
    Present: The Honourable Ch. Just., Lynde, & Cushing.
    The Charge to the Grand Jury by Ch. Justice.
    1765.
   TO relieve the Oppressed, to guard the Innocent, to preserve the Order of Society, and the Dignity of Government is a noble Principle of the Mind. This is the Duty of every Individual of the Community, but is more particularly incumbent, Gentlemen, upon you, as the Grand Inquest for this County.

Our Business, Gentlemen, at this Time, is to distribute Justice, and to punish all Crimes and Offences. It is this latter Part of our Duty that you, Gentlemen, are to assist us in; to point out and bring forward all Crimes and Offences against the Tranquillity and Order of Society which shall by any Means come to your Knowledge.

But before I enter upon the particular Branch of your Duty, I shall observe, that it is a very common Thing in England to present Offences, when there is no Offender known, for wherever there is the one, there is always the other. Whenever there are any notorious Offences, as I observed before, in England, they always present them. I remember in particular (if it may be called an Offence) that at Middlesex, the Jury presented, that there was unnecessary Multiplication of licensed Houses, which tended greatly to the Destruction of the Health and Morals of the People. I do not mention this as the Case here, but only by Way of Example, to show, that wherever you find any notable Things done that are detrimental, or any Things neglected which ought especially to be done that are beneficial to Society, you have, Gentlemen, a discretionary Power to present them.

I would have you, Gentlemen, to enquire into the State of our Goal, for it has been represented, and I believe it but too true, that it is a moll shocking, loathsome Place. For my own Part, when I have been obliged by the Nature of my Office to commit any of my Fellow Creatures, I could not help feeling for them, when I thought where I was sending them — a dark, damp, and pestilential Room — to such a Place to send our Fellow Creatures must cause the most tender and exquisite Sensations to Men of the least Sensibility or Humanity. I do not think there is such a Place for the Reception of Prisoners anywhere in the King’s Dominions. I do not say this by Way of Reflection on the Gentlemen who have the proper Care of our Goal, nor upon the Sheriff of this County, the Keeper of our Prison, who I know to be a Man of great Tenderness: But from whatever Cause, Gentlemen, it arises, whether from Neglect or a Misunderstanding among the Gentlemen whose Province it is to look after it, or any Cause whatever, ’tis your Duty to give your particular Attention to it. I remember, Gentlemen, a Case in some late Reports, of a Sheriff committing a Man to a new plaittered, wet and unwholefome Room, by which he was put into violent Fever and died; the Sheriff on this was committed, tried and hanged. () Our Goal is not intended as a Punishment, it is only to keep Offenders for Trial, or after Trial till Sentence is fulfilled. Every Man in the Eye of the Law is presumed innocent till proved guilty. How preposterous then, Gentlemen, is it to commit a Man to a Place, who whether innocent or not must run the Hazard of his Life — a Place which will bring a Man of the best Constitution in Danger of his Life; how long then will a Person of a weakly Constitution survive? I must, Gentlemen, repeat it again, this demands your peculiar Attention, and the Attorney General will give any Directions you may want.

A Government always thinks itself happy when the Grand Jury can find no Offenders to present. This is not our Case. There has been a most scandalous and notorious Riot, not only against Common Law, Natural Law, that is, the Law which every Man has implanted in him, but directly against a Law of this Province; () nay the Offenders had Notice of the very Law, and warned against a Violation of it; and I question whether there is any Law of this Province more universally known than this. For your Direction, Gentlemen—Riots, Routs, and unlawful Assemblies are where there are any Number not less than three, where they come with an Intent to commit some unlawful Ad — if they take not one Step they ought to be punished for this Intent; if they move forward, it is a Rout; if they commit any one Ad, it is a Riot; every Man ought to use his utmoil Endeavour for the Suppression of such scandalous Breaches of the Public Peace; and I am informed that the Magistrates and others of this Town did their utmoil to prevent that Insult upon Government in this notorious Riot, but it seems all proved ineffectual—You cannot be insensible that I have Reference to that lawless Mob who assembled on the 5th of last November, () moil atrociously broke the Peace, put every Member of this Town in Confusion, and many in the utmost Hazard of their Lives; and I would mention for the Benefit of all present, as they are a pretty large Concourse of People, that Persons in general do not know what a Danger they run, in mixing in such a Mob; if there had been any Person killed, every Man there would have been liable to be tried for his Life, and by a rigorous Construction of the Law, might have lost it: It would have lain upon every Person to have proved how he came there and what was his Business; and every Person who could have been proved to have been aiding before the Fact, encouraging and assisting after it was begun, and actually doing, or protecting and screening after it was committed, must have come to his Trial, and for aught I see must have been convicted; for there are no Accessories in Murder; all are Principals.

There is another Offence—you have seen it in the public Prints — of Robbery on the Highway — Money demanded and actually taken; an Offence very heinous in its Nature, and very rare in this Country, and I hope it will be universally discouraged; and I question whether it is universally known, that by a late Law of this Province, it is Death to commit a Robbery on the Highway.

