Front Page Titles (by Subject) 34.: SIR JAMES FITZJAMES STEPHEN, CRIMINAL PROCEDURE FROM THE THIRTEENTH TO THE EIGHTEENTH CENTURY 1 - Select Essays in Anglo-American Legal History, vol. 2
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34.: SIR JAMES FITZJAMES STEPHEN, CRIMINAL PROCEDURE FROM THE THIRTEENTH TO THE EIGHTEENTH CENTURY 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 2 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1908). Vol. 2.
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CRIMINAL PROCEDURE FROM THE THIRTEENTH TO THE EIGHTEENTH CENTURY1
HAVING in the last chapter traced the history of the courts of a criminal jurisdiction, I now proceed to the history of the procedure followed for the punishment of criminals. I shall give the history of each step in the procedure separately, and I intend in the present chapter to treat of the procedure from the arrest of the offender to his discharge or committal for trial. This consists of two stages, namely, the apprehension of the offender, closely connected with which is the law as to the suppression of offences, and the preliminary investigation before a magistrate, which results in the discharge, or committal for trial, or bailing of the supposed offender.
In each case, the law itself was as a matter of fact subsequent to the establishment of the officers or courts by which it was carried into execution. Also, in each case, after the practice of the officers or courts had gradually formed the law, alterations were made by statute both in the law itself and as to the officers and courts by whom it was to be administered.
1The Apprehension of Offenders and Suppression of Offences
I have described above the system for the apprehension of offenders and the prevention of crime which existed down to the time of William the Conqueror and his sons.
The foundation of the whole system of criminal procedure was the prerogative of keeping the peace, which is as old as the monarchy itself, and which was, as it still is, embodied in the expression, “The King’s Peace,” the legal name of the normal state of society. This prerogative was exercised at all times through officers collectively described as the 2 Conservators of the Peace. The King and certain great officers (the chancellor, the constable, the marshal, the steward, and the judges of the King’s Bench) were conservators of the peace throughout England, but the ordinary conservators of the peace were the sheriff, the coroner, the justices of the peace, the constable, each in his own district. During the reigns of Henry II., Richard I., John, Henry III., and Edward I., the system administered by these authorities (with the exception of the justices of the peace, who were not established till the reign of Edward III.) was elaborated and rendered more stringent than it had been before the Conquest by a long series of enactments.
The first of these was the 3 Assize of Clarendon issued by Henry II. in 1166, just 100 years after the Conquest. It was re-issued as the 4 Assize of Northampton in 1176, in the form of instructions to the six “committees of judges who were to visit the circuits then marked out.” The provisions of the Assize of Clarendon bear more directly on the present subject than those of the Assize of Northampton.
1 The Assize provided that the sheriffs and justices should make inquiry upon the oath of twelve men from every hundred and four men from every township whether any man in any township was 2 a robber, murderer, or thief, or a receiver of robbers, murderers, or thieves; that every person so accused should be taken and brought before the sheriffs and by them before the justices, and that no lord of a franchise 3 “nec in honore etiam de Wallingeford” should interfere to prevent the sheriff from entering his franchise either to arrest accused persons or to examine the frank pledges and see that every one was a member of a frank pledge. The Assize of Northampton 4 enacts amongst other things that every robber on being taken is to be delivered to the custody of the sheriff, and in his absence to be taken to the nearest “castellanus” to be kept by him till he is delivered to the sheriff. The Assize also provides (art. 2) that no one is to be allowed to entertain any guest in his house, either in a town or in the country (neque in burgo neque in villâ), for more than a night unless the guest has some 5 reasonable excuse which the host is to show to his neighbours, and when the guest leaves, he must do so in the presence of neighbours and by day.
