478 Appendix to Council Proceedings, 1681-85/6.

Calvert
Papers.

the barr assigned the following points to be Argued in Law
viz.
1^st That the Comission of Oyer & Terminer doth give full
power & Authority to hear & determine all treasons felonies
&c. within & without the bounds of Virginia but that all such
tryals & determinacons shall be Secundum Legem & consue-
tudinem Angliae & therefore he ought (& by the Laws of this
Colony itselfe) to have been tried by a Venire of the Vicinage
where the fact was Comitted viz. of Calvert County in Mary-
land w^ch he was not therefore the tryall vicious & the same
was reinforced by his Councill.
The Court overruled the foregoing point for that the words
of his Maj^ts Cofnission of Oyer & Terminer are per Sacra-
mentum proborum & Legalium hominum De Colonia nostra
Virginia.
2^dly That in all Indictments certainty is required that the
prisoner at the barr may not Suffer prejudice for want of cer-
tainty whereto he may plead & that in the Indictm^t whereby
he was Arraigned there was noe Specification of the river
Creek Towne parish or Hund^d nor of the County nor pro-
vince & therefore the Comission of Oyer & Terminer hath
not been well pursued in that respect.
To which the Court made answer th' the Indictm^t was
as certaine as possible viz. that the fact was Comitted on
board his Maj^ts Ketch the Quaker in the great Cabbin thereo
rideing within the Capes of Virginia.
3^dly The prisoner insisted that the first pannell of the
Jurors for his tryall did not amount to the numb^r of four &
twenty persons whereas by the English Laws & Customs that
number is requisite to make a Legall pannell.
To which it was replied by the Court that the pannell is only
the Jury sworne & that an Array sometimes consists of twenty
four sometimes of thirty six that thereby the prisoner may
have liberty to make his Exceptions against the full number
allowed by Law if he pleases & that seeing noe person was
admitted & sworne on the Jury of life & Death against whom
the prisoner Coll. Geo. Talbot Excepted & that the Jurors
were called over untill the number of twelve was by his free
choice admitted to be his Jury the Court therefore resolved
the pannell to have been Lawfull seeing there was more
persons Impannelled if the prisoner had made more Excep-
tions.
4^thly The prisoner then moved that the Fundamentall Laws
& Customs of England do require that the Indictm^t shall be
found in the proper County where the fact is Comitted before
any tryall can be had thereon & that noe presentm^t had been
made of this fact by any Coroners Inquest nor Grand Jury of
the County nor Province where the s^d offence was Comitted.