CHAPTER THE TWENTY SEVENTH.
OF TRIAL, AND CONVICTION.

THE feveral methods of trial and conviction of offenders, eftablifhed by the laws of England, were formerly more numerous than at prefent, though the fuperftition of our Saxon anceftors : who, like other northern nations, were extremely addicted to divination; a character, which Tacitus obferves of the antient Germans ^a. They therefore invented a confiderable number of methods of purgation or trail, to preferve innocence from the danger of falfe witneffes, and in confequence of a notion that God would always interpofe miraculoufly, to vindicate the guiltlefs.

I. THE moft antient fpecies of trial was that by ordeal; which was peculiarly diftinguifhed by the appellation of judicium Dei; and fometimes vulgaris purgation, to diftinguifh it from the canonical purgation, which was by the oath of the party. This was of two forts ^b, either fire-ordeal, or water-ordeal; the former being confined to perfons of higher rank, the latter to the common people ^c. Both thefe might be performed by deputy :

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^a de mor. Germ. 10.
^b Mirr. c. 3. §. 23.
^c Tenetur fe purgare is qui accufatr, per Dei judicium; fcilicet, per calidum ferrum, vel per aquam, pro diverfitate conditionis hominum: per ferrum calidum, fi fuerit home liber; per aquam , fi fuerit rufticus. (Glanv. l. 14. c. 1.)
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but the principal was to anfwer for the fuccefs of the trial; the deputy only venturing fome corporal pain, for hire, or perhaps for friendfhip ^d. Fire-ordeal was performed either by taking up in the hand, unhurt, a piece of red hot iron, of one, two or three pounds weight; or elfe by walking, barefoot, and blindfold, over nine redhot plowfhares, laid lengthwife at unequal diftances: and if the party efcaped being hurt, he was adjudged innocent; but if it happened otherwife, as without collufion it ufually did, he was then condemned as guilty. However, by this latter method queen Emma, the mother of Edward the confeffor, is mentioned to have cleared her character, when fufpected of familiarity with Alwyn bifhop of Winchefter ^e.

WATER-ordeal was performed, either by plunging the bare arm up to the elbow in boiling water, and efcaping unhurt thereby: or by cafting the perfon fufpected into a river or pond of cold water: and, if he floated therein without any action of fwimming, it was deemed an evidence of his guilt; but, if he funk, he was acquitted. It is eafy to trace out the traditional relics of this water-ordeal, in the ignorant barbarity ftill practifed in many countries to difcover witches, by cafting them into a pool of water, and drowning them to prove their innocence. And in he Eaftern empire the fire-ordeal was ufed to the fame purpofe by the emperor Theodore Lafcaris; who, attributing his ficknefs to magic, caufed all thofe whom he fufpected to handle the hot iron: thus joining (as has been well remarked^f) to the moft dubious crime in the world, the moft dubious proof of innocence.

AND indeed this purgation by ordeal feems to have been very antient, and very univerfal, in the times of fuperftitious barbarity. It was know to the antient Greeks : for in the Antigone of

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^d This is ftill expreffed in that common form of fpeech, of ”going through fire and water to ferve another.”
^e Tho. Rudborne Hift. maj. Winton. l. 4. c. 1.
^f Sp. L . b. 12 c. 5.
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Sophocles ^g, a perfon, fufpected by Creon of a mifdemefnor, declares himfelf ready “to handle hot iron and to walk over fire,” in order to manifeft his innocence; which, the fcholiaft tells us, was ten a very ufual purgation. And Grotius^h gives us many inftances of water-ordeal in Bithynia, Sardinia, and other places. There is alfo a very peculiar fpecies of water-ordeal, faid to prevail among the Indians on the coaft of Malabar; where a perfon accufed of any enormous crime is obliged to fwim over a large river abounding with crocodiles, and, if he efcapes unhurt, he is reputed innocent. As in Siam, befides the ufual methods of fire and water ordeal, both parties are fometimes expofed to the fury of a tiger let loofe for that purpofe: and, if the beaft fpares either, that perfon is accounted innocent; if neither, both are held to be guilty; but if he fpares both, the trial is incomplete, and they proceed to a more certain criterion ⁱ.

ONE cannot but be aftonifhed at the folly and impiety of pronouncing a man guilty, unlefs he was cleared by a miracle; and of expecting that all the powers of nature fhould be fufpended, by an immediate interpofition of providence to fave the innocent, whenever it was prefumptuoufly required. And yet in England, fo late as king John's time, we find grants to the bifhops and clergy to ufe the judicium ferri, aquae, et ignis^k. And, both in England and Sweden, the clergy prefided at this trial, and it was only performed in the churches or in other confecrated ground: for which Stiernhook^l gives the reafon; “non defuit illis operae et laboris pretium; femper enim ab ejufmodi judicio aliquid lucri facerdotibus obveniebat.” But, to give it it's due praife, we find the canon law very early declaring againft trial by ordeal, or vulgaris, purgatio, as being the fabric of the devil, “cum fit contra praeceptum Domini, non tentabis Dominum Deum tuum^m.” Upon this authority, though the

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^g v. 270.
^h On Numb. v. 17.
ⁱ Mod. Univ. Hift. vii. 266.
^k Spelm. Gloff. 435.
^l de jure Suconum, l. 1. c. 8.
^m Decret. part. 2. cauf. 2. qu. 5. dift. 7. Decretal. lib. 3. tit. 50. c. 9. & Gloff. ibid.
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canons themfelves were of no validity in England, it was thought proper (as had been done in Denmark above a century before ⁿ) to difufe and abolifh this trial entirely in our courts of juftice, by an act of parliament in 3 Hen III. according to fir Edward Coke^o, or rather by an order of the king in council ^p.