By the 6 Assize of Arms, issued in 1181, every one was bound to have certain arms according to his property. The justices, on their eyre, were to make the representatives of all hundreds and towns swear to give in a return showing the property of all persons in the neighbourhood, and which of them had the arms which, according to their property, they were bound to have. Those who had not such arms were to be brought before the justices to swear to have them by a given day, and “justitiæ facient dici per omnes comitatus per quos ituræ sunt, quod qui hæc arma non habuerint secundum quod prædictum est, dominus rex capiet se ad eorum membra et nullo modo capiet ab eis terram vel catallum.”
The main object of these provisions no doubt was to provide a military force; but they were also intended to give the local authorities the means of suppressing violent crimes, for the persons so armed formed the power of the county (posse comitatus), which it was the duty of the sheriff in case of need to raise by hue and cry.
This is set in a striking light by a 1 passage in Bracton, which describes the steps to be taken on opening a commission of eyre by the justices in eyre. The representatives of the county having been convened, the justices were to make a speech to them. “In the first place, concerning the peace of our Lord the King, and the violation of his justice by murderers, robbers, and burglars, who exercise their malice by day and by night, not only against men travelling from place to place, but against men sleeping in their beds, and that our Lord the King orders all his faithful subjects, by the faith which they owe to him, and as they wish to preserve their own, to give effectual and diligent counsel and aid to the preservation of peace and justice and to the taking away and repression of the malice of the aforesaid.” The principal persons are then to be taken apart, and are to be privately informed “that all persons of fifteen years of age and upwards, as well knights as others, must swear that they will not receive outlaws, murderers, robbers, or burglars, nor consent to them, nor to those who receive them, and that if they know of such persons, they will cause them to be attached, and give information to the sheriffs and bailiffs, and, if hue and cry is raised upon them, will, as soon as they hear the cry, follow with their households and the men of their land.” If the criminal is not taken on the spot, he is to be tracked. “Let them follow the track through their own land, and at the end of their own land show it to the lord of the next land, and thus let pursuit be made from land to land” (township to township) “with all diligence till the criminals are taken, and let there be no delay in following the track unless a difficulty arises by the coming on of night, or by other reasonable cause, and they must, according to their power, arrest those whom they suspect without waiting for the orders of the justice or the sheriff, and must inform the justices and sheriffs of what they have done. They must also swear that if any one comes into any village or town or elsewhere to buy bread or beer or other victuals, and is suspected of doing so for the use of criminals, they will arrest him and deliver him, when he is arrested, to the sheriff or his bailiffs. They must also swear that they will take in no one as a guest in their houses by night, unless he is well known, and that if they entertain any unknown person they will not permit him to leave on the morrow before it is clear daylight, and that in the presence of three or four of their nearest neighbours.”
Bracton wrote in the reign of Henry III. In the time of Henry’s son and successor the system embodied in these enactments reached its highest point of strictness. This appears from the provisions of the Statute of Winchester (13 Edw. 1, st. 2, c. 1, 2, 4, 5, 6), passed in 1285. 1 This statute enacts (ch. 2) that when a robbery is committed the hundred shall be answerable unless the robbers are apprehended within forty days, that in all walled towns the gates shall be shut from sunset to sunrise, that a watch should be set at each gate, and “that no man do lodge in suburbs from nine of the clock until day without his host will answer for him.” All strangers passing the watch at night are to be arrested till morning. All roads are to be cleared, “so that there be neither dyke, underwood, nor bush whereby a man may lurk to do hurt” within 200 feet on each side of the road. Lastly, every man is to “have in his house harness to keep the peace after the ancient assize” (the Assize of Arms). The arms were to be viewed twice a year by constables chosen for that purpose, who were to present defaulters to the justices. The sheriffs and bailiffs were to follow the cry with proper horses and armour whenever it might be raised.
