Front Page Titles (by Subject) CHAPTER X.: Of the Different Steps Prescribed by the Law, for Apprehending, Detaining, Trying, and Punishing Offenders. - Collected Works of James Wilson, vol. 2
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CHAPTER X.: Of the Different Steps Prescribed by the Law, for Apprehending, Detaining, Trying, and Punishing Offenders. - James Wilson, Collected Works of James Wilson, vol. 2 
Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2.
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Of the Different Steps Prescribed by the Law, for Apprehending, Detaining, Trying, and Punishing Offenders.
I now proceed to the different steps which the law prescribes for apprehending, detaining, trying, and punishing criminals.
A warrant is the first step usually taken for their apprehension.
A warrant is a precept from a judicial to a ministerial officer of justice, commanding him to bring the person mentioned in it, before him who issues it, or before some other officer having judicial authority in the cause.a This warrant should be under the hand and seal of the magistrate issuing it: it should mention the time and place of making it, and the cause for which it is granted. It may be either to bring the party generally before any magistrate, or specially to bring him before the magistrate only who grants it. It may be directed to the sheriff, constable, or to a private person; for the warrant constitutes him, for this purpose, an authorized officer.b
By the constitution of Pennsylvania,c no warrant to seize persons shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. Such warrant may be granted, even by any justice of the peace, for treason, felony, or any other offence against the peace.d
When the warrant is received by the person to whom it is directed, he is authorized, and, if a publick officer, obliged to execute it, so far as the jurisdiction of the magistrate and himself extends.e A sheriff may depute others; but every other person is obliged himself to execute it; though others may lawfully assist him. A warrant directed to all constables generally can be executed by each only in his own precinct: but a warrant directed to a particular constable by name, may be executed by him any where within the jurisdiction of the magistrate.f
The execution of the warrant is commenced by an arrest; which is the apprehending or restraining of the person, whom it mentions or describes.g But, besides those arrests which are made in the execution of warrants, there are others enjoined or justified by the law.
All, of age, who are present when a felony is committed, or when a dangerous wound is given, are, on pain of fine and imprisonment, bound to apprehend the person who has done the mischief.h If the crime has been committed out of their view, they are, upon a hue and cry, obliged to pursue with the utmost diligence, and endeavour to apprehend him who has committed it. Hue and cry is the pursuit of an offender from place to place, till he is taken: all who are present when he commits the crime, are bound to raise it against him on his flying for it. Every one is obliged to assist an officer demanding his assistance, in order to apprehend a felon, to suppress an affray, or to secure the persons of affrayers.i In all these cases, the doors of houses may, if necessary, be broken open for the apprehension of the offenders, if admittance is refused on signifying the cause of demanding it.j
It is a general rule, that, at any time, and in any place, every private person is justified in arresting a traitor or a felon; and, if a treason or a felony has been committed, he is justified in arresting even an innocent person, upon his reasonable suspicion that by such person it has been committed.k If one see another upon the point of committing a treason or a felony, or doing any act which would manifestly endanger the life of another; he may lay hold on him, and detain him till it may be presumed reasonably that he has altered his design.l In the case of a mere breach of the peace, no private person can arrest one for it after it is over.m
Whenever an arrest may be justified by a private person, it may a fortiori be justified by an officer of justice.n In addition to their own personal exertions, they have a right to demand the assistance of others.o A constable may not only arrest affrayers, but may also detain them till they find security for the peace.p A justice of the peace may, by parol, authorize any one to arrest another, who, in his presence, is guilty of an actual breach of the peace, or, in his absence, is engaged in a riot.q
Whenever a person is arrested for a crime, he ought to be brought before a justice of the peace, or other judicial magistrate. This magistrate is obliged immediately to examine into the circumstances of the crime alleged; and according to the result of this examination, the person accused should be either discharged, or bailed, or committed to prison.
If it clearly appear that no crime was committed, or, if committed, that the suspicion conceived against the prisoner is entirely unfounded; he should be restored to his liberty.r
To bail a person is to deliver him to his sureties, who give sufficient security for his appearance: he is intrusted to their friendly custody, instead of being committed to the confinement of the gaol. At the common law, every man accused or even indicted of treason or of any felony whatever, might be bailed upon good surety: for at the common law, says my Lord Coke,s the gaol was his pledge, who could find no other: he could be bailed, till he was convicted.
This part of the common law, however, is, in England, greatly altered by parliamentary provisions, which restrict, in numerous instances, the power of admitting to bail. Indeed it is obvious, that between the law of capital punishments and that of commitments, the connexion must be intimate and inseparable. In capital offences, no bail can be a security equal to the actual custody of the person: for what is there, which a man may not be induced to forfeit to save his life?t One court in England, and only one—the court of king’s bench, or, in the time of the vacation, any judge of that court—still possesses the discretionary power of bailing in any case, according to its circumstances; excepting only such persons as are committed by either house of parliament, while the session lasts, and such as are committed for contempts by any of the superiour courts of justice.u
To refuse or to delay bail, where it ought to be granted, is a misdemeanor at the common law,v and may be punished on an indictment. By the constitution of Pennsylvania,w it is declared, as an inviolable rule, “that excessive bail shall not be required;” and “that all prisoners shall be bailable by sufficient sureties; unless for capital offences, when the proof is evident or presumption great.”
If the crime is not bailable, or if the prisoner cannot find sureties, the magistrate is under the disagreeable necessity of ordering, by a warrant under his hand and seal and containing the cause of the order, that he shall be imprisoned in the publick gaol, till he be thence delivered by the due course of law.x This is a commitment.
This imprisonment, it ought to be remembered, is for the purpose only of keeping, not for that of punishing the prisoner: he ought, for this reason, to be treated with every degree of tenderness, of which his safe custody will possibly admit. In particular, a gaoler is not justified, by the law, in fettering a prisoner, unless where he is unruly, or where it is absolutely necessary to prevent an escape.y “Solent praesides in carcere continendos damnare ut in vinculis contineantur; sed hujusmodi interdicta sunt a lege, quia carcer ad continendos, et non puniendos, haberi debeat.”z “Custodes vero gaolarum paenam sibi commissis non augeant, nec eos torqueant; sed, omni saevitia remota, pietateque adhibita, judicia in ipsos promulgata debite exequantur.”a1 Such is the law of imprisonment, ancient and approved.
When the party is taken, and bailed or imprisoned; the next step in order is, to institute a prosecution against him. This may be done by four different methods—by appeal; by information; by presentment; by indictment.
1. An appeal is an accusation by one private person against another for some crime: it is a private action of the party injured, demanding punishment for the injury which he has suffered: it is also a prosecution for the state, on account of the crime committed against the publick.b
In ancient times there were appeals for a breach of the peace, for a battery, and for false imprisonment, as well as for more aggravated injuries and crimes; but they have been out of use, and converted into actions of trespass, for many hundred years.c
An appeal lies for mayhem, for larceny, for arson, for rape, for death. It is brought by the party ravished, robbed, maimed, or whose house was burned; or by the wife, or, if no wife, by the heir, of the person killed.d An appeal may be brought previous to an indictment; and if the defendant be acquitted, he cannot afterwards be indicted for the same crime: if he is found guilty, he shall suffer the same punishment as if he had been convicted on a prosecution by an indictment.e An appeal may be discharged by the concurrence of all the parties interested—by the pardon of the crown, and by the release of the appellant.f
On this subject there is, in our law books, an immense profusion of professional learning. As the appeal is now but little used, I decline any minute inquiry concerning it: as it is still in force, it would have been improper wholly to have omitted it.