II. ANOTHER fpecies of purgation, fomewhat fimilar to the former, but probably fprung from a prefumptuous abufe of revelation in the ages of dark fuperfttion, was the corfned, or morfel of execration: being a piece of cheefe or bread, of about an ounce in weight, which was confecrated with a form of exorcifm; defiring of the Almighty that it might caufe convulfions and palenefs, and find no paffage, if the man was really guilty; but might turn to health and nourifhment, if he was innocent ^q: as the water of jealoufy among the Jews^r was, by God's efpecial appointment, to caufe the belly to fwell and the thigh to rot, if the woman was guilty of adultery. This corfned was then given to the fufpected perfon; who at the fame time alfo received the holy facrament^s: if indeed the corfned was not, as fome have fufpected, the facramental bread itfelf; till the fubfequent invention of tranfubftantiation preferved it from profane ufes with a more profound refpect than formerly. Our hiftorians affure us, that Godwyn, earl of Kent in the reign of king Edward the confeffor, abjuring the death of the king's brother, at laft appealed to his corfned, “per buccellam deglutiendam abjuravit^t,” which ftuck in his throat and killed him. This cuftom has been long fince gradually abolifhed, though the remembrance of it ftill fubfifts in certain phrafes of abjuration retained among the common people ^u.

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ⁿ Mod. Un. Hift. xxxii. 105.
^o 9 Rep. 32.
^p 1 Rym. Foed. 228. Spelm. Gloff. 326. 2. Pryn. Rec. Append, 20. Seld. Eadm. ful. 48.
^q Spekn. Gl. 439.
^r Numb. ch. v.
^s LL. Canut. c. 6.
^t Ingulph.
^u As, “I will take the facrament upon it; may this morfel be by laft;” and the like.
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HOWEVER we cannot but remark, that though in European countries this cuftom moft probably arofe from an abufe of revealed religion, yet credulity and fuperftition will, in all ages and in all climates, produce the fame or fimilar effects. And therefore we shall not be furprized to find, that in the kingdom of Pegu there ftill fubfifts a trial by the corfned, very fimilar to that of our anceftors, only fubftituting raw rice inftead of bread ^w. And, in the kingdom of Monomopata, they have a method of deciding lawfuits equally whimfical and uncertain. The witnefs for the plaintiff chews the bark of a tree, endued with an emetic quality, which, being fufficiently mafticated, is then infufed in water, which is given the defendant to drink. If his ftomach rejects it, he is condemned: if it ftays with him, he is abfolved, unlefs the plaintiff will drink fome of the fame water; and, if it ftays with him alfo, the fuit is left undermined ^x.

THESE two antiquated methods of trial were principally in ufe among our Saxon anceftors. The next, which ftill remains in force, though very rarely in ufe, owes it's introduction among us to the princes of the Norman line. And that is

III. THE trial by battle, duel, or fingle combat: which was another fpecies of prefumptuous appeals to providence, under an expectation that heaven would unqueftionably give the victory to the innocent or injured party. The nature of this trial in cafes of civil injury, upon iffue joined in a writ of right, was fully difcuffed in the preceding book ^y: to which I have only to add, that the trial by battle may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal folemnity as that on a writ of right: but with this difference, that there each party might hire a champion, but here they muft fight in their proper perfons. And therefore if the appellant or approver be a woman, a prieft, an infant, or

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^w Mod. Univ. Hift. vii 129.
^x Ibid. xv. 464.
^y See Vol. III. pag. 337.
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of the age of fixty, or lame, or blind, he or fhe may counterplead and refufe the wager of battle; and compel the appellee to put himfelf upon the country. Alfo peers of the realm, bringing an appeal, fhall not be challenged to wage battle, on account of the dignity of their perfons; nor the citizens of London, by fpecial charter, becaufe fighting feems foreign to their education and employment. So likewife if the crime by notorious; as if the thief be taken with the mainour, or the murderer in the room with a bloody knife, the appellant may refufe the tender of battle from the appellee^z; for it is unreafonable that an innocent man fhould ftake his life againft one who is already half-convicted.