By this time frank pledge must have become obsolete. The Statute of Winchester makes no mention of it, nor does the Statutum Walliæ, nor indeed does any other statute with which I am acquainted treat it as an actually existing institution for keeping the peace. The name indeed continued and still exists. The view of the frank pledge, that is to say, the verification of the fact that the frank pledges were in full efficiency, and that every one belonged to such a body, was anciently one of the most important duties of the county and hundred courts and the courts leet. Hence, as the county and hundred courts were disused, the expression “the view of frank pledge” came to be synonymous with “court leet.” The chief business transacted in these views of frank pledge or courts leet was the presentment of petty nuisances, and especially the “assiza panis et cerevisiæ,” violations by bakers and brewers of rules as to the quality of their bread and beer. It is in this sense that frank pledge is referred to in the 1 Parliament Rolls, and that the expression is used by Coke. The “Statute for View of Frank Pledge” (18 Edw. 2, ad 1325) specifies thirty-four such articles as to which stewards were to inquire in their leets.
Shortly the system just described was as follows. Upon the commission of a felony any one might arrest the offender, and it was the duty of any constable to do so. If the offender was not arrested on the spot, hue and cry might and ought to be raised. The sheriff and constables from the earliest times, the justices of the peace from the beginning of the reign of Edward III., were the officers by whom the cry was to be raised. In order to render the system effective, every one was bound to keep arms to follow the cry when required, all towns were to be watched and the gates shut at night, and all travelling was put under severe restrictions.
The Assize of Arms and the 1 Statute of Winchester fell into disuse, but the right of summary arrest in cases of felony continues to this day to be the law of the land, and though the sheriff’s personal intervention in the matter has practically fallen into disuse, the justices, and the constable are still the authorities by whom the system is worked.
One great alteration was made in the system just described between the fourteenth and the seventeenth centuries. During that period, summonses and warrants superseded the old hue and cry which practically fell into disuse. The history of this substitution is curious.
Justices of the peace were first instituted in 1326. Their duties were described in the most general terms. They were by 1 Edw. 3, c. 16, “assigned to keep the peace.” By 34 Edw. 3, c. 1 (1360), they were empowered “to take and arrest all those they may find by indictment or suspicion and put them in prison.” But neither in these nor any other early statute with which I am acquainted is there any provision which enables them directly to take an information as to the commission of a crime and issue a summons or warrant for the apprehension of the suspected person.
The statutes above quoted give them no other authority for the apprehension of offenders than was by the common law inherent in every constable and indeed in every private person. By degrees, however, the practice of issuing warrants came into use. The general authority of the justices in all matters relating to crime and indeed to the whole internal government of the country was firmly established by a great variety of statutes, and it would be natural that their directions should be taken when a crime was committed. It would also be more natural for the justice to authorise the constable to undertake the actual arrest of the offenders than to do it himself, and it might often be convenient, if a suspected person was to be searched for in more directions than one, to give written authority to various persons for the purpose.
This would be specially convenient in the case of a hue and cry. If offenders were to be followed from township to township, the different constables of each being required to join, a written authority from a known public officer like a justice of the peace would be a great convenience. The phrase1 “grant a hue and cry” was apparently in common use in the seventeenth century for granting a warrant, but the granting of warrants was afterwards recognised by2 various statutes, and was finally set upon an3 indisputable statutory foundation in 1848 by 11 & 12 Vic. c. 42, ss. 1, 2, 8, &c. The effect of these provisions is that, where a complaint is made to any justice that any person has committed any indictable offence, the justice may issue a summons to such person, or, if he thinks it necessary, and if the charge is made on oath, and in writing, a warrant for his apprehension.
The power of the justices to issue such process was however disputed for centuries. In 4 Hawkins’s Pleas of the Crown, many authorities upon the subject are referred to, and a very qualified and hesitating conclusion is reached, that “perhaps it is the better opinion at this day that any constable or private person to whom a warrant shall be directed from a justice of the peace to arrest a particular person for felony or any other misdemeanour within his jurisdiction may lawfully execute it, whether the person mentioned in it be in truth guilty or innocent, and whether he were indicted of the same offence or not, and whether any felony were in truth committed or not.” This hesitation is explained by the difference of opinion between Coke and Hale upon the subject. 1 Coke maintained that, before the statutes of Philip and Mary authorising justices to examine witnesses when a person was arrested for felony, “a justice of the peace could not make a warrant to take a man for felony unless he be indicted thereof.” He also maintained that the only warrant which the statutes of Philip and Mary could be taken to authorise by implication (they say nothing at all about warrants) were warrants to constables to see the king’s peace kept upon the occasion of the apprehension of the person suspected by the person having suspicion. Coke goes so far as to maintain that upon such a warrant the constable would not be justified in breaking open a door, “for it is in law the arrest of the party that hath the knowledge or suspicion.”