2. A second mode of prosecuting crimes and offences is by information. Some informations are brought partly at the suit of the state, and partly at the suit of a citizen. These are a species of qui tamh actions; and will be considered when we treat concerning civil suits.
Informations in the name of the state or of the crown alone are of two kinds: those which are filed ex officio by the publick prosecutor, and are properly at the suit of the publick; and those which are carried on in the name, indeed, of the commonwealth or crown, but, in fact, at the instance of some private person or common informer. The first have been the source of much; the second have been the source of intolerable vexation: both were the ready tools, by using which Empson and Dudley,3 and an arbitrary star chamber, fashioned the proceedings of the law into a thousand tyrannical forms. Neither, indeed, extended to capital crimes: but ingenious tyranny can torture in a thousand shapes, without depriving the person tortured of his life.
Restraints have, in England, been imposed upon the last species: but the first—those at the king’s own suit, filed by his attorney general—are still unrestrained.i By the constitution of Pennsylvania, both kinds are effectually removed. By that constitution, however, informations are still suffered to live: but they are bound and gagged. They are confined to official misdemeanors; and even against those, they cannot be slipt but by leave of the court. By that constitution, “no person shall, for any indictable offence, be proceeded against criminally by information”—“unless by leave of the court, for oppression and misdemeanor in office.” Military cases are also excepted.j
3. Presentment is a third species of prosecution. A presentment, in its most extensive signification, comprehends inquisitions of office, of which the coroner’s inquest is one: it comprehends likewise regular indictments, which are preferred and found. But, in its proper sense, it is an accusation found by a grand jury, of their own motion, and from their own knowledge and observation, without any bill being laid before them by the prosecutor for the publick. This presentment is afterwards reduced into proper form by the publick prosecutor; and in this form is sent to the grand jury, in the same manner as bills which are originally preferred to them by that officer. These bills and this presentment, found in form; are indictments.
When the grand jury, after having heard the evidence adduced to support a bill, think it insufficient for this purpose, they endorse on the bill “ignoramus,” and direct the foreman to sign this endorsement. By this endorsement it is meant, that though the matters charged in the bill may be true, their truth is not sufficiently evinced to the jury. If the charge in the bill appears to be supported, it is then endorsed “a true bill,” and as such is signed by the foreman.
A grand jury must consist of at least twelve members, because twelve are necessary—it must not consist of more than twenty three members, because twelve are sufficient, to find an indictment; and twelve would not be a majority of a greater number.
At the common law, a grand jury cannot find an indictment for any crime, but such as has been committed within the county or precinct, for which they are returned.k
A bill cannot be returned true in part, and false in part; it must be returned “a true bill” or “ignoramus” for the whole. Nor can it be returned specially or conditionally.l
Much might be said concerning the form of indictments generally, and also concerning the particular form of the indictment for each particular species of crimes: but this kind of learning, which, by the by, ought neither to be overlooked nor disregarded by the professional lawyer, is found in full and minute detail in the numerous books and treatises of the criminal law. To these I beg leave to refer you. To go fully into particulars would employ too great a proportion of my lectures: to go imperfectly would convey no information that could be deemed regular or satisfactory.
Suffice it to observe, as a general and important principle with regard to indictments, that as to persons, times, and places, and, above all, as to the descriptions of crimes, the most precise certainty which can be reasonably expected is indispensably required. Certainty, indeed, is a governing and a pervading quality in all good legislation, and in all good administration of law. In this very important quality, the common law, pure and unadulterated, has attained a very uncommon degree of perfection. I add, that the common law is equally remarkable for the simplicity as for the accuracy of its forms. I repeat it—they deserve the close study and attention of every lawyer by profession. Even to others, who have leisure and a taste to inspect minute as well as splendid beauties, the forms of the common law will afford entertainment and instruction.
The principles of the great institution of grand juries have been explained fully in another place.
When a person is indicted, and is not already committed or under bail, the next step in the legal arrangement is, to issue process against him, in order that he may be obliged to answer the charge, of which he stands indicted.
On an indictment for any crime under the degree of treason or felony, the process proper to be first awarded, at the common law, is a venire facias,4 which, from the very name of it, is only in the nature of a summons to require the appearance of the party.m If this process is not obeyed, and it is seen by the return that he has lands in the county by which he may be distrained; then a distress shall be awarded against him, from time to time, till he appear. But if the return shows that he has no lands in the county; then a writ of capias is awarded against him. By this writ, as is intimated from its name, the sheriff is commanded to take the body of the person accused, and have him before the court at the time and place specified in the writ itself. If he cannot be taken: on the first capias, a second, and so on, shall be issued:n On an indictment for felony or treason, a capias is always the first process.o
We are told that, in the case of misdemeanors in England, it is now the usual practice for any judge of the court of king’s bench, upon certificate of an indictment found, to award a writ of capias immediately against the defendant.p
If the party abscond, and cannot be taken; then, after the several writs have been issued against him in regular number according to the nature of the crime with which he is charged, he is, at five county courts, proclaimed and required to surrender himself; and if he does not appear at the fifth requisition, he is then adjudged to be outlawed—put out of the protection of the law.q
When one is outlawed on an indictment for a misdemeanor, he forfeits his goods and chattels. In felony or treason, outlawry is a conviction and an attainder of the crime charged in the indictment.r Any one may arrest an outlaw for those crimes, in order to bring him to execution. He was formerly said “gerere caput lupinum,” and might be knocked on the head like a wolf, by everyone who met him. But the law is now very justly holden to be otherwise. As to the security of his person, the greatest and the most notorious criminal is still under the protection, though liable to the punishment, of the law. It is lawful, as has been said, to apprehend him, in order to bring him to legal punishment. But to kill him wantonly, wilfully, or deliberately, merely because he is an outlaw, is murder.s
The proceedings necessary to an outlawry are uncommonly circumstantial, and must be exact to the minutest degree. Indeed, it is proper that they should be so. The consequence is, that an outlawry may, in most instances, be reversed on a writ of errour. When this is done, the person indicted is admitted to his defence against the indictment.
When a person indicted comes or is brought before the proper court, he is arraigned; in other words, he is called upon by his name, the indictment is read to him, and he is asked what he has to say in answer to the indictment.
At this important crisis of his fate, when his life may depend upon a word, and when, for this reason, every word should, as far as possible, be the result of perfect recollection and freedom, he must not be loaded with fetters or chains; he must not be brought to the bar in a contumelious manner; he ought to be used with all the humanity and gentleness consistent with the situation, in which he unfortunately stands; and he should suffer no uneasiness, except that which proceeds from internal causes.t The judge should exhort him to answer without fear; and should give him assurance that justice shall be duly administered.u “Cum captus coram justiciariis producendus fuerit, produci non debet ligatis manibus (quamvis aliquando compedibus propter periculum evasionis) et hoc ideo, ne videatur coactus ad aliquam purgationem suscipiendam”.v5
Is it necessary to fortify, by authority, the law of humanity? Sometimes it is. Sometimes the law of humanity, even when fortified by authority, has been pleaded in vain. The cruel violation, as well as the benign observance, of the principles of goodness and law ought to be known and marked. The last should be approved and imitated: the first should be detested and avoided. In the present enlightened century—and humanity should surely attend knowledge—a chief justice of the court of king’s bench suffered a person in irons to be arraigned for treason, before him, though he was informed, that they were so grievous as to prevent the prisoner’s sleeping except in a single posture, and that even while he was before the court, he would be unable to stand, unless the gaoler—for the gaoler had more bowels than the judge—unless the gaoler assisted him to hold up his chains.w
It is usual to desire the prisoner to hold up his hand when he is arraigned. This formality is not improper, because it serves to identify the person: it is not necessary, because the person may be identified in another manner. My Lord Bacon mentions a Welshman, who put a curious construction on this ceremony. Having been at a court, where he saw the prisoners hold up their hands at the bar as they severally received their sentences, he told one of his acquaintances that the judge was an excellent fortune teller; for if he only looked upon the hand of a person, he could immediately declare what would be his fate.x
A person, upon being arraigned, must stand mute, or give an answer.
