are used to such luxuries. The very scene of their operations is a matter of discouragement to them, because they know not the country; and for their supplies of men, stores, and the greatest part of their provisions, they must look to Great Britain — and there is a vast abyss between. Hence their supplies must be precarious at best; and failing, they may be involved in ruin. A check may affect them as a defeat — a defeat in battle may annihilate their very army. Such seems to be the situation of Great Britain, while only the American war is on her hands. But do we not see France and Spain, her inveterate enemies, now watching for the critical moment when they shall swallow up her West India Islands? When this crisis appears, which, from the now quick arrivals of French vessels in America, and from the forces already collected, and others now daily poured into the islands by those Powers, cannot be far distant, what will be the situation of Great Britain!

On the other hand, America is possessed of resources for the war which appear as soon as inquired after; are found only by being sought for; and are but scarce imagined even when found. Strong in her union, on each coast and frontier she meets the invaders, whether British or Indian savages, repelling their allied attacks. The Americans now live without luxury. They are habituated to despise their yearly profits by agriculture and trade. They engage in the war from principle. They follow their leaders to battle with personal affection. Natives of the climate, they bear the vicissitudes and extremeties of the weather. Hardy and robust, they need no camp equipage, and they march with celerity. The common people have acute understanding; and there are those in the higher stations who are acquainted with the arts and sciences, and have a comprehensive view of things equally with those who act against them. In short, the American armies meet the war where they may be constantly recruited and subsisted, comforted by the aid of their neighbours, and by reflections upon the justice of their cause, and animated by seeing, that they are arrayed in the defence of all that is, or can be, dear to them.

From such a people every thing is to be hoped for,

v2:1054

Such a contrasted state of the powers of America and of Britain is, I apprehend, a just representation of their abilities with regard to the present war; and if America behaves worthy of herself, I see no cause to fear the enemy. However, in such a conflict, we ought to expect difficulties, dangers and defeats. "What, shall we receive good at the hand of God, and shall we not receive evil ?" Job' s perseverance in his duty under every calamity, at length raised him to the height of human felicity; and, if we are firm, even our defeats will operate to our benefit. Let us remember that it was to the danger in which the Roman State was reared that she owed her illustrious men and imperial fortune. The Roman dignity was never so majestick, her glory never so resplendent, her fortitude and exertions never so conspicuous and nervous, as when Hannibal, in the successive battles of Trabia, Thrasymenus and Cannce, having almost extirpated their whole military force, the very State was on the brink of dissolution. The Romans deserved, and they acquired victory.

And now, gentlemen of the grand jury, having in this manner considered the nature of the American Revolution upon circumstances of fact and principles of law, I am to mark the conduct which you ought to pursue, and which will enable you to aid the establishment of our infant empire. But, that I may naturally introduce this subject, I shall first state and explain to you the principal articles of the inquiry which you are sworn to make on the part of the State, and for the body of this district; and these articles I shall arrange under two heads. The one relating to crimes and misdemeanours immediately injurious to individuals, the other relating to such as are injurious to the State.

Those criminal injuries that affect individuals respect either their persons, habitations, or property. Of these injuries the most important are such as affect the person, and of such, the act depriving the person of life is the most enormous.

In the contemplation of law, every taking of life is a homicide; and, according to the particular circumstances of each case, this homicide is purely voluntary, including the cases of felony, as self-murder, murder respecting another, and manslaughter: Or, the homicide is purely involuntary, as per infortunium, misadventure: Or, of a mixed kind, ex necessitate; as se defendendo inducing a forfeiture; or being under the requisition or permission of law and not inducing any. And thus, homicide is either justifiable, excusable, or felonious.

It is justifiable in all cases ex necessitate; as when life is taken by the legal execution of a criminal, or for the advancement of justice, or for the prevention of some atrocious crime.