2 Hale referring to this passage, says that Coke “hath delivered certain tenets which, if they should hold to be law, would much abridge the power of justices of the peace, and give a loose to felons to escape unpunished in most cases.” He then proceeds to refer to the statutes of Edward III., and argues in substance that as at common law a private person might and a constable ought to arrest supposed felons upon suspicion without warrant, the justice might do so à fortiori, in virtue of the general terms of the statutes, and that he might also “issue a warrant, to apprehend a person suspected of felony though the original suspicion be not in himself, but in the party that prays his warrant, and the reason is because he is a competent judge of the probabilities offered to him of such suspicion.” This opinion prevailed in practice long before any necessity arose for inquiring whether it was well founded in theory. That it was highly expedient that justices of the peace should act judicially in issuing warrants admits of no question at all. That it was intended that they should do so when the statutes under which they were first appointed were enacted seems to me unlikely. If such had been the intention of the legislature, it is probable that they would have been authorized and indeed required to proceed in the same manner as coroners, namely, by summoning inquests; but, however this may be, the whole subject is now set on a perfectly plain foundation by the statutes already referred to.
Whilst the duties of private persons, constables, and justices were being gradually ascertained, the law as to the circumstances which would justify an arrest for felony was being elaborated. In an earlier chapter I have given some illustrations of the manner in which all sorts of criminals, and especially all thieves, were regarded in very early times as enemies to be put to death almost like wild animals. It would not be worth while to trace minutely the steps by which this general and crude view of the subject was gradually reduced to the shape in which it now stands. Questions continually arose as to whether a person who had killed another in resisting apprehension was guilty of any offence at all, and, if guilty, whether the offence of which he was guilty amounted to murder or manslaughter. These cases were decided from time to time according to a variety of distinctions suggested by the circumstances of each particular case, a long detail of which may be found in 1 Hale’s Pleas of the Crown which is still the leading authority as to the general principles of the subject, though subsequent decisions and enactments have to some extent modified Hale’s conclusions. 2 The result of his inquiry may be thus stated:—
1. Any person may arrest any person who is actually committing or has actually committed any felony.
2. Any person may arrest any person whom he suspects on reasonable grounds to have committed any felony, if a felony has actually been committed.
3. Any constable may arrest any person whom he suspects on reasonable grounds of having committed any felony, whether in fact any such felony has been committed or not.
The common law did not authorise the arrest of persons guilty or suspected of misdemeanours, except in cases of an actual breach of the peace either by an affray or by violence to an individual. In such cases the arrest had to be made not so much for the purpose of bringing the offender to justice as in order to preserve the peace, and the right to arrest was accordingly limited to cases in which the person to be arrested was taken in the fact or immediately after its commission.
As to the degree of force which may be used in order to arrest a criminal, many questions might be suggested which could be answered only by way of conjecture. Two leading principles, however, may be laid down with some confidence, which are also to be collected from Hale. The first is 1 that if a felon flies or resists those who try to apprehend him, and cannot otherwise be taken, he may lawfully be killed. 2 The second is that a person who makes an arrest because it is his legal duty to do so is more readily justified in using violence for the purpose than a person who is under no such duty. If A kills B, whom he suspects on probable grounds of having committed a felony, though in fact he has not, and whom he cannot otherwise arrest, it appears probable that A is guilty of manslaughter if he is a private person, but if A is a constable following a hue and cry, his act is justifiable because he acts in the discharge of a legal duty.