One is considered as standing mute, when he gives no answer at all; when he gives such an answer as cannot be received; and when he pleads not guilty, but, on being asked how he will be tried, either refuses to say any thing, or will not put himself upon the country.y
On standing mute, the judgment was indeed a terrible one—“that he be sent to the prison from whence he came, and put into a dark lower room, and there be laid naked upon the bare ground, upon his back, without any clothes or rushes under him, or to cover him, his legs and arms drawn and extended with cords to the four corners of the room, and upon his body laid as great a weight of iron as he can bear, and more. The first day he shall have three morsels of barley bread without drink; the next day he shall have three draughts of standing water next the door of the prison, without bread; and this to be his diet till he die.”z To the execution even of this terrible judgment some have submitted, that from forfeiture their estates might be rescued for the benefit of their children; for by standing mute, forfeiture and the corruption of blood are prevented.
The origin of the peine fort et dure6 it is exceedingly difficult to trace: it seems, however, to be no legitimate offspring of the ancient common law: by that law, the standing mute amounted to a confession of the charge.a
By the law of Scotland, if the pannel stands mute and will not plead, the trial shall proceed as usual; and it is left to him to manage his own defence, as he shall think proper.b The spirit of this law is adopted by the legislature of the United States.c “If a person indicted shall stand mute, the court shall proceed to his trial, as if he had pleaded not guilty, and shall render judgment accordingly.”d
To an indictment, the prisoner may give an answer, or plead, as the law terms it, in a great variety of ways.
I. He may admit the facts, as stated in the indictment, to be true; but, at the same time, may deny that the facts, thus stated and admitted, amount in law to the crime charged in the indictment. This is a demurrer. Thus, if one is indicted for larceny committed by stealing apples growing on a tree, he may demur to this indictment; in other words, he may admit that he took the apples from the tree, but deny that the fact of taking them amounts in law to the crime of larceny; because apples, unsevered from the tree, are not personal goods; and because of personal goods only larceny can be committed. This demurrer brings regularly before the court the legal question, whether the facts stated constitute the crime charged in the indictment. When the prosecutor joins in this demurrer—when he avers that the facts stated constitute the crime charged; then an issue is said to be joined. An issue is the result of the pleadings in a single point, denied on one side and affirmed on the other. It is either an issue in law, such as has now been mentioned; or it is an issue in fact, such as will be mentioned hereafter.
It seems to be taken for granted, by many respectable writers on the criminal law, that if, on a demurrer to an indictment, the point of law is determined against the prisoner, he shall have the same judgment pronounced against him as if he had been convicted by a verdict. With regard to crimes not capital this seems to be the case: but with regard to capital crimes, no adjudication is produced in support of the opinion. My Lord Hale indeed says, in one place of his valuable history of the pleas of the crown, that if a person be indicted of felony, and demur to the indictment, and it be judged against him, he shall have judgment to be hanged; for it is a confession, and, indeed, a wilful confession of the indictment.e In another place, however, he takes a distinction between this kind of confession, which, though voluntary, is still extrajudicial, and that full and solemn confession, which will by and by be mentioned. An extrajudicial confession, says he, though it be in court, as where the prisoner freely discloses the fact, and demands the opinion of the court whether it be felony, will not be recorded by the court, even if, upon the fact thus disclosed, it appear to be felony; but he will still be admitted to plead not guilty to the indictment.f There seems to be a solid reason for this distinction: for though a demurrer admits the truth of the facts as stated in the indictment, yet it cannot be considered as an explicit and solemn confession of what is more material—the criminal and felonious intention, with which the facts were done. This criminal and felonious intention is the very point or gist, as the law calls it, of the indictment; and should be answered explicitly and directly.
II. This answer may be given by a solemn and judicial confession, not only of the fact, but of the crime—in the language of the law, it may be done by pleading guilty.
Upon this subject of confession on the part of the criminal, three very interesting questions arise with respect to capital crimes: for of those only I now speak. 1. Is a confession necessary? 2. Ought it to be made? 3. Ought it to be received as a sufficient foundation for a conviction, and judgment against life?
1. In many countries, his confession is considered as absolutely indispensable to the condemnation of the criminal. The Marquis of Beccaria conjectures that this rule has been taken from the mysterious tribunal of penitence, in which the confession of sins is a necessary part of the sacrament: thus, says he, have men abused the unerring light of revelation.g This confession they endeavour to obtain by the oath, and by the torture, of the person accused. He is obliged to answer interrogatories. These interrogatories—we are told; for of experience on this subject we are happily ignorant—these interrogatories are reduced to a system, captious, uncandid, and ensnaring; and terrour is frequently added to fraud.h The practice of demanding the oath of the accused is said, by the famous President de Lamoignon,7 to have derived its origin from the customs of the inquisition.i
Very opposite, upon this subject, is the genius of the Gentoo code.8 In that very ancient body of law, we find it expressly declared, that wherever a true testimony would deprive a man of his life; if a false testimony would be the preservation of it, such false testimony is lawful.j
Between those extremes the constitution of Pennsylvaniak observes the temperate mean. “In prosecutions by indictment or information, a man cannot be compelled to give evidence against himself.” This is likewise an immemorial and an established principle of the common law.
In the case of oaths, says Beccaria, which are administered to a criminal to make him speak the truth, when the contrary is his greatest interest, there is a palpable contradiction between the laws and the natural sentiments of mankind. Can a man think himself obliged to contribute to his own destruction? Why should he be reduced to the terrible alternative of doing this, or of offending against God? For the law, which, in such a case, requires an oath, leaves him only the choice of being a bad christian, or of being a martyr. Such laws, continues he, are useless as well as unnatural: they are like a dike opposed directly to the course of the torrent: it is either immediately overwhelmed, or, by a whirlpool which itself forms, it is gradually undermined and destroyed.l
If it is useless, unjust, and unnatural, to attempt the extracting of truth by means of the oath; what is it, to make this attempt by means of the torture? This, like the former, is happily unknown to the common law. This, like the former, can be traced to the merciless tribunals of the inquisition. This, like the former, has been a practice both general and destructive.
To the civil law, its origin has been frequently ascribed. My Lord Coke, in his third Institute, declares himself explicitly of this opinion. He says, that in the reign of Henry the sixth, the Duke of Exeter and the Duke of Suffolk intended to have brought the civil laws into England; and, for a beginning, first brought into the tower the rack or brake allowed in many cases by the civil law.m To systems, as well as to men, justice should be done. From the imputation of a sanguinary as well as of a tyrannical spirit, the Roman law, at least in its brighter ages, deserves to be rescued. The different periods in the history of that celebrated law should be casefully distinguished; and the redness or the blackness of one era ought not to shade or stain the purity and the splendour of another.