THE form and manner of waging battel upon appeals are much the fame as upon a writ of right; only the oaths of the two combatants are vaftly more ftriking and folemn^a. The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the fame by his body: the appellant takes up the glove, and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand, and in his left the right hand of his antagonift, fwears to his effect. “Hoc audi, homo, quem per manum teneo,” &c: “hear this, O man whom I hold by the hand, who calleft thyfelf John by the name of baptifm, that I, who call myfelf Thomas by the name of baptifm, did not felonioufly murder thy father, William by name, nor am any way guilty of the faid felony. So help me God, and the faints; and this I will defend againft thee by my body, as this court fhall award.” To which the appellant replies, holding the bible and his antagonift's hand in the fame manner as the other: “hear this, O man whom I hold by the hand, who calleft thyfelf Thomas by the name of baptifm, that thou art perjured; and therefore perjured, becaufe that thou art perjured; and therefore perjured, becaufe that thou felonioufly didft murder my father, William by name. So help me God and the faints; and this I will prove

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^z 2 Hawk. P. C. 427.
^a Flet. l. 1. c. 34. 2 Hawk. P. C. 426.
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“againft
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“againft thee by my body, as this court fhall award^b.” The battle is then to be fought with the fame weapons, viz. batons, the fame folemnity, and the fame oath againft amulets and forcery, that are ufed in the civil combat: and if the appellee by fo far vanquifhed, that he cannot or will not fight any longer, he fhall be adjudged to be hanged immediately; and then, as well as if he be killed in battle, providence is deemed to have determined in favour of the truth, and his blood fhall be attained. But if he kills the appellant, or can maintain the fight from funrifing till the ftars appear in the evening, he fhall be acquitted. So alfo if the appellant becomes recreant, and pronounces the horrible word of craven, he fhall lofe his liberam legem, and become infamous; and the appellee fhall recover his damages, and alfo be for ever quit, not only of the appeal, but of all indictments likewife for the fame offence.

IV. THE fourth method of trial ufed in criminal cafes is that by the peers of Great Britain, in the court of parliament, or the court of the lord high fteward, when a peer is capitally infdicted. Of this enough has been faid in a former chapter ^c; to which I fhall now only add, that, in the method and regulations of it's proceedings, it differs little from the trial per patriam, or by jury: except that the peers need not all agree in their verdict; but the greater number, confifting of twelve at the leaft, will conclude, and bind the minority ^d.

V. THE trial by jury, or the country, per patriam, is alfo that trial by the peers, of every Englifhman, which, as the grand bulwark of his liberties, is fecured to him by the great

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^b There is a ftriking refemblance between this procefs, and that of the court of Areopagus at Athens, for murder; wherein the profecutor and prifoner were both fworn in the moft folemn manner: the profecutor, that he was related to the deceafed (for none but near relations were permitted to profecute in that court) and that the prifoner was the e of his death; the prifoner, that he was innocent of the charge againft him. (Pott. Antiqu. b. 1. c. 19.)
^c See pag. 259.
^d Kelynge. 56. Stat. 7 W. II. c. 3. §. 11. Fofter. 247.
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charter^e,
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charter^e, “nullus liber homo capiatur, vel imprifonetur, aut exulet, aut aliquo alio modo deftruatur, nifi per legale judicium parium fuorum, vel per legem terrae.”

THE antiquity and excellence of this trial, for the fettling of the civil property, has before been explained at large^f. And it will hold much ftronger in criminal cafes; fince, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in fuits between the king and the fubject, than in difputes between one individual and another, to fettle the metes and boundaries of private property. Our law has therefore wifely placed this ftrong and two-fold barrier, of a prefentment and a trial by jury, between the liberties of the people, and the prerogative of the crown. It was neceffary, for preferving the admirable ballance of our conftitution, to veft the executive power of the laws in the prince: and yet this power might be dangerous and deftructive to that very conftitution, if exerted without check or control, by juftices of oyer and terminer occafionally named by the crown; who might then, as in France or Turkey, imprifon, difpatch, or exile any man that was obnoxious to the government, by an inftant declaration, that fuch is their will and pleafure. But the founders of the Englifh laws have with excellent forecaft contrived, that no man fhould be called to anfwer to the king for any capital crime, unlefs upon the preparatory accufation of twelve or more of his fellow fubjects, the grand jury: and that the truth of every accufation, whether preferred in the fhape of indictment, information, or appeal, fhould afterwards be confirmed by the unanimous fuffrage of twelve of his equals and neighbours, indifferently chofen, and fuperior to all fufpicion. So that the liberties of England cannot but fubfift, fo long as this palladium remains facred and inviolate, not only from all open attacks, (which none will be fo hardy as to make) but alfo from all fecret machinations, which may fap and undermine it; by introducing new and arbitrary methods of trial, by juftices of

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^e 9 Hen. III. c. 29.
^f See Vol. III. pag. 379.
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the peace, commiffioners of the revenue, and courts of confcience. And however convenient thefe may appear at firft, (as doubtlefs all arbitrary powers, well executed, are the moft convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of juftice, are the price that all free nations muft pay for their liberty in more fubftantial matters; that thefe inroads upon this facred bulwark of the nation are fundamentally oppofite to the fpirit of our conftitution; and that, though begun in trifles, the precedent may gradually increafe and fpread, to the utter difufe of juries in queftions of the moft momentous concern.

WHAT was faid of juries in general, and the trial thereby, in civil cafes, will greatly fhorten our prefent remarks, with regard to the trial of criminal fuits; indictments, informations, and appeals: which trial I fhall confider in the fame method that I did the former; by following the order and courfe of the proceedings themfelves, as the moft clear and perfpicuous way of treating it.