The common law as to the arrest of prisoners remained substantially unaltered for a great length of time. It is indeed in force at this day with some few modifications, to be stated immediately; but since it reached the state of development just described, changes of the greatest importance have been made in the position of the officers by whom it is put in force. These changes I now proceed to notice.
From the earliest times to our own days, there were two bodies of police in England, namely, the parish and high constables, and the watchmen in cities and boroughs. 1 The parish constables, under various names (borsholders, head-boroughs, tithingmen, chief pledges, &c.), were probably the successors of the old reeves, who with their four men represented the township on all occasions at the beginning of our legal history. In each hundred and in many franchises there were also high constables, or similar officers with other names, who were to the hundred or franchise what the parish constables were to the township. These officers continued to be appointed till within the last few years. The duties of the high constables came to be almost nominal, consisting principally in issuing various notices under different statutes, and they were relieved of them almost entirely in 1844 by the 7 & 8 Vic. c. 33, ss. 7 & 8. The office itself was practically abolished in 1869 by 32 & 33 Vic. c. 47. The parish constables continued to be appointed till 1872, when their appointment was rendered unnecessary (except in some special cases) by 35 & 36 Vic. c. 72; but from the time when the Statute of Winchester and the Assize of Arms became obsolete till the year 1829, they were the only body of men, except the watchmen in cities and boroughs, charged with the duty of apprehending criminals and preventing crimes.
The watchmen in towns were first established by the Statute of Winchester, and the powers of the town magistrates depended originally upon their charters, which were often silent on the subject of watchmen. At a time which I am not able to fix with precision, but which from 2 expressions in the Report of the Municipal Corporation Commission I think must have been in the latter part of the last century, it became customary to pass Local Improvement Acts, by which the management of matters connected with the police of towns was usually vested in a body of trustees or commissioners distinct from the corporation itself. There were great differences in the manner in which these powers were allotted. The following passage occurs in the report already quoted:—3 “In a very great number of towns there are no watchmen or police officers of any kind except the constables, who are unsalaried officers. They are sometimes appointed at a court leet, more frequently by the corporate authorities. The police, and the powers conferred by local acts for paving, lighting, and watching the town, are seldom exclusively in the jurisdiction of the corporation; sometimes they are shared by the corporate authorities and commissioners; sometimes they are vested in commissioners alone.” A striking illustration of the confusion thus produced is given in 1 Colquhoun’s Treatise on the Police of the Metropolis. He observes:—“At present the watchmen destined to guard the lives and property of the inhabitants residing in near 8,000 streets, lanes, courts, and alleys, and about 152,000 houses, composing the whole of the metropolis and its environs, are under the directions of not less than above seventy different trusts, regulated by perhaps double the number of local acts of parliament (varying in many shades from one another), under which these directors, guardians, governors, trustees, or vestries, according to the title they assume, are authorized to act, each attending only to their own particular ward, parish, hamlet, liberty, or precinct.”
Nothing could exceed the inefficiency of the constables and watchmen. Of the constables, Dalton (in the reign of James I.) observes that they “are often absent from their houses, being for the most part husbandmen, and so most of the day in the fields.” The charge of Dogberry shows probably with no great caricature what sort of watchmen Shakespeare was familiar with. In the work already quoted, 2 Colquhoun observes of the watchmen of his time that the pay was so bad that “the managers have no alternative but to accept of such aged and often superannuated men living in their respective districts as may offer their services.” . . . “What can be expected from such watchmen? Aged in general; often feeble; and almost on every occasion half starved from the limited allowance they receive, and without any claim upon the public or the least hope of reward held out even if they performed any meritorious service” . . . “and, above all, making so many parts of an immense system, without any general superintendence, disjointed from the nature of its organisation, it is only a matter of wonder that the protection afforded should be what it really is.”