It is excusable in cases per infortunium, misadventure; as when life is taken by the doing a lawful act without any evil intention. So in cases se defendendo; as a man being attacked without any provocation on his part, and having bona fide retreated as far as he safely could, when for self-preservation he kills the aggressor. And although this last arises ex necessitate, and it would therefore seem to be rather justifiable than excusable, yet the law entitles it necessitas culpabilis, and thereby distinguishes it from the other. For the law so highly respects the life of a man, that it always intends some misbehaviour in the person who

v2:1055

But homicide is felonious in all cases of manslaughter, murder, and self-murder. In cases of manslaughter, as killing another without any degree of malice, and this killing may be either voluntary by a sudden act of revenge on a sudden provocation and heat, or it may be, yet not strictly so, involuntary, being in the commission of some unlawful act under the degree of felony; for this killing being the consequence of the unlawful act voluntarily entered upon, the law, because of the previous intent, will transfer this from the original to the consequential object.

In cases of murder; as killing another person, ex malitia proecogitata. And here it is necessary that I particularly explam what the law considers as malice prepense. Malice prepense then, is an inclination of the mind, not so properly bearing ill will to the person killed, the commonly received notion, as containing any evil design, the dictate of a wicked and malignant heart. The discovery of this secret inclination of the mind must arise, because it cannot any otherwise, only from the external effects of it; and by such evidence the malignity of the mind is held either express in fact or implied in law. Thus, malice prepense is held to be express in fact, when there is evidence of a laying in wait, or of menacings antecedent, grudges, or deliberate compassings to do some bodily harm. Even upon a sudden provocation, the one beating or treating another in an excessive and cruel manner, so that he dies, though he did not intend his death, the slayer displays an express evil design, the genuine sense of malice. This is evidence of a bad heart; and the act is equivalent to a deliberate act of slaughter. So any wilful action, likely in its nature to kill, without its being aimed at any person in particular: For this shows an enmity to all mankind. So if two or more come to do any felony, or any unlawful act, the probable consequence of which might be bloodshed, and one of them kills a man, it is murder in them all, because of the unlawful act, the malitia proecogitata, or evil intended. But malice prepense is held to be implied in law, when one kills an officer of justice in the execution of his office, or any person assisting him, though not specially called. Or when, without sufficient provocation, and no affront by words or gestures only is a sufficient provocation, a man suddenly kills another. Or when, upon a chiding between husband and wife, the husband strikes the wife with a pestle or other dangerous weapon, and she presently dies. These and similar instances, are evidences of a malice prepense on the part of the slayer; and he shall be held guilty of murder. In cases of self-murder, there must be a voluntary and deliberate putting an end to one' s existence; or doing some unlawful malicious act, the consequence of which is his own death. In a word, all homicide is presumed to be malicious, until the contrary is made to appear in evidence.

There is a regular gradation of importance in the component parts of the universal system; and, therefore, there must be a scale marking the degrees of injury. We have examined the highest injury that can be committed or perpetrated upon the person of an individual — let us now turn our attention to such injuries against the person, as are of an inferiour nature.

Of these the first in degree is mayhem, which is the cutting out, with malice prepense, or disabling the tongue, putting out an eye, slitting the nose, cutting off a nose or lip, or depriving another of the use of such of his members as may render him the less able to defend himself, or annoy his adversary. The next is rape. Then the infamous crime against nature. These are felonies. But there are yet other injuries against the person which, being of a less flagrant degree, are, by the tenderness of the law, described under the gentler term of misdemeanours. Such are assaults, batteries, wounding, false imprisonment, and kidnapping. Here, in a manner, terminates the scale of injuries against the person. We will now state such as may be perpetrated against his mansion, or habitation.

By the universal consent of all ages, the dwelling-house of man was and is endowed with peculiar immunities and valuable privileges. Among the ancients, if even an enemy reached the fire-place of the house, he was sure of protection. Thus we find Coriolanus at the fire-place of Tullus Aufidius, chief of the Volscian nation, discovering himself to Aufidius, his publick and private enemy, and supplicating

v2:1056

Arson is an injury that tends by fire to annihilate the habitation of another person, or other house, that being within the curtilage or homestall, may reasonably be esteemed a parcel of it, though not contiguous. So a barn in the field, with hay or corn in it. But this injury by fire must be done with a malicious intent, otherwise it is only trespass.