WHEN therefore a prifoner on his arraignment has pleaded not guilty, and for his trial hath put himfelf upon the country, which country the jury are, the fheriff of the county muft return a panel of jurors, liberos et legales hominess, de vicineto; that is, freeholders, without juft exception, and of the vifne or neighbourhood; which is interpreted to be of the county where the fact is committed^g. If the proceedings are before the court of king's bench, there is time allowed, between the arraignment and the trial, for a jury to be impaneled by writ of venire facias to the fheriff, as in civil caufes: and the trial in cafe of a mifdemefnor is had at nifi prius, unlefs it be of fuch confequence as to merit a trial at bar; which is always invariably had when the prifoner is tried for any capital offence. But, before commiffioners of oyer and terminer and gaol delivery, the theriff by virtue of a general precept directed to him beforehand, returns

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^g 2 Hal. P. C. 264. 2 Hawk. P. C. 403.
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to the court a panel of forty eight jurors, to try all felons that may be called upon their trial at that feffion: and therefore it is there ufual to try all felons immediately, or foon, after their arraignment. But it is not cuftomary, nor agreeable to the general courfe of proceedings, unlefs by confent of parties, to try perfons indicted of fmaller mifdemefnors at the fame court in which they have pleaded not guilty, or traverfed the indictment. But they ufually give fecurity to the court, to appear at the next affifes or feffion, and then and there to try the traverfe, giving notice to the profecutor of the fame.

IN cafes of high treafon, whereby corruption of blood may enfue, or mifprifion of fuch treafon, it is enacted by ftatute 7 W. III. c. 3. firft, that no perfon fhall be tried for any fuch treafon, except an attempt to affaffinate the king, unlefs the indictment be bound within three years after the offence committed: next, that the prifoner fhall have a copy of the indictment, but not the names of the witneffes, five days at leaft before the trial; that is, upon the true conftruction of the act, before his arraignment ^h; for then is his time to take any exceptions thereto, by way of plea or demurrer: thirdly, that he fhall alfo have a copy of the panel of jurors two days before his trial: and, laftly, that he fhall have the fame compulfive procefs to bring in is witneffes for him, as was ufual to compel their appearance againft him. And, by ftatute 7 Ann. c. 21. (which did not take place till after the deceafe of the late pretender) all perfons, indicted for high treafon or mifprifion thereof, fhall have not only a copy of the indictment, but a lift of all the witneffes to be produced, and of the jurors impaneled, with their profeffions and places of abode, delivered to him ten days before the trial, and in the prefence of two witneffes; the better to prepare him to make his challenges and defence. But this laft act, fo far as it affected indictments for the inferior fpecies of high treafon, refpecting the coin and the royal feals, is repealed by the ftatute 6 Geo. III. c. 53. elfe in had been im-

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^h Foft. 230.
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poffibel to have tried thofe offences in the fame circuit in which they are indicted: for ten clear days, between the finding and the trial of the indictment, will exceed the time ufually allotted for any feffion of oyer and terminerⁱ. And no perfon indicted for felony is, or (as the law ftands) ever can be, entitled to fuch copies, before the time of his trial ^k.

WHEN the trial is called on, the jurors are to be fworn, as they appear, to the number of twelve, unlefs they are challenged by the party.

CHALLENGES may here be made, either on the part of the king, or on that of the prifoner; and either to the whole array, or to the feparate polls, for the very fame reafons that they may be made in civil caufes ^l. For it is here at leaft as neceffary, as there, that the fheriff or returning officer be totally indifferent; that where an alien in indicted, the jury fhould be de medietate, or half foreigners; (which does not indeed hold in treafons ^m, aliens being very improper judges of the branch of allegiance to the king) that on every panel there fhould be a competent number of hundredors; and that the particular jurors fhould be omni exceptione majores; not liable to objection either propter honoris refpectum, propter defectum, propter affectum, or propter delictum.

CHALLENGES upon any of the foregoing accounts are ftiled challenges for caufe; which may be without ftint in both criminal and civil trials. But in criminal cafes, or at leaft in capital ones, there is, in favorem vitae, allowed to the prifoner an arbitrary and capricious fpecies of challenge to a certain number of jurors, without fhewing any caufe at all; which is called a peremptory challenge: a provifion full of that tendernefs and humanity to prifoners, for which our Englifh laws are juftly famous. This is grounded on two reafons. 1. As every one

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ⁱ Foft. 250.
^k 2 Hawk. P. C. 410.
^l See Vol. III. pag. 359.
^m 2 Hawk. P. C. 420. 2 Hal. P. C. 271.
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muft be fenfible, what fudden impreffions and unaccountable prejudices we are apt to conceive upon the bare looks and geftures of another; and how neceffary it is, that a prifoner (when put to defend his life) fhould have a good opinion of his jury, the want of which might totally difconcert him; the law wills not that he fhould be tried by any one man againft whom he has conceived a prejudice, even without being able to affign a reafon for fuch his diflike. 2. Becaufe, upon challenges for caufe fhewn, if the reafon affigned prove infufficient to fet afide the juror, perhaps the bare queftioning his indifference may fometimes provoke a refentment; to prevent all ill confequences from which, the prifoner is ftill at liberty, if he pleafes, peremptorily to fet him afide.

THIS privilege, of peremptory challenges, though granted to the prifoner, is denied to the king by the ftatute 33 Edw. I. ft. 4. which enacts, that the king fhall challenge no jurors without affigning a caufe certain, to be tried and approved by the court. However it is held, that the king need not affign his caufe of challenge, till all the panel is gone through, and unlefs there cannot be a full jury without the perfons fo challenged. And then, and not fooner, the king's counfel muft fhew the caufe: otherwife the juror fhall be fwornⁿ.