The defects of this state of things were slightly, but very slightly, mitigated by the institution of a number of small bodies of constables under the direction of particular magistrates. In the year 1796 there were eight such constables at Bow Street (known as Bow-Street runners), and six others at each of seven other police offices in London, making in all fifty constables who gave their whole time to their business. There were also sixty-seven mounted police, forming what was called the horse patrol, who patrolled the roads near London for the suppression of highwaymen. Probably there may have been arrangements more or less resembling these in other large towns. This system continued practically unaltered till the year 1829, although 1 various parliamentary inquiries into the subject took place. In 1829 was passed the first of a series of acts which put the administration of the law as to the apprehension of offenders upon quite a new footing.
The result is that a disciplined force in the nature of a standing army for the suppression of crime and the apprehension of offenders has been provided throughout every part of England by four successive steps, namely, (1) the establishment of the metropolitan police in 1829, (2) that of the borough police in 1836, (3) the partial establishment of the county police by the permissive act of 1839, and (4) its complete establishment by the compulsory act of 1856.
Before the establishment of justices of the peace, cases of public importance were inquired into before the Privy Council, as I have already observed; but there seems to have been no preliminary inquiry at all in regard to common offences, except in the single case of the coroner’s inquest. The justice of the peace was at first little more than a constable on a large scale, whose power even to issue a warrant for the apprehension of suspected persons was acquired by practice, and was not derived from express parliamentary authority. In early times the formal accusation was often, perhaps usually, the first step in the procedure, and the prisoner was not arrested until after he had been indicted. This may still occur under the existing law, but such an occurrence is not usual. In almost every case in the present day a suspected person appears before a justice. Witnesses are then examined, he is either discharged, bailed, or imprisoned till trial, and is then indicted and tried.
The earliest instance that occurs of any sort of preliminary inquiry into crimes with a view to subsequent proceedings is the case of the coroner’s inquest. Coroners, according to 2 Mr. Stubbs, originated in the year 1194, but the first authority of importance about their duties is to be found in Bracton. 3 He gives an account of their duties so full as to imply that in his day their office was comparatively modern. The Statute de Officio Coronatoris (4 Edw. 1, st. 2, ad 1276) is almost a transcript of the passage in Bracton. It gives the coroner’s duty very fully, and is to this day the foundation of the law on the subject. The following are its main provisions:—“A coroner of our Lord the King ought to inquire of these things if he be certified by the King’s bailiffs or other honest men of the country; first he shall go to the places where any be slain, or suddenly dead, or wounded, or where houses are broken, or where treasure is said to be found, and shall forthwith command four of the next towns, or five, or six [i. e. the reeve and four men from each] to appear before him in such a place: when they are come thither the coroner upon the oath of them shall inquire in this manner, that is, to wit, if they know where the person was slain, whether it was in any house, field, bed, tavern, or company, and who were there. Likewise it is to be inquired who were culpable either of the act or of the force, and who were present, either men or women, and of what age soever they be, if they can speak or have any discretion, and how many soever be found culpable in any of the manners aforesaid, they shall be taken and delivered to the sheriff, and shall be committed to the gaol.”
If any one is found guilty of the murder, the coroner is immediately to value his property 1 “as if it were to be immediately sold,” and is to deliver it to the township which is to answer for it to the justices.
The statute contains important provisions as to appeals which I pass over for the present. It is silent as to the course to be taken where houses are broken, though the opening words of the statute refer to such cases. In practice the coroner’s duties have been confined to cases of suspicious death and treasure trove.