In the times of the republick, torture was known at Rome; and this, it must be owned, was too much to be known any where. It was confined, however, to the slaves. The whole torrent of Cicero’s eloquence was poured indignant upon the infamous Verres,9 because he had the audacity as well as cruelty to torture a Roman citizen, with his eyes turned towards Rome. “Caedebatur virgis in medio foro Messanae civis Romanus, judices; cum interea nullus gemitus, nulla vox alia istius miseri, inter dolorem crepitumque plagarum, audebatur, nisi haec, civis Romanus sum.”—“O nomen dulce libertatis! O jus eximium nostrae civitatis! O lex Porcia, legesque Semproniae! O graviter desiderata, et aliquando reddita plebi Romanae tribunicia potestas! Huccine tandem omnia reciderunt, ut civis Romanus, in provincia populi Romani, in oppido faederatorum, abreo qui beneficio populi Romani fasces et secures haberet, deligatus in foro virgis caederetur? Quid, cum ignes ardentesque laminae caeterique cruciatus admovebantur?”n —“Non fuit his omnibus iste contentus. Spectet, inquit, patriam: in conspectu legum libertatisque moriatur.”o10
In another place, the same exquisite judge of human nature and of law describes, in the most masterly manner, the futility of that kind of proof, which arose from the torture of slaves. “Quaestiones nobis servorum, ac tormenta accusator minitatur; in quibus quanquam nihil periculi suspicamur, tamen illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis; regit quaesitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur.”p11
About three hundred years after Cicero, the celebrated Ulpian,12 characterized as “the friend of the laws and of the people,”q speaks of torture in the same strain—“Res est fragilis et periculosa, et quae veritatem fallat. Nam plerique patientia sive duritia tormentorum ita tormenta contemnunt, ut exprimi eis veritas nullo modo possit: alii tanta sunt impatientia, ut in quovis mentiri, quam pati tormenta velint. Ita fit, ut etiam vario modo fateantur, ut non tantum se, verum etiam alios comminentur.”r13
The early christians also bore their testimony against the cruel and absurd practice. “Cum quaeritur,” says St. Augustine,14 “utrum vir sit nocens, cruciatur; et innocens luit pro incerto scelere certissimas paenas; non quia illud commisisse detegitur, sed quia non commisisse nescitur; ignorantia judicis calamitas innocentis”—“judex torquit accusatum, ne occidat, nesciens, innocentem; tortum et innocentem occidit, quem, ne innocentem occiderit, torserat.”s15
Among the moderns, says a sensible French writer, the practice of torture has been adopted and carried to the last degree of atrocity, in those countries in which human nature has been most debased and most oppressed—I mean those of the inquisition: on the contrary, it has been abolished or moderated in those, in which the human mind has reassumed her liberty—in Geneva, in England, in France under Lewis the sixteenth.t16
From what has been observed, the inference is clear, that the confession of the criminal is not necessary to a conviction or sentence in the case of a capital crime.
2. In the case of a capital crime, ought this confession to be made?
I think not. When I say this, I speak with a reference to the effect, which this confession is allowed to have by the common law. I am justified by authority in what I say. From tenderness to life, the court is usually very averse to the receiving and recording of such a confession; and will advise the prisoner to retract it, and plead another plea to the indictment.u If a person under the age of twenty one years make this confession, the court in justice ought not to record it, but should put him to plead not guilty; or, at least, ought to inquire by an inquest of office concerning the truth, and circumstances of the fact.v A confession, refused altogether, or received with reluctance, ought not to be made.
3. Ought this confession to be received, and considered as a sufficient foundation for a conviction and judgment against life?
By the common law, as it now is and as it always has been received, such a confession is deemed a sufficient foundation for a conviction and judgment against life. This express, judicial, and direct confession is considered as the highest possible conviction;w and after it is made and received, the court does and can do nothing but pronounce the judgment of the law.x
It now, I apprehend, appears from principle, as it appeared a little while ago from authority, that, on an indictment for a capital crime, this express, judicial, and direct confession of it ought not to be made. He who makes it undertakes to be the arbiter of his own life: for, as we now see, the judgment of death follows as a consequence, necessary and unavoidable. A decision of this very solemn kind ought to be a decision of the society, upon the principles formerly explained, and not a decision of the party himself. For such a decision he may be unqualified, sometimes on account of his understanding, sometimes on account of his disposition. He may not be apprized of every legal ingredient, which ought to form a part in the composition of the crime which he confesses: human conduct is sometimes influenced by an irresolute impatience, as well as, at other times, by an overweening fondness of life.
It is certainly true, that persons have confessed themselves guilty of crimes, of which, indeed, they were innocent. A remarkable case of this nature is mentioned in our law books. A gentleman of the name of Harrison appeared alive, many years after three persons had been hanged for his murder; one of whom confessed it.y Many persons accused have confessed themselves guilty of witchcraft, and of other crimes equally problematical.
By the civil law, the confession of the person accused is not sufficient to convict him of a capital crime, without other proofs: for it may so happen, that such a confession is dictated only by the inquietude or despair of a troubled mind.z Another reason may likewise be assigned: he may, by a mistaken as well as by a disordered understanding, acknowledge that to be a crime, which in law is not that crime.
Thus much for confession, or the plea of guilty to an indictment.
III. An indictment may be answered by a plea to the jurisdiction of the court, in which it is found. This plea is proper when an indictment for any particular crime is found in a court, which has no authority to hear, try, or determine that particular crime: as if a court of quarter sessions should arraign one on an indictment for treason, of which that court has no jurisdiction.a
IV. An indictment may be answered by a plea in abatement—in other words, a plea, the design of which is to destroy the indictment, without answering the crime which it charges. This, in some cases, may be very proper; as when one is indicted and called to answer by a wrong name. If he suffer this mistake to pass unnoticed, it is doubtful whether he may not afterwards be indicted for the same crime by his right name. If the plea be supported, the indictment will be abated; but he may be immediately indicted anew, by the name which he has averred to be his true one. For in all pleas in abatement it is a rule, that he who would take advantage of a mistake, must show, at the same time, how that mistake may be rectified.
V. An indictment may be answered by a plea in bar. A plea in bar does not directly deny the commission of the crime charged; but it adduces and relies on some reason calculated to show, that the prisoner cannot be tried or punished for it, either on that or on any other indictment.
A former acquittal of the same charge is a plea of this kind: for it is a maxim firmly established by the common law, that no one can be brought in danger oftener than once on account of the same crime.
A former conviction of the same crime is also a plea of this kind; and depends on the same principle.
An attainder of any capital crime is a good plea in bar of an indictment for the same, or for any other crime. The reason is, that by the attainder the prisoner is dead in law; his blood is corrupted; and his estate is forfeited; so that an attempt to attaint him a second time would be altogether nugatory and superfluous.
It is natural and obvious to remark here, how the severity of punishment becomes the parent of impunity for crimes. When one is punished, or condemned to be punished, as far as he can be punished, for one crime, he may commit another, without any fear or risk of additional punishment.
In proportion as the criminal code becomes less severe, the operation of the plea of a former attainder becomes less powerful; for it is never proper, unless when a second trial could answer no purpose.
A pardon is another plea in bar of an indictment; for, by remitting the punishment of the crime, it destroys the end which is proposed by the prosecution. In England, an advantage is gained by pleading a pardon, which cannot be obtained by it after an attainder. A pardon prevents the corruption, but cannot restore the purity of blood.