THE peremptory challenges of the prifoner muft however have fome reafonable boundary; otherwife he might never be tried. This reafonable boundary is fettled by the common law to be the number of thirty five; that is, one under the number of three full juries. For the law judges that five and thirty are fully fufficient to allow the moft timorous man to challenge through mere caprice; and that he who peremptorily challenges a greater number, or three full juries, has no intention to be tried at all. And therefore it dealt with one, who peremptorily challenges above thirty five, and will not retract his challenge, as with one who ftands mute or refufes his trial; by fentencing him to the

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ⁿ 2 Hawk. C. P. 413. 2 Hal. P. C. 271.
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peine forte et dure in felony, and by attainting him in treafon^o. And fo the law ftands at this day with regard to treafon, of any kind.

BUT by ftatute 22 Hen. VIII. c. 14. (which, with regard to felonies, ftands unrepealed by ftatute 1 & 2 Ph. & Mar. c. 10.) by this ftatute, I fay, no perfon, arraigned for felony, can be admitted to make any more than twenty peremptory challenges. But how if the prifoner will peremptorily challenge twenty one? what fhall be done? The ole opinion was, that judgment of peine forte et dure fhould be given, as where he challenged thirty fix at the common law^p: but the better opinion feems to be^q, that fuch challenge fhall only be difregarded and overruled. Becaufe, firft, the common law doth not inflict the judgment of penance for challenging twenty one, neither doth the ftatute inflict it; and fo heavy a judgment fhall not be impofed by implication. Secondly, the words of the ftatute are, “that he be no admitted to challenge more than twenty;” the evident conftruction of which is, that any farther challenge fhall be difallowed or prevented: and therefore, being null from the beginning, and never in fact a challenge, it can fubject the prifoner to no punifhment; but the juror fhall be regularly fworn.

IF, by reafon of challenges or the default of the jurors, a fufficient number cannot be had of the original panel, a tales may be awarded as in civil caufes^r, till the number of twelve is fworn, “well and truly to try, and true deliverance make, between our fovereign lord the king, and the prifoner whom they have in charge; and a true verdict to give, according to their evidence.”

WHEN the jury is fworn, if it be a caufe of any confequence, the indictment is ufually opened, and the evidence marfhalled, examined, and enforced by the counfel for the crown, or profe-

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^o 2 Hal. P. C. 268.
^p 2 Hawk. P. C. 414.
^q 3 Inft. 227. 2 Hal. P. C. 270.
^r See Vol. III. pag. 364.
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cution. But it is a fettled rule at common law, that no counfel fhall be allowed a prifoner upon his trial, upon the general iffue, in any capital crime, unlefs fome point of law fhall arife proper to be debated^s. A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly underftood, that the judge fhall be counfel for the prifoner; that is, fhall fee that the proceedings againft him are legal and ftrictly regular^t) feems to be not at all of a piece with the reft of the humane treatment of prifoners by the Englifh law. For upon what face of reafon can that affiftance be denied to fave the life of a man, which yet is allowed him in profecutions for every petty trefpafs? Nor indeed is it ftrictly fpeaking a part of out antient law: for the mirrour^u, having obferved the neceffity of counfel in civil fuits, “who know how to forward and defend “the caufe, by the rules of law and cuftoms of the realm,” immediately afterwards fubjoins; “and more neceffary are they for defence upon indictments and appeals of felony, than upon other venial caufes ^w.” And, to fay the truth, the judges themfelves are fo fenfible of this defect in our modern practice, that they feldom fcruple to allow a prifoner counfel to ftand by

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^s 2 Hawk. P. C. 400.
^t Sir Edward Coke (3 Inft. 137.) gives another additional reafon for this refufal, “becaufe the evidence to convict a prifoner fhould be fo manifeft, as it could not be contradicted.” It was therefore thought too dangerous an experiment, to let an advocate try, whether it could be contradicted or no.
^u c. 3. §. 1.
^w Father Parfons the jefuit, and after him bifhop Ellys, (of Englifh liberty, ii. 26.) have imagined, that the benefit of counfel to plead for them was firft denied to prifoners by a law of Henry I, meaning (I prefume) chapters 47 and 48 of the code which is ufually attributed to that prince. “De caufis criminalibus vel capitalibus nemo quaetat confilium; quin implacitatus ftatim perntget, fine omni petitione confilii. –– In “aliis omnibus poteft et debet uti confilio.” But this confilium, I conceive, fignifies only an imparlance, and the petitio confilii is craving leave to impart; (See Vol. III. pag. 298.) which is not allowable in any criminal profecution. This will be manifeft by comparing this law with a co-temporary paffage in the grand couftumier of Normandy, (ch. 85.) which fpeaks of imparlances in perfonal actions. “Apres ce, eft tenu le querelle a refpondre; et aura congie dc foy confeiller, s'il le demande: et, quand il fera confeille, it peut nyer le faict dont il eft accufe.” Or, as it ftands in the Latin text, (edit. 1539.) “Querelatus autem poftea tenetur refpondere; et habebit licentiam confulendi, fi requirat: habito autem confilio, debet factum negare quo accufatus eft.”
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him
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him at the bar, and inftruct him what queftions to afk, or even to afk quedtions for him, with refpect to matters of fact: for as to matters of law, arifing on the trial, they are intitled to the affiftance of counfel. But ftill this is a matter of too much importance to be left to the good pleafure of any judge, and is worthy the interpofition of the legiflature; which has fhewn it's inclination to indulge prifoners with this reafonable affiftance, by enacting in ftatute 7 W. III. c. 3. that perfons indicted for fuch high treafon, as works a corruption of the blood, or mifprifion thereof, may make their full defence by counfel, no exceeding two, to be named by the prifoner and affigned by the court or judge: and this indulgence, by ftatute 20 Geo. II. c. 30. is extended to parliamentary impeachments for high treafon, which were excepted in the former act.

