Amendments V and VI
Earl of Shaftesbury's Trial8 How. St. Tr. 759, 771--74 1681
(Sir F. Withins moved, after the charge to the grand jury, that the evidence be heard in court; and Pemberton, L.C.J., declared that he would grant the motion; the jury then desired to have a copy of their oath, which was given them, and they withdrew; after returning shortly, the following colloquy ensued):
Foreman. 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.
[Pemberton, L.C.J.] Look ye, gentlemen of the jury, it may very probably be, that some late usage has brought you into this error, that it is your right, but it is not your right in truth. . . . What you say concerning keeping your counsels, that is quite of another nature, that is, your debates, and those things, there 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.
Foreman. My lord, if your lordship pleases, I must beg your lordship's pardon, if I mistake in anything, it is contrary to the sense of what the jury apprehend. First, they apprehend that the very words of the oath doth bind them, it says, "That they shall keep the counsel's, and their own secrets:" Now, my lord, there can be no secret in public; the very intimation of that doth imply, that the examination should be secret; besides, my lord, I beg your lordship's pardon if we mistake, we do not understand anything of law.
Mr. Papillon [a juror]. . . . [I]f it be the ancient custom of the kingdom to examine in private, then there is something may be very prejudicial to the king in this public examination; for sometimes in examining witnesses in private, there come to be discovered some persons guilty of treason, and misprision of treason, that were not known, nor thought on before. Then the jury sends down to the court, and gives them intimation, and these men are presently secured; whereas, my lord, in case they be examined in open court publicly, then presently there is intimation given and these men are gone away. Another thing that may be prejudicial to the king, is, that all the evidences here, will be foreknown before they come to the main trial upon issue by the petty jury; then if there be not a very great deal of care, these witnesses may be confronted by raising up witnesses to prejudice them, as in some cases it has been: Then besides, the jury do apprehend, that in private they are more free to examine things in particular, for the satisfying their own consciences, and that without favour or affection; and we hope we shall do our duty.
[Pemberton, L.C.J.] . . . [T]he king's counsel have examined whether he hath cause to accuse these persons, or not; and, gentlemen, they understand very well, that it will be no prejudice to the king to have the evidence heard openly in court; or else the king would never desire it.
Foreman. My lord, the gentlemen of the jury desire that it may be recorded, that we insisted upon it as our right; but if the court over-rule, we must submit to it.
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