If any one of these pleas in bar is successful, the party pleading it is discharged from farther prosecution; but if they should all fail, a resource is still left.
VI. An indictment may be answered by pleading not guilty of the crime which it charges. An issue, you recollect, is a point denied on one side and affirmed on the other. The plea of not guilty is called the general issue; because, on that plea, the whole charge comes regularly and fully under examination. It is averred by the indictment: it is denied by the plea. On this plea alone—such, as we have seen from the foregoing deduction, is the benignity of the common law—on this plea alone, the prisoner can receive a final judgment against him. A judgment of acquittal may be produced by many different causes: but a sentence of condemnation can be founded only on a conviction of guilt.
When the prisoner pleads that he is not guilty; he, for the trial of his plea, puts himself upon his country. The extensive and the emphatick import of this expression, neglected because it is common, was fully illustrated on another occasion.b
In ancient times, a variety of methods, by which crimes might be tried, was known to the common law. A trial might be had by ordeal; and this species of trial was either by fire or by water. The corsned, or morsel of execration, was another kind of trial. The trial by battle was a third kind. A fourth kind still remains and is our boast—the trial by jury. This trial, both in the United States and in this commonwealth, is a part of the constitution as well as of the law.
The history and the general principles of this institution, celebrated so long and so justly, have already been explained to you at large. I shall, therefore, confine myself at present to such remarks, chiefly of a practical nature, as will arise from the usual course of proceedings in trials for crimes.
By the constitution of Pennsylvania,c persons accused of crimes shall be tried by an impartial jury of the vicinage: or, in legal interpretation, of the county.d By the national constitution,e crimes committed in any state shall be tried in that state: and by a law of the United States,f twelve, at least, of the jurors must be summoned from the very county, in which the crime was committed.
In the court of king’s bench, there is time allowed between the arraignment and the trial, for a jury to be impanelled by a writ of venire facias directed to the sheriff. But justices of oyer and terminer and general gaol delivery, and justices of the quarter sessionsg of the peace, may, by a bare award and without any writ or precept, have a panel returned by that officer: for, in consequence of a general precept directed to him beforehand, he returns to the court a panel of jurors to try all persons, who may be called upon for their trial at that session. Before such justices, it is usual, for this reason, to try criminals immediately or soon after their arraignment.h
Jurors must be “homines liberi et legales,” men free and superiour to every legal exception; for every legal exception is a cause of challenge. My Lord Cokei enumerates four such causes—propter honoris respectum—propter defectum—propter delictum—propter affectum. The first cause relates to the peerage solely: the second is an exception against aliens and minors: the third is an exception against persons convicted of infamous crimes: the fourth is an exception which arises from bias or partiality. When this bias is apparent, the challenge founded on it is a principal one, and takes effect immediately: when the bias is only probable, the challenge is only to the favour; and its validity must be decided by triers, selected by the court for this purpose, till two are sworn of the jury. These two, as they are acknowledged or found to be impartial, become the triers of all the others.
Besides these challenges for cause, which operate as frequently as they exist, the benignity of the common law allows, as we saw before, every person indicted for a capital crime to challenge peremptorily, or without cause, any number of jurors under thirty six—the number of three juries.j In every capital crime, except treason, this number is, by a law of the United States,k reduced to twenty jurors. A person who challenges more than the number allowed, is, by the same law, to be treated as one who stands mute. That treatment we have already seen. By a law of Pennsylvania, a similar deduction is made in the number of peremptory challenges: but he, who challenges more than the number allowed, shall suffer as a criminal convicted.l There is a great difference between the two provisions: by that of the United States, the person indicted is treated as one who must be tried: by that of Pennsylvania, he is treated as one, who is already convicted.m
When an alien is tried, one half of his jury should be aliens, if he require it.n
On this subject of challenges it is proper to observe, that it seems to have been very familiar in the Roman law, during the existence of the commonwealth. In a criminal process, before the court of the praetor, the accuser and the accused were each allowed to except against fifteen of those returned to try the cause. This exception was denominated “rejectio judicum”—in the phraseology of our law, the challenge of the jury. Whenever Cicero uses the expression—judices; its legal translation is—Gentlemen of the jury.
Concerning the celebrated trial of Milo,17 we have a number of particular facts transmitted to us, which deserve our particular notice and attention. On the first day of the trial, or, as we would say, on the return of the venire facias, the judices—we would say the jury—were produced, that they might be balloted. The next day, they balloted eighty one persons to make up the jury. But the accuser had the liberty to challenge fifteen; and the accused could challenge as many. By these challenges on both sides, the number of those who were to give the verdict was reduced to fifty one. In another place we have a particular account of the votes given for, and of those given against, Milo: added together, they amount to the precise number of fifty one.o
At Rome, as we have seen on more occasions than one, prosecutions were considered as the causes of the accusers, rather than as the causes of the commonwealth. The proceedings were regulated by this supposition. Accordingly, in a criminal prosecution, the challenge extended to such persons as either party—the accuser as well as the accused—had reason, or thought he had reason, to suspect might be influenced in their verdict by favour, affection, consanguinity, malice, or any other passion, which might lead to partiality or a corrupt judgment.p
When a prosecution, as well as the defence of it, was viewed as the cause of an individual, it might be reasonable enough that, in this view, the power of challenging jurors should, on both sides, be equal. But when a prosecution is considered as the cause of the community, by a part of which community this very cause is to be tried; matters now assume a very different appearance. This important difference was fully explained in the account which I gave of the radical principles, as I may call them, of the trial by jury.q The accused stands alone on one side: on the other side stand the whole community: the jury are indeed a selected part; but still they are a part of the whole community: the power of challenging, therefore, ought not, on both sides, to be equal.
True it is, that, at the common law, the king might challenge peremptorily, as well as the prisoner. The distinction between a publick and a private prosecutor was not sufficiently regarded. From this characteristick feature, by the way, a strong intrinsick evidence appears of the lineage of juries. But equally true it is, that the distinction was perceived at an early period, was then established—I mean in the reign of Edward the first—and has been since uniformly observed.r In consequence of this distinction, it has been the law, for many centuries past, that the privilege of peremptory challenges, though enjoyed by the prisoner, is refused to the king.
If, on account of the number of challenges, or the nonattendance of the jurors, so many of the panel returned as are necessary to make a jury cannot be had, the court may award a tales—others qualified in the same manner—to be added to the panel, till twelve are sworn to try the cause.s
Their oath is—that they will well and truly try and true deliverance make between the—United States—and the prisoner at the bar, and a true verdict give according to their evidence. After they are sworn, the indictment is read, and the issue which they are sworn to try is stated to them: and then the publick prosecutor opens the cause, and arranges, in such order as he thinks most proper, the evidence which is to be offered in support of the prosecution.
But it is a settled rule at the common law, as it is now received in England, that, in a trial for a capital crime, upon the general issue, no counsel shall be allowed the prisoner, unless some point of law, proper to be debated, shall arise. By a statute, however, made in the reign of William the third, and by another made in that of George the second,18 an exception to this general and severe rule is introduced, for the benefit of those who are indicted or impeached for treason.t This practice in England is admitted to be a hard one, and not to be very consonant to the rest of the humane treatment of prisoners by the English law. Indeed the judges themselves are so sensible of this defect in their modern practice, that they generally allow a prisoner counsel to stand by him at the bar, and instruct him what questions to ask, or even to ask questions for him.