THE doctrine of evidence upon pleas of the crown is, in moft refpects, the fame as that upon civil actions. There are however a few leading points, wherein, by feveral ftatutes and refolutions, a difference is made between civil and criminal evidence.

FIRST, in all cafes of high treafon, petit treafon, and mifprifion of treafon, by ftatutes 1 Edw. VI. c. 11. and 1 & 2 Ph. & Mar. c. 10. two lawful witneffes are required to convict a prifoner; except in cafes of coining ^x, and counterfeiting the feals; or unlefs the party fhall willingly and without violence confefs the fame. By ftatute 7 W. III. c. 3. in profecutions for thofe treafons to which that act extends, the fame rule is again enforced, with this addition, that the confeffion of the prifoner, which fhall countervail the neceffity of fuch proof, muft be in open court; and it is declared that both witneffes muft be to the fame overt act of treafon, or one to one over act, and the other to another overt act of the fame fpecies of treafon^y, and not of diftinct heads or kings: and no evidence fhall be admitted to prove any overt act not expreffly laid in the

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^x 1 Hal. P. C. 297.
^y See St. Tr. II. 144. Fofter. 235.
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indictment. And therefore in fir John Fenwick's cafe, in king William's time, where there was but one witnefs, an act of parliament ^z was made on purpofe to attaint him of treafon, and he was executed ^a. But in almoft every other accufation one pofitive witnefs is fuffient. Baron Montefquieu lays it down for a rule ^b, that thofe laws which condemn a man to death in any cafe on the depofition of a fingle witnefs, are fatal to liberty: and he adds this reafon, that the witnefs who affirms, and the accufed who denies, makes an equal ballance; there is a neceffity therefore to call in a third man to incline the fcale. But this feems to be carrying matters too far: for there are fome crimes, in which the very privacy of their nature excludes the poffibility of having more than one witnefs: muft thefe therefore efcape unpunifhed? Neither indeed is the bare denial of the perfon accufed equivalent to the pofitive oath of a difinterefted witnefs. In cafes of indictments for perjury, this doctrine is better founded; and there our law adopts it: for one witnefs is not allowed to convict a man indicted for perjury; becaufe then there is only one oath againft another ^d. In cafes of treafon alfo there is the accufed's oath of allegiance, to counterpoife the information of a fingle witnefs; and that may perhaps be one reafon why the law requires a double teftimony to convict him: though the principal reafon, undoubtedly, is to fecure the fubject from being facrificed to fictitious confpiracies, which have been the engines of profligate and crafty politicians in all ages.

SECONDLY, though from the reverfal of colonel Sidney's attainder by act of parliament in 1689^e it may be collected ^f, that the mere fimilitude of hand-writing in two papers fhewn to a jury, without other concurrent teftimony, is no evidence that both were written by the fame perfon; yet undoubtedly the teftimony of witneffes, well acquinted with the party's

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^z Stat. 8 W. III. c. 4
^a St. Tr. V. 40.
^b Sp. L. b. 12. c. 3.
^c Beccar. c. 13.
^d 10 Mod. 194.
^e St. Tr. VIII. 472.
^f 2 Hawk. P. C. 431.
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hand, that they believe the paper in queftion to have been written by him, is evidence to be left to a jury ^g.

THIRDLY, by the ftatute 21 Jac. I. c. 27. a mother of a baftard child, concealing it's death, muft prove by one witnefs that the child was born dead; otherwife fuch concealment fhall be evidence of her having murdered it ^h.

FOURTHLY,         all prefumptive evidence of felony fhould be admitted cautioufly: for the law holds, that it is better that ten guilty perfons efcape, than that one innocent fuffer. And fir Matthew Hale in particular ^j lays down two rules, moft prudent and neceffary to be obferved: 1. Never to convict a man for ftealing the goods of a perfon unknown, merely becaufe he will give no account how he came by them, unlefs an actual felony be proved of fuch goods: and, 2. Never to convict any perfon of murder or manflaughter, till at leaft the body be found dead; on account of two inftances he mentions, where perfons were executed for the murder of others, who were then alive, but miffing.