Burglary is a breaking and entering in the night time the mansion-house of another, with intent to commit some felony therein, whether the felonious intent be executed or not. And all such houses are the objects of burglary, and of housebreaking, as are described in the case of arson.

But, to violate this place of protection in the day, by robbing therein, and putting any dweller in fear, although there be no actual breach of the house; or by breaking and robbing in the house, a dweller being therein, and not put in fear; or by robbing or breaking the house, actually taking something, none being in the house; or by feloniously taking away something to the value of thirty-five pounds currency, or upwards, no person being in the house; or by breaking the house with intent to commit a felony, any person being in the house and put in fear, though nothing be actually taken — any such violation is called housebreaking — a crime not of so atrocious a nature as burglary. For, in the contemplation of our law, as well as of all others, violency perpetrated in the night, are of a more malignant tendency than similar ones by day: Because attacks in the night occasion a greater degree of terrour; and because, they are in a season by nature appropriated to the necessary rest and refreshment of the human body, which is then, by sleep, disarmed of all attention to its defence.

With respect to injuries against a man' s personal property, they are to be considered under three heads: larceny, malicious mischief, forgery. And larceny, the first of these, is either simple or mixed.

Simple larceny, or common theft, is a felonious and fraudulent taking and carrying away the mere personal goods of another — here no violence or fear is implied. If goods so taken are above the value of seven shillings currency, the offence is termed grand larceny; but if thev are not exceeding that value, the act is petit larceny Mixed larceny has in it all the ingredients of simple larceny; but it is aggravated by a taking from the house or person; and this taking is yet aggravated if it is under the impression of violence or fear. Such a taking in the house, with or without violence or fear, may or may not fall within the crimes of burglary orhousebreaking, according to the circumstances. And such a taking from the person, without, or with violence or fear, will be but simple larceny in the first case; in the other, it is a robbery, and the value is of no consideration.

Malicious mischief is a species of injury that bears a near relation to the crime of arson. A dwelling is the object of arson; but other property is the subject for malicious mischief to operate upon; and indeed this spirit of wanton cruelty has a wide field of action. This horrible spririt displays itself by burning or destroying the propeny of another, as a stack office, corn, or other grain; or any tarkiln, barrels of pilch, turpentine, rosin, or other growth, product or manufacture of this State; or killing or destroying any horses, sheep, or other cattle.

At length the crime of forgery, concludes the calendar of publick offences against the property of an individual. I need only define the crime: it is a fraudulent making or alteration of a writing to the prejudice of another person.

Having in this manner marked out to you the distinguishing

v2:1057

It is not by any means necessary that I trace these crimes, as they are branched by the law. The present publick service requires your immediate particular attention to offences done against only four acts of Assembly — the patrol and negro laws; the law against counterfeiting the certificates issued by the late Houses of Assembly, or the currency issued by the Congress of the Continent, or of this country; and the law to prevent sedition, and to punish insurgents and disturbers of the publick peace.

The two first laws are calculated to keep our domesticks in a proper behaviour. The two last were expressly formed as two pillars to support our new Constitution; and therefore, these last are your most important objects. I shall fully explain them.

The act against counterfeiting extends to all persons who counterfeit, raze or alter, or utter, or offer in payment, knowing the same to be counterfeited, razed or altered, any certificate or bill of credit, under the authority of the late Commons House of Assembly, or the Congresses of this country, or of the continent.

The law to prevent sedition guards against those actions as, in such a crisis as this, might reasonably be expected to operate against our present honourable and happy establishment. And the variety and importance of those actions, make it necessary for me to particularize them to you.

This salutary act touches all persons taking up arms against the authority of the present Government; or who, by violence, words, deeds, or writings, cause or attempt to cause, induce, or persuade any other person to do so. In like manner, all persons who give intelligence to, or hold correspondence with, or aid or abet any land or naval force sent by Great Britain, or any other force or body of men within this State with hostile intent against it. So those who compel, induce, persuade, or attempt to do so, any white person, Indian, free negro, or slave, to join any force under authority derived from Great Britain. And so all persons who collect, or procure them to be assembled, with intent in a riotous and seditious manner, to disturb the publick peace and tranquillity; and by words, or otherwise, create and raise traitorous seditions or discontents, in the minds of the people against the publick authority.