The coroner’s duties in respect of inquiries into the cause of suspicious deaths have hardly varied at all from the days of Edward I. to our own, except as regards the method of summoning jurors, and witnesses, and other details. The statute book contains a variety of provisions as to matters of secondary importance connected with inquests. The only ones which need here be mentioned are the statute of Philip and Mary (1 & 2 Phil. & Mary, c. 13, s. 5, 1554), which required a coroner to “put in writing the effect of the evidence given before him being material,” and to bind over the witnesses to appear at the trial of the person accused. This act remained in force till 1826, when it was superseded by 7 Geo. 4, c. 64, s. 4, which provides that every coroner upon any inquisition before him taken whereby any one is indicted for manslaughter or murder, or as an accessory to murder before the fact, shall put in writing the evidence given to the jury before him, or as much thereof as shall be material, and shall have authority to bind over the witnesses to give evidence at the trial, and certify and return the depositions and inquisition to the court before which the person indicted is to be tried. The inquisition of the coroner always was and still is a formal accusation of any person found by it to have committed murder or manslaughter, or to have found and concealed treasure, and a person may be tried upon such an inquisition without any further accusation.
It is singular that, with the law as to coroners in full operation since 1276, no duties of the same sort should have been imposed on the justices of the peace appointed forty-eight years afterwards, in 1324.
Whatever may have been the reason, the fact is certain that no allusion is made to the holding of any sort of preliminary inquiry by justices in any statute passed before the statutes of Philip and Mary already casually referred to. It is probable, however, that from the very earliest times magistrates would make a more or less formal inquiry before they took steps towards the arrest or bail of a suspected person, and it is not at all improbable that the two statutes in question may have given legal sanction to a practice which had grown up without express statutory authority. The statutes were as follows. By the 1 & 2 Phil. & Mary, c. 13 (1554), it is enacted that, when any person arrested for manslaughter or felony, or suspicion of manslaughter or felony, being bailable by the law, is brought before any two justices, they are “to take the examination of the said prisoner and information of them that bring him of the fact and circumstances thereof, and the same or as much thereof as shall be material to prove the felony shall be put in writing before they make the bailment.” The examination and bailment are to be certified to the court, and “all such as do declare anything material to prove the said murder” (murder is not mentioned in the earlier part of the act), “manslaughter, offences, or felonies, or to be accessory or accessories to the same as is aforesaid” (it is remarkable that the word “witnesses” is not used) “are to be bound over to appear to give evidence at the court of gaol delivery.” This act was confined to the case of prisoners admitted to bail. It was followed in the next year (1555) by an act (2 & 3 Phil. & Mary, c. 10), which recites that it “does not extend to such prisoners as shall be brought before any justice of peace for manslaughter or felony, and by such justices shall be committed to ward for the suspicion of such manslaughter or felony and not bailed, in which case the examination of such prisoner and of such as shall bring him is as necessary or rather more than where such prisoner shall be let to bail.” The act then goes on to reenact, with respect to cases in which the prisoners are committed, the provisions of the act of the preceding year as to prisoners bailed.1
These statutes continued to be in force till the year 1826, when they were repealed, and re-enacted, and extended to misdemeanour by 7 Geo. 4, c. 64, ss. 2 & 3, and this act was in its turn repealed and re-enacted in a more elaborate form, with some important variations, by 11 & 12 Vic. c. 42 (1848), which is known as Sir John Jervis’s Act.
The important provisions of Sir John Jervis’s Act upon the subject of the preliminary inquiry are these. 2 The witnesses are to be examined in the presence of the accused person, and he is to be at liberty to cross-examine them. The depositions are to be written down and signed by the magistrate and by the witnesses. After all the witnesses have been examined, the justice is to say to the accused, “Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence against you at your trial.” Whatever he says is then taken down and returned with the depositions. 1 The accused person is then to be asked whether he wishes to call any witnesses, and if he does, they must be examined and cross-examined, and their depositions must be taken in the same manner as those of the witnesses for the prosecution. 2 If the evidence is in the opinion of the justices not sufficient to put the accused person on his trial, they are to discharge him. If they think it “raises a strong or probable presumption of” his “guilt,” they are to commit him for trial or admit him to bail. 3 The accused is entitled to copies of the depositions, and his right to be represented by counsel or by a solicitor is incidentally assumed in 4 one section of the act, and is, I believe, never disputed in practice.
A comparison of these provisions with those of the acts of Philip and Mary shows several changes of the utmost importance in one of