Another Offence — I take Notice of it with Pleasure — that was formerly very common, but has not of late been heard of among us — I mean the Forgery and Counterfeiting our Public Bills of Credit: The Rigour of the Law, the Severity with which this Court has adjudged in several signal Instances, their full Determination to persevere with the same Rigour in all similar Cases has happily been the Cause of its Suppression.

Yet there is another Kind of Forgery, very pernicious to the Commonwealth, which will come before you; the Forgery of Notes of Hand: You perceive, Gentlemen, what Confusion such a Practice must introduce, how wicked a Crime this is in its Nature, and how destuctive its Consequences; on this Head I need say no more.

I will take up no more of your Time, Gentlemen. I will spare you, the Court and the Audience; only observing further that all Offences, from Murder, the highest of all Felonies, down to simple Felony, are subject to your Inquiry; yet though you should be satisfied that there have been a Number of these lesser Offences committed, as these come more immediately under the Cognizance of the lower Courts, you may omit taking Notice of such Misdemeanors, unless you should think there has been any gross Neglect in the Courts of Inferiour Jurisdiction.

But before I leave you, Gentlemen, I would observe one Word more relative to your Duty. In the Petty Jury, Gentlemen, you are sensible that all must agree in the Verdict; but to every Indictment the Agreement of twelve only is sufficient. One other Point there remains, Gentlemen, for you to observe, and that is, you are to keep your own and the King’s Council; this, Juries in general, disregarding their Oaths, do not, strictly enough, observe — nay, I myself have often heard that the Jury had found a Bill, long before it was published in Court. But, Gentlemen, even after that, you are not liberated from your Oaths—you are to keep the Names of the Informers, and Everything else that comes before you in your present Capacity, secret; and unless this is done how will Offenders ever be brought to Justice? An Informer comes, purely for the public Good, to reveal some gross Abuse of the Laws, and hoping he may do some Good, yet unwilling that he should be known to be the Person. Soon after it is blazed abroad that he was the Informer, and every Circumstance aggravated to make him odious; will he ever again hazard his Reputation — nay, even his Property ? will not this deter many good Men from doing eminent Services to the Public ? In Consequence of which many heinous Crimes will go unpunished, many wholesome Laws will be broken with Impunity. ()

And finally, Gentlemen, I would observe, that though it may give you great Uneasiness to bring Offenders to Punishment, yet this, Gentlemen, should not prevent the Performance of what is incumbent on you as the Grand Inquest. ’Tis the Good of the Whole demands it; and that Self-Approbation which always attends a Consciousness of having discharged our Duty will ever be an ample Recompense.

I shall add no more; but only pray that Infinite Wisdom may direct you, and that the Supreme Fountain of all Goodness may assist you in the Profecution. 
      
       Mr. Greenleaf.
     
      
      (1) Quœre, whether the Chief Justice had not in his mind the case Rex v. Huggins, 2 Stra. 882; Ld. Raym. 1574, where the warden of the Fleet Prison was indicted for the murder of a prisoner by confining him in a “ new-built room, the walls being damp and unwhole-some.” The offence was held to be murder, but the prisoner was acquitted on the ground that it was the act of a deputy. A series of similar cases is reported in 9 Howell’s State Trials, 146-234, but neither of them resulted in a conviction.
     
      
      (2) Anc. Chart. 595. This statute was for the suppression of disorders caused by “ tumultuous companies carrying about with them pageants and other shews through the streets and lanes of the town of Boston.” See note (3) infra.
     
      
      (3) The anniversary of the Gunpowder Plot, known as “ Pope Day,” had been for many years the occasion of an annual riot between the “ north-enders ” and “ south-enders ” in the town of Boston. Each of these rival factions celebrated the day by a procession carrying the effigies of the Pope, the Devil and the Pretender upon a platform, under which finall boys, by means of rods connected with the figures, caused them to rise up and look into chamber windows as they palled. The householders were called upon for contributions for the celebration under the penalty of broken windows; and the two processions, after parading the town, met in Union Street, where they sought for the figures, which were afterwards burnt, either on Copps’ Hill or the Common, according as victory remained with the north or south end. See Drake’s History of Boston, p. 661.
      Before the next anniversary in 1765, the general indignation occasioned by the Stamp Act had caused a reconciliation to be effected, and both parties joined in the escort of a “ Union Pope,” together with several additional figures representing Tyranny, Oppression, Slavery, &c. Mass. Gazette, Nov. 7, 1765; Bolton Evening Post, Nov. 11, 1765. The description of this celebration which appeared in both the above papers, concludes as follows: — “This Union and one other more extensive may be looked upon as the (perhaps the only happy effects arising from the S——p A——t.”
     
      
      (4) See John Adams’s Diary, under the date of the following December. — “ Who has made it his constant endeavour to discountenance the odium in which informers are held ? Who has taken occasion in fine-spun, spick and span, spruce, nice, pretty, easy, warbling declamations to Grand Inquests, to render the characters of informers honourable and respectable ? ” 2 John Adams’s Works, 169.
     