This practice of refusing counsel to those who are indicted for a capital crime, is not agreeable to the common law as it was formerly received in England. The ancient Mirrour tells us, that, in civil causes, counsel are necessary to manage and to defend them, by the rules of law and the customs of the realm. He adds, with irresistible force, that they are still more necessary to defend indictments of felony, than causes of a less important nature.u On this, as on many other great and interesting subjects, we have renewed the ancient common law. It is enacted by a law of the United States,v that persons indicted for crimes shall be allowed to make their full defence by counsel learned in the law. It is declared by the constitution of Pennsylvania,w that, in all criminal prosecutions, the accused has a right to be heard by himself and his counsel.
In England, it has been an ancient and commonly received practice, that, as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of witnesses. This doctrine was so unreasonable and severe, that the courts became ashamed of it, and gradually introduced a practice of examining witnesses for the prisoner: but they stopped in the middle of the road to redress—they would not examine the witnesses upon their oaths. The consequence was, that juries gave less credit to witnesses produced on the part of the prisoners, than to witnesses produced on the part of the crown.x
This practice, however, like the last, is not agreeable to the common law, as it was in ancient times received in England. To say the truth, says my Lord Coke,y we never read in any act of parliament, ancient author, bookcase, or record, that in criminal cases, the party accused should not have witnesses sworn for him; and therefore there is not so much as a scintilla juris19 against it. By a statute made in the reign of Queen Anne, the ancient common law on this point is renewed in England; and witnesses for the prisoner shall be examined upon oath, in the same manner as witnesses against him.z
On this subject, the ancient common law, as might have been expected, is renewed in the United States and in Pennsylvania. By a law of the formera it is provided, that persons indicted for crimes shall be allowed to make proof in their defence by lawful witnesses; and that, to compel the appearance of their witnesses, the court shall grant the same process as is granted to compel witnesses to appear on the prosecution. By the constitution of Pennsylvania,b it is declared, that, in all criminal prosecutions, the accused has a right to have compulsory process for obtaining witnesses in his favour.
In honour of the Founder of Pennsylvania it ought to be observed, that, in the charter of privilegesd which he granted to its inhabitants, he declared, “that all criminals shall have the same privileges of witnesses and counsel as their prosecutors.” On this as on many other subjects, Pennsylvania preceded England in point of liberal and enlightened improvement.
The constitution of Pennsylvaniae declares, that, in all criminal prosecutions, the accused has a right to meet the witnesses face to face. Those who know the nature and the mischiefs of secret accusations, know the importance of this provision, and the security which it produces.
By the constitution of the United States,f no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. The subject of confession has been already treated.
The courts of justice, in almost every age, and in almost every country, have had recourse to oaths, or appeals to heaven, as the most universal and the most powerful means to engage men to declare the truth. By the common law, before the testimony of a witness can be received, he is obliged to swear, that it shall be the truth, the whole truth, and nothing but the truth.
The testimony of witnesses is one species of evidence, as we formerly saw in those lectures,g in which the great subject of evidence was opened, and but just opened. The general principles, upon which testimony is received and believed, were then stated in a short and summary manner, as connected with some native propensities of the human mind. The important distinction between the credibility of witnesses and their competency was explained at large,h when I discoursed concerning the separate provinces of courts and juries. I observed, that every intelligent person, who is not infamous or interested, is a competent witness. The common law coincides, in this point, with the law of Athens: for, by that law, no man could be a witness in his own cause; and he who, by his ill behaviour, had rendered himself infamous—ατιμος—was deemed unworthy of credit.i
The Marquis of Beccaria is of opinion, that the objection against the competency of a witness should be confined altogether to his interest; and that his infamy should not exclude him. Every man of common sense, says he, every one whose ideas have some connexion with each other, and whose sensations are conformable to those of other men, may be a witness; but the credibility of his testimony will be in proportion as he is interested in declaring or concealing the truth. Hence it appears how irrational it is to exclude persons branded with infamy; for they ought to be credited when they have no interest in giving false testimony.j
If this subject is investigated upon principle, it will, perhaps, be found, that the practice of the law is more congenial to the native sentiments of our mind, than are the speculations of the ingenious philosopher.
Belief is the end proposed by evidence of every kind. Belief in testimony is produced by the supposed veracity of him who delivers it. The opinion of his veracity, as we saw when we examined the general principles of testimony,k is shaken, either when, in former instances, we have known him to deliver testimony which has been false; or when, in the present instance, we discover some strong inducement which may prevail on him to deceive. The latter part of this observation applies to interested witnesses; and the application to them is admitted to be a proper one, and to be sufficient to exclude them from testimony. But who is a person infamous in the eye of the common law? He who has been convicted of an infamous crime. What, in the eye of the common law, is an infamous crime? When we investigated the true meaning of the felleus animus,21 according to the common law, we found that it indicated a disposition, deceitful, false, and treacherous.l He who is convicted of an infamous crime, is one who has been proved guilty of some conduct, which evinced him to have been false—to have committed the crimen falsi; of which so many different grades—from treason to a cheat, and both included—are known to the law.
It may, however, be urged, on the principles of Beccaria, that to the conduct of which he has been convicted, he was probably drawn by a motive of interest; and that, if no such motive exists in the present instance, the inference from the past to the present is without foundation. To this it may be justly answered, that the reason why interest excludes a witness is not, because it certainly will, but because it possibly may, occasion a deviation from the truth; and because this deviation may be produced even by an involuntary and imperceptible bias, which interest will sometimes impress upon minds intentionally honest. That this last consideration has great weight in the judgment of the law, is evident from one of the modes which it adopts to discover the existence of interest—a mode, which, I believe, can be rationally accounted for only by this last consideration. A witness, who is suspected to be interested, may be examined upon his voir dire22 —in other words, he may be required to declare, upon oath, whether he is interested or not. This mode of proceeding obviously supposes him honest as well as interested. For if it supposed him dishonest, would not the conclusion be irresistible—that he who ought not to be believed when he gives his testimony in chief, as it is called, ought as little to be believed, when he gives his testimony on his voir dire? That involuntary and unavoidable bias which interest sometimes impresses on the mind, and which, of consequence, may affect the testimony of the offered witness, is deemed by the law a sufficient reason for his exclusion from testimony.
If he whose testimony may deceive, merely because he is interested, though he be honest, shall for this reason be excluded; shall we admit the testimony of one who is false, though he be disinterested? The former is rejected, because he may be biassed involuntarily; for the danger of even an involuntary bias is, for this purpose, sufficient: and shall one, whom interest has biassed voluntarily and infamously—shall such a one be received? On good grounds, therefore, are persons infamous excluded from giving testimony.
That evidence which arises from testimony is, in the law, denominated positive. There is another kind, which the law terms presumptive. When the fact itself cannot be proved by witnesses, that which comes nearest to such proof is, the proof of such circumstances, with which the fact is either necessarily or usually attended. This is presumptive evidence. When those circumstances are proved, with which the fact is necessarily attended, the presumption is said to be violent: when those circumstances only are proved with which the fact is usually attended, the presumption is said to be only probable.m
Presumptive proof, as described by the common law, coincides with that species which, in our general view of the sources of evidence, we saw rising from experience. On that occasion,n it was observed, that if an object is remembered to have been frequently, still more, if it is remembered to have been constantly succeeded by certain particular consequences, the conception of the object naturally associates to itself the conception of the consequences; and on the actual appearance of the object, the mind naturally anticipates the appearance of the consequences also: that if the consequences have followed the object constantly, and the observations of this constant connexion have been sufficiently numerous; the evidence produced by experience amounts to a moral certainty: that, if it has been frequent, but not entirely uniform; the evidence amounts only to probability, and is more or less probable, as the connexion has been more or less frequent. Violent presumption, as it is termed by the law, or moral certainty, as it is denominated by philosophy, amounts to full proof:o probability, or probable presumption, has also its due weight.p The coincidence between philosophy and law is a coincidence which, to the friends of both, always gives pleasure.
