The Prose Works of Jonathan Swift, D.D. — Volume 06 / The Drapier's Letters

by Jonathan Swift

I who have always professed myself a Whig do confess it has mine.

I beg leave in this place to explain what I intended in my last by the words, "unless by leave or order of the court," lest whilst I plead for justice I should do an injury to your lordship.

I do declare I never heard that story of your lordship, and I hope no man did believe it of you. My intention was by that hint to remember you of Judge U—p—n and a certain assizes held at Wicklow, as I believe your lordship understood it, and as I now desire all the world may.

Having learned from your lordship and other lawyers of undoubted abilities, that no judge ought by threats or circumvention to make a grand-juryman discover the king's counsel his fellows' or his own I should not at present say anything in support of that position. But that I find a most ridiculous and false explanation seem to mislead some men in that point: Say they, by the word counsel is understood, such bills as are before the grand jury and the evidence the prosecutors for the crown have to support the charge against the subject—Lest that being known the party indictable may fly from justice, or he may procure false witnesses to discredit the evidence for the king, or he may by bribes and other indirect measures take off the witnesses for the crown.

I confess I take that to be the meaning of the word counsel, but I am certain that is not all that is meant by it, that is what must be understood when it is called the king's counsel, id est, the counsel or reasons for which the king by his servants, his attorney-general or coroner, has drawn and sent to the grand jury a charge against a subject.

But the counsel of a juror is a different thing, it is the evidence, the motives and reasons that induce him or his fellow-jurors to say billa vera or ignoramus, and the opinion he or they happen to be of when the question is put by the foreman for finding or not finding: This counsel every man is sworn to keep secret, that so their opinion and advice may not be of prejudice to them hereafter, That as they are sworn to act without favour or affection, so may they also act without FEAR. Whereas, were it otherwise the spirit of revenge is so universal, there are but few cases wherein a juror could act with safety to himself; either the prosecuted, as where the bill is found, or the prosecutor, where it is returned ignoramus, may contrive to defame the jurors who differ from them in opinion: As I am told has happened to some very honest citizens who are represented to be Jacobites since their opinions were know to be against ——. And sometimes revenge or ambition may prompt men to carry it further, as in the case of Mr. Wilmer, who in King Charles 2d's time was very severely handled for being one of an ignoramus jury.—— 'Tis not necessary to say whom he disobliged by being so.——But if I remember right his case was this.

He was a merchant, (and as I said, an ignoramus juryman) had covenanted with a servant boy to serve him in the West Indies, and accordingly sent him beyond sea: Upon suggestion and affidavit by which any person might have it, a writ de homine replegiando was granted against Mr. Wilmer; the sheriffs would have returned on the writ the agreement and the boy's consent, but the court (in the case of this Wilmer) Easter 34, Cha. 2. [i.e., Charles the Second] in B.R. ruled they must return replegiari fecimus or elongavit, that is, they had replevy'd the boy, or that Wilmer had carried him away where they could not find him, in which last case Mr. Wilmer, though an innocent person must have gone to gaol until he brought the boy into court or he must have been outlawed—Shower's Rep. 2 Part.

I do not say this that I think the same thing will be practised again, or anything like it, though I know that very homely proverb, "More ways of killing a dog than hanging him."—But I instance it to shew, the counsels of every grand juryman should be kept secret, that he may act freely and without apprehensions of resentment from the prosecuted or prosecutor.

My resolution when I writ to you last, was, not to have said anything in this concerning the power of dissolving or dispensing, but as I have been forced to say something of the dispensing, for the same reason I must of the dissolving power.—A power undoubtedly in effect including that of returning, which makes me wish two men of great interest in this kingdom, differing in every other thing, had not undertaken to defend it, or they had better reasons for it than I have yet heard.

'Tis said, "This power is in the court as a right of resistance is in the people, as the people have a power superior to the prerogative of the prince, though no written or express law for it; so of necessity though no statute directs it, and it may seem to overturn the greatest security men have for their liberties, yet the court has a power of dissolving grand juries, if they refuse to find or present as the court shall direct."