Thus having stated to you such criminal injuries against an individual, or the State, as may be most likely to come within your notice, it is a natural consequence, that I describe the person by law held capable of committing such injuries.

In the first place, the party must be of sound memory at the time of committing the offence, and it is the leading principle in every case. If the party is under seven years of age, no evidence can possibly be admitted to criminate; because the law holds, that the party cannot discern between good and evil. But if the accused is above seven and under fourteen, he is liable to be criminated, if at the time of his committing the injury, his understanding was so ripe as to occasion him to show a consciousness of guilt, the rule being malitia supplel atatem. And if the party is of the age of fourteen, which is the age of discretion, the law

v2:1058

All those particulars relating to the person, habitation and property of an individual; those respecting the safety, peace and tranquillity of the State ; and these describing the perpetrator of criminal injuries, are so many proper heads for your diligent inquiry. And such offenders and offences being within your knowledge, you must make due presentment of them. You are to hear evidence only on the part of an information to you of an offence; for an indictment by you is only in the nature of a solemn and publick accusation, which is afterwards to be tried and determined by others. You are only to examine whether there be sufficient cause to call upon the party to answer. Twelve of you, at least, must agree in opinion that the accused ought to undergo a publick trial; so twelve other jurors are to declare him innocent or guilty. Happy institutions! whereby no man can be declared a criminal, but by the concurring voices of at least four and twenty men, collected in the vicinage by blind chance, upon their oaths to do justice; and against whom, even the party himself has no exception!

Thus, gentlemen of the grand jury, with the best intentions for the publick service, however executed, having declared to you that you are not bound under, but freed from the dominion of the British Crown, I thought myself necessarily obliged, and I have endeavoured to demonstrate to you, that the rise and fall of empires are natural events; that the independence of America was not, at the commencement of the late civil war, or even at the conclusion of the last year, the aim of the Americans; that their subjection to the British Crown, being released by the action of British oppression, the stroke of the British sword, and the tenour of a British act of Parliament, their natural rise to empire was conducted by the hand of God; that the same strong hand, by proceedings equally unexpected, wonderful and rapid as in our case, conducted the English Revolution of 1688; that the Revolutions in England and Scotland at that period, and in America now, giving a new epocha to the history of the world, were founded in the same immediate cause, a failure of protection; that those revolutions concurred in one grand evidence of the feelings of nature on such a subject; that every species of mal-administration in a King is to be traced to a failure of protection, which is the only instrument working his abdication; that the object for which we contend, is just in its nature and of inestimable value; that the American Revolution may be supported with the fairest prospect of success by arms; and that it may be powerfully aided by a grand jury.

Gentlemen, I do most cordially congratulate you, placed as you are in a station honourable to yourselves, and beneficial to your country. Guardians of the innocent, you are appointed to send the robber, the murderer, the incendiary, and the traitor to trial. Your diligence in inquiring for such offenders is the source of your own honour, and a means of your country' s safety ; and, although no such offenders be found, your laudable search will yet tend to curb a propensity to robbery, murder, sedition, and treason. See, gentlemen, what great advantages may result from your vigilant and patriotick conduct! Your ears ought to be shut to the petitions of friendship, and to the calls of consanguinity; but they ought to be expanded to receive the complaints of your injured country, and the demands of impartial justice. Brutus inflicted upon his sons the ultimum supplicium, for conspiring to reestablish the regal government in Rome. And, if a similar occasion should arise in America, which God forbid, I trust a Brutus will not be wanting. Let those, if there are any such, who treacherously or pusillanimously hanker after a return of regal government, remember such things and tremble. Let us ever remember, rejoice, and teach our children, that the American Empire is composed of States that are, and of right ought to be, free and independent;" that they are absolved from all allegiance to the British Crown;" and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.