It ought to be observed here, that, in cases of a capital nature, all presumptive proof should be received with caution: for the law benignly holds that it is more eligible that ten guilty persons should escape, than that one innocent person should suffer a capital punishment.
After the evidence is heard, the jury are next to consider what verdict they ought to give upon it; for they are sworn, as we have seen, to give a true verdict according to their evidence. To give a verdict is the great purpose for which they are summoned and empanelled. Till they give a verdict, therefore, they cannot be discharged.q This verdict may either be special—in other words, it may state particularly the facts arising in the cause, and leave to the court the decision of the law resulting from those facts; or it may be general—in other words, it may determine both the facts and the law. A general verdict is either guilty or not guilty: on a verdict of not guilty, the prisoner is discharged: by a verdict of guilty, he is convicted: on a conviction the judgment and the punishment pronounced and inflicted by the law regularly follow, unless they are intercepted by errour in the proceedings, by a reprieve, or by a pardon.
When a sentence of death is pronounced, the immediate and inseparable consequence, by the common law, is attainder. The law puts him out of its protection, considers him as a bane to human society, and takes no farther care of him than barely to see him executed: he is already considered as dead in law. There is, in capital cases, a great difference between a man convicted and one attainted. Till judgment is given, there is, in such cases, still a possibility of innocence in the contemplation of the law.r
In England the consequences of attainder are forfeiture, escheat, and corruption of blood. Concerning these subjects we have already treated fully.
I have now enumerated and described the several crimes, the several punishments, and the modes of prosecuting criminals. In doing this, I have conformed myself to the common law and to the improvements made upon it by the constitutions and laws of the United States and of Pennsylvania.
THE END OF THE LECTURES ON LAW.
The purpose of this glossary is to identify the works Wilson referred to. The editions listed are not necessarily the particular ones Wilson used. In general, where multiple editions existed, I have cited an early edition, usually the first. In a few cases this did not seem advisable (e.g. Hooker’s Ecclesiastical Polity, which was first published in embryonic form many years before the cited full-length edition which Wilson probably used), and I have then cited the earliest available full-length edition. Except for such completely self-explanatory references as those to the Bible, the United States Constitution, and national statutes, I have identified them all, even at some risk of explaining the obvious. A reader of these volumes is not likely to wonder what “Bl. Com.” refers to, but “Ld. Ray.” might slow him down a little, and the simplest course was to gloss everything. This has the additional advantage, as I said in the Introduction, of providing us with a compendious list of Wilson’s scholarly sources.
In his classical citations, Wilson consistently uses the abbreviations l. for liber (book) and c. for capitulum (chapter).
The Collected Works of James Wilson was originally to be edited solely by Kermit Hall, a distinguished scholar of constitutional law and president of the State University of New York at Albany. Because of my previous work on Wilson, I had consulted with Liberty Fund on the project and agreed to write a bibliographical essay for the volume. After Kermit Hall’s tragic death in 2006, Liberty Fund asked me to help bring the project to completion. Although we share the same surname, Kermit Hall and I are related only by our interest in constitutional law and in James Wilson.
Kermit Hall had made significant progress on these volumes, but much work remained. I found it necessary to add and rearrange documents and to write and revise numerous headnotes and annotations. I made only minor stylistic and grammatical revisions to Kermit Hall’s original introduction.
Joining a project of this magnitude at a relatively late stage would have been extremely difficult without the excellent work of editors at Liberty Fund—notably Laura Goetz and Dan Kirklin. As well, I am grateful for support provided by George Fox University, particularly my student assistants Deanne Kastine and Janna McKee. Master librarian Alex Rolfe provided expert assistance tracking down obscure figures for annotations. Joshua W. D. Smith of Veritas School made last-minute translations of approximately two dozen obscure Latin phrases. Finally, as noted above, these volumes exist because of Maynard Garrison, to whom all students of Wilson owe a debt of gratitude.
I would like to dedicate my contributions to these volumes to the founders, teachers, board members, and students of Veritas School in Newberg, Oregon.
Mark David Hall
May 25, 2007
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[a. ]Wood. Ins. 81. 1.Bl. Com. 137. 4. Bl. Com. 287.
[b. ]2. Haw. 85.
[c. ]Art. 9. s. 8.
[d. ]2. Haw. 84.
[e. ]4. Bl. Com. 288.
[f. ]2. Haw. 86.
[g. ]4. Bl. Com. 286.
[h. ]2. Haw.74.
[i. ]Id. 75.
[j. ]Id. 86. 4. Bl. Com. 289.
[k. ]2. Haw. 76.
[l. ]Id. 77.
[m. ]Id. ibid.
[n. ]2. Haw. 80.
[o. ]Id. 81.
[p. ]Id. ibid.
[q. ]Id. 83.
[r. ]Id. 87.
[s. ]2. Ins. 189.
[t. ]4. Bl. Com. 294.
[u. ]Id. 296.
[v. ]2. Haw. 90.
[w. ]Art. 9. s. 13, 14.
[x. ]4. Bl. Com. 297.
[y. ]3. Ins. 34.
[z. ]Bract. 105. a.
[a. ]Fleta. l. 1. c. 26.
[1. ]Guards are accustomed to condemn those who are to be held in prison to being confined in chains; but things of this sort are forbidden by law, because a prison ought to be regarded as confining men, not punishing them. Indeed, the guards of jails should not increase the punishment for those committed to their care, nor should they torture them. But, with all cruelty removed, and with piety brought to bear, they ought to execute the judgments promulgated against their prisoners.
[b. ]4. Bl. Com. 308. 2. Haw. 155.
[c. ]2. Haw. 157.
[d. ]2. Haw. 164. 4. Bl. Com. 310.
[e. ]4. Bl. Com. 311.
[f. ]1. Hale. P.C. 9.
[g. ]De mor. Ger. c. 21.
[2. ]Homicide is atoned for by a certain number of cattle and sheep; and the entire family receives satisfaction.
[h. ]4. Bl. Com. 303.
[3. ]Richard Empson (?–1510) and Edmund Dudley (c. 1462–1510) were members of Henry VII’s controversial tribunal called Council Learned in the Law. After Henry VII’s death they were both executed for treason.
[i. ]Id. 307.
[j. ]Art 9. s. 10.
[k. ]2. Haw. 220.
[l. ]Id. 210.
[4. ]That you cause to come. This writ caused the sheriff to summon persons for jury service or to summon one charged with a petit misdemeanor or on a penal statute.
[m. ]2. Haw. 283.
[n. ]2. Haw. 283.
[o. ]Id. 284.
[p. ]4. Bl. Com. 314.
[q. ]4. Bl. Com. 314.
[r. ]Id. ibid. 2. Hale. P. C. 205.
[s. ]1. Hale. P. C. 497.
[t. ]2. Haw. 308.
[u. ]2. Ins. 316.