LASTLY, it was an antient and commonly received practice ⁱ, (derived from the civil law, and which alfo to this day obtains in the kingdom of France ^k) that, as counfel was not allowed to any prifoner accufed of a capital crime, fo neither fhould he be fuffered to exculpate himfelf by the teftimony of any witneffes. And therefore it deferves to be remembered, to the honour of Mary I, (whofe early fentiments, till her marriage with Philip of Spain, feem to have been humane and generous ^l) that when fhe appointed fir Richard Morgan chief juftice of the common-pleas, fhe injoined him, “that notwithftanding the old error,

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^g Lord Prefton's cafe. A. D. 1690. St. Tr. IV. 453. Francia's cafe. A. D. 1716. St. Tr. VI. 69. Layer's cafe. A. D. 1722. ibid. 279. Henzey's cafe. A. D. 1758. 4 Burr. 644.
^h See pag. 198.
^j 2 Hal. P. C. 290.
ⁱ St. Tr. I. paffim.
^k Domat. publ. law. b. 3. t. 1. Montefq. Sp. L. b. 29. c. 11.
^l See pag. 17.
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“which did not admit any witnefs to fpeak, or any other matter to be heard, in favour of the adverfary, her majefty being party; her highnefs' pleafure was, that whatfoever could be brought in favour of the fubject fhould be admitted to be heard: and moreover, that the juftices fhould not perfuade themfelves to fit in judgment otherwife for her highnefs than for her fubject ^m. Afterwards, in one particular inftance (when embezzling the queen's military ftores was made felony by ftatute 31 Eliz. c. 4.) it was provided that any perfon, impeached for fuch felony, “fhould be received and admitted to make any lawful proof that he could, by lawful witnefs or otherwife, for his difcharge and defence:” and in general the courts grew fo heartily afhamed of a doctrine fo unreafonable and oppreffive, that a practice was gradually introduced of examining witneffes for the prifoner, but not upon oath ⁿ: the confequence of which ftill was, that the jury gave lefs credit to the prifoner's evidence, than to that produced by the crown. Sir Edward Coke ^o protefts very ftrongly againft this tyrannical practice: declaring that he never read in any act of parliament, book-cafe, or record, that in criminal cafes the party accufed fhould not have witneffes fworn for him; and therefore there was not fo much as fcintilla juris againft it ^p. And the houfe of commons were fo fenfible of this abfurdity, that, in the bill for abolifhing hoftilities between England and Scotland ^q, when felonies committed by Englifhmen in Scotland were ordered to be tried in one of the three northern countries, they infifted on a claufe, and carried it ^r againft the efforts of both the crown and the houfe of lords, againft the practice of the courts in England, and the exprefs law of Scotland ^s, “that in all fuch trials, for the better difcovery of the truth, and the better information of the confciences of the jury and juftices, there fhall be allowed to the

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^m Holingfh. 1112. St. Tr. I. 72.
ⁿ 2 Bulftr. 147. Cro. Car. 292.
^o 3 Inft. 79.
^p See alfo 2 Hal. P. C. 283. and his fummary. 264.
^q Stat. 4. Jac. I. c. 1.
^r Com. Journ. 4, 5, 12, 13, 15, 29, 30 Jun. 1607.
^s Ibid. 4 Jun. 1607.
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“party

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“party arraigned the benefit of fuch credible witneffes, to be examined upon oath, as can be produced for his clearing and juftification.” At length by the ftatute 7 W. III. c. 3. the fame meafure of juftice was eftablifhed throughout all the realm, in cafes of treafon within the act: and it was afterwards declared by ftatute 1 Annn. ft. 2. c. 9. tht in all cafes of treafon and felony, all witneffes for the prifoner fhould be examined upon oath, in like manner as the witneffes againft him.

WHEN the evidence on both fides in clofed, the jury cannot be difcharged till they have given in their verdict; but are to confider of it, and deliver it in, with the fame forms, as upon civil caufes: only they cannot, in a criminal café, give a privy yerdict^t. But an open verdict may be either general, guilty, or not guilty; or fpecial, fetting forth all the circumftances of the café, and praying the judgment of the court, whether, for inftance, on the facts ftated, it be murder, manflaughter or no crime at all. This is where they doubt the matter of law, and therefore chufe to leave it to the determination fo the court; though they have an unqueftionable right of determining upon all the circumftances, and finding a general verdict, if they think proper fo to bazard a breach of their oaths: and, if their verdict be notorioufly wrong, they may be punifhed and the verfict fet afide by attaint at the fuit of the king; but not at the fuit of the prifoner ^u. But the practice, heretofore in ufe, of fining, inprifoning, or otherwife punifhing jurors, merely at the difcretion of the court, for finding their verdict contrary to the direction of the judge, was arbitrary, unconftitutional and illegal: and is treated as fuch by fir Thomas Smith, two hundred years ago; who accounted “fuch doings to be very violent, tyrannical, and contrary to the “liberty and cuftom of the realm of England ^w.” For, as fir Matthew Hale well obferves ^x, it would be a moft unhappy café for the judge himfelf, if the prifoner's fate depended upon his directions: --- unhappy alfo for the prifoner; for, if the judge's

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^t 2 Hal. P. C. 300. 2 Hawk. P. C. 439.
^u 2 Hal. P. C. 310.
^w Smith's commonw. l. 3. c. 1.
^x 2 Hal. P. C. 313.
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opinion muft rule the verdict, the trial by jury would be ufelefs. Yet in many inftances ^y, where contrary to evidence the jury have found the prifoner guilty, their verdict hath been mercifully fet afide, and a new trial granted by the court of king's bench; for in fuch cafe, as hath been faid, it cannot be fet right by attaint. But there hath yet been no inftance of granting a new trial, where the prifoner was acquitted upon the firft ^z.