[v. ]Bract. 137. a.
[5. ]When the prisoner is to be brought into the presence of his judges, he should not be led forth with hands tied (although sometimes with foot-fetters on account of the danger of escape) and that for this reason, lest he seem forced to undergo some ordeal.
[w. ]6. St. Tri. 231.
[x. ]3. Ld. Bac. 270.
[y. ]2. Hale. P. C. 316.
[z. ]Id. 319.
[6. ]A cruel and relentless punishment.
[a. ]4. Bl. Com. 323.
[b. ]Bar. on St. 87.
[c. ]Laws U. S. 1. con. 2. sess. c. 9. s. 30.
[d. ]A similar provision is contained in an act of assembly of Pennsylvania. 3. Laws Penn. 119. Ed.
[e. ]2. Hale. P. C. 257.
[f. ]2. Hale. P. C. 225.
[g. ]Bec. c. 16.
[h. ]5. War. Bib. 321.
[7. ]Could refer to either (1) Guillaume de Lamoignon (1617–1677), a French lawyer and president of the parlement of France (1658), or (2), Guillaume-Chrétien de Lamoignon de Malesherbes (1721–1794), president of the cour des aides in the parlement of France and counsel to Louis XVI.
[i. ]8. War. Bib. 195.
[8. ]The Anglo-Brahmanical body of law that resulted from Warren Hastings’s attempt to codify Hindu law. It was published under the title A Code of Gentoo Laws (1776).
[j. ]Gent. Laws. 115.
[k. ]Art. 9. s. 9.
[l. ]Bec. c. 18.
[m. ]3. Ins. 35.
[9. ]Gaius Verres (c. 120–43 bc) was a Roman magistrate notorious for his misgovernment of Sicily.
[n. ]Cic. in Ver. V. 62. 63.
[o. ]Id. 66.
[10. ]“A Roman citizen, Judges, was scourged with whips in the middle of the forum of Messana. When all the while no other groan, no other word, was heard from that poor wretch amid the pain and noise of the lashes but this: I am a Roman citizen”—“O sweet name of liberty! O most excellent law of our state! O porcian Law and the Sempronian Laws! O power of the tribunate, urgently longed for and finally restored to the Roman People! Have then all things regressed to this point, that a Roman citizen, in a province of the Roman People and in a town of the allies, should be bound and lashed in the forum by a man who held the insignia of office by the beneficence of the Roman People? And what about when fires, burning plates, and other tortures were brought to bear?”—“But he [i.e., Verres] was not content with all this. He will, he says, gaze upon his Fatherland; may he die in the gaze of her laws and liberty!”
[p. ]Cic. pro. P. Syl. c. 28.
[11. ]The accuser threatens us with investigations and tortures of our slaves; although we suspect not the slightest danger to ourselves in such matters, even so those torturings are controlled by pain, moderated by the nature of the mind and body of the individual, ruled by the investigator, bent by desire, corrupted by hope, weakened by fear—so that, in short, in so many exigencies no place is left for the truth.
[12. ]Domitius Ulpianus (?–228) was a Roman jurist and legal writer.
[q. ]1. Gib. 249.
[r. ]2. War. Bib. 23.
[13. ]It is a treacherous and dangerous thing, and such as to delude the truth. For many, whether through capacity to suffer or toughness, so defy the torments of torturers that it is impossible to extort the truth from them. Others are so little able to suffer that they are willing to lie in any way to avoid undergoing torture. Thus it happens that they even confess inconsistently, so that not only do they inform against themselves, but implicate others.
[14. ]Augustine of Hippo, or St. Augustine (354–430), was an important early Christian theologian.
[s. ]Id. 22.
[15. ]When one wishes to know whether a man is guilty, he is tortured; and an innocent man suffers most definite punishments for an indefinite offense; not because he is discovered to have committed that offense, but because it is not known that he did not commit it; the judge’s lack of knowledge is the innocent man’s misfortune. The judge tortures the accused lest unknowingly he should kill an innocent man; he kills the tortured and innocent man whom he had tortured in order that he not kill an innocent man.
[t. ]8. War. Bib. 197.
[16. ]Louis XVI (1754–1793) was king of France from 1774 to 1793. He was executed during the French Revolution.
[u. ]2. Hale. P. C. 225. 4. Bl. Com. 324.
[v. ]1. Hale. P. C. 24.
[w. ]2. Haw. 333.
[x. ]4. Bl. Com. 324.
[y. ]Tr. per Pais. 603.
[z. ]1. Domat. 460.
[a. ]2. Hale. P. C. 256.
[b. ]Ante. vol. 2. p. 958. 986.
[c. ]Art. 9. s. 9.
[d. ]2. Hale. P. C. 264.
[e. ]Art. 3. s. 3.
[f. ]1. cong. 1. sess. c. 20. s. 29.
[g. ]Wood. Ins. 666.
[h. ]4. Bl. Com. 344, 345. 2. Haw. 405.
[i. ]1. Ins. 156. b.
[j. ]2. Haw. 413.
[k. ]1. cong. 2. sess. c. 9. s. 30.
[l. ]1. Laws. Penn. 134.
[m. ]The law of Pennsylvania is now similar to that of the United States. 3. Laws Penn. 119. Ed.
[n. ]3. Bl. Com. 360. 4. Bl. Com. 346. 2. Haw. 420. 1. Dall. 73.
[17. ]A famous trial in 52 bc in which T. Annius Milo, who was represented by Cicero, was convicted for the murder of Publius Clodius.
[o. ]Pet. on Jur. 114.
[p. ]Id. 180.
[q. ]Ante. vol. 2. p. 960.
[r. ]2. Haw. 412.
[s. ]4. Bl. Com. 348.
[18. ]George II (1683–1760) was king of England from 1727 to 1760.
[t. ]4. Bl. Com. 349, 350.
[u. ]Mir. c. 3.
[v. ]1. cong. 2. sess. c. 9. s. 29.
[w. ]Art. 9. s.
[x. ]4. Bl. Com. 352.
[y. ]3. Ins. 79.
[19. ]A particle of right; a spark of interest.
[z. ]St. 2. An. st. 2. c. 9.
[a. ]1. cong. 2. sess. c. 9. s. 29.
[b. ]Art. 9. s. 9.
[20. ]To testify. This type of habeas corpus writ was used to bring a prisoner to testify in court.
[c. ]3. Bl. Com. 369.
[d. ]S. 5.
[e. ]Art. 9. s. 9.
[f. ]Art. 3. s. 3.
[g. ]Ante. vol. 2. p. 807. et seq.
[h. ]Ante. vol. 2. p. 1002–1006.
[i. ]1. Pot. Ant. 117.
[j. ]Bec. c. 13.
[k. ]Ante. vol. 2. p. 811. 812.
[21. ]A deceitful, false, or treacherous disposition.
[l. ]Ante. p. 1101.
[22. ]To speak the truth.
[m. ]3. Bl. Com. 371.
[n. ]Ante vol. 2. p. 815.
[o. ]1. Ins. 6. b.
[p. ]3. Bl. Com. 372.
[q. ]4. Bl. Com. 354.
[r. ]4. Bl. Com. 373.
[* ]“Bibliographical Glossary” reprinted by permission of the publisher from The Works of James Wilson: Volume II, edited by Robert Green McCloskey, pp. 849–56; Cambridge, Mass.: The Belknap Press of Harvard University Press, Copyright © 1967 by the President and Fellows of Harvard College.