IF the jury therefore find the prifoner not guilty, he is then for ever quit and difcharged of the accufation ^a; except he be appealed of felony within the time limited by law. But if the jury find him guilty ^b, he is then faid to be convicted of the crime whereof he ftands indicted. Which conviction may accrue two ways; either by his confeffing the offence and pleading guilty; or by his being found fo by the verdict of his country.

WHEN the offender is thus convicted, there are two collateral circumftances that immediately arife. 1. On a conviction, in general, for any felony, the reafonable expenfes of profecution are by ftatute 25 Geo. II. c. 36. to be allowed to the profecutor out of the county ftock, if he petitions the judge for that purpofe; and by ftatute 27 Geo. II. c. 3. poor perfons, bound over to give evidence, are likewife entitled to be paid their charges, as well without conviction as with it. 2. On a conviction of larceny in particular, the profecutor fhall have reftitution of his goods, by virtue of the ftatute 21 Hen. VIII. c. 11. For by the common law there was no reftitution of goods upon an indictment, becaufe it is at the fuit of the king only; and therefore the party was enforced to bring an appeal of rob-

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^y 1 Lev. 9. T. Jones. 163. St. Tr. X. 416.
^z 2 Hawk. P. C. 442.
^a The civil law in fuch cafe only difcharges him from the fame accufer, but not from from the fame accufation. (Ff. 48. 2. 7. .{FE} 2.)
^b In the Roman republic, when the prifoner was convicted of any capital offence by his judges, the form of pronouncing that conviction was fomething peculiarly delicate: not that he was guilty, but that he had not been enough upon his guard; “parum caviffe videtur.” (Feftus. 325.)
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bery,

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bery, in order to have his goods again ^c. But, it being confidered that the party, profecuting the offender by indictment, deferves to the full as much encouragement as he who profecutes by appeal, this ftatute was made, which enacts, that if any perfon be convicted of larceny by the evidence of the party robbed, he fhall have full reftitution of his money, goods, and chattels; or the value of them our of the offender's goods, if has any,by a writ to be granted by the juftice. And this writ of reftitution fhall reach the goods fo ftolen, notwithftanding the property ^d of them is endeavoured to be altered by fale in market overt ^e. And, though this may feem fomewhat hard upon buyer, yet the rule of law is that “fpoliatus debet, ante omnia, reftitui;” efpecially when he has ufed all the diligence in his power to convict the felon. And, fince the cafe is reduced to this hard neceffity, that either the owner or the buyer muft fuffer; the law prefers the right of the owner, who has done a meritorious act by purfuing a felon to condign punifhment, to the right of the buyer, whofe merit is only negative, that he has been guilty of no unfair tranfaction. Or elfe, fecondly, without fuch writ of reftitution, the party may peaceably retake his goods, wherever he happens to find them ^f, unlefs a new property be fairly acquired therein. Or, laftly, if the felon be convicted and pardoned, or be allowed his clergy, the party robbed may bring his action of trover againft him for his goods; and recover a fatisfaction in damages. But fuch action lies not, before profecution; for fo felonies would be made up and healed ^g: and alfo recaption is unlawful, if it be done with intention to fmother or compound the larceny; it then becoming the heinous offence of theft-bote, as was mentioned in a former chapter ^h.

IT is not uncommon, when a perfon is convicted of a mifdemefnor, which principally and more immediately affects fome individual, as a battery, imprifonment, or the like, for the court

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^c 3 Inft. 242.
^d See Vol. II. pag. 450.
^e 1 Hal. P. C. 543.
^f See Vol. III. pag. 4.
^g 1 Hal. P. C. 546.
^h See pag. 133.
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to permit the defendant to fpeak with the profecutor, before any judgment is pronounced; and, if the profecutor declares himfelf fatisfied, to inflict but a trivial punifhment. This is done, to reimburfe the profecutor his expenfes, and make him fome private amends, without the trouble and circuity of a civil action. But it furely is a dangerous practice: and, though it may be intrufted to the prudence and difcretion of the judges in the fuperior courts of record, it ought never to be allowed in local or inferior jurifdictions, fuch as the quarter-feffions; where profecutions for affaults are by this means too frequently commenced, rather for private lucre than for the great ends of public juftice. Above all, it fhould never be fuffered, where the teftimony of the profecutor himfelf is neceffary to convict the defendant: for by this means, the rules of evidence are intirely fubverted; the profecutor becomes in effect a plaintiff, and yet is fuffered to bear witnefs for himfelf. Nay even a voluntary forgivenefs, by the party injured, ought not in true policy to intercept the ftroke of juftice. “This,” fays an elegant writer ⁱ, (who pleads with equal ftrength for the certainty as for the lenity of punifhment) “may be an act of good-nature and humanity, but it is contrary to the good of the public. For, although a private citizen may difpenfe with fatisfaction for his private injury, he cannot remove the neceffity of public example. The right of punifhing belongs not to any one individual in particular, but to the fociety in general, or the fovereign who reprefents that fociety: and a man may renounce his own portion of this right, but he cannot give up that of others.”

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ⁱ Becc. ch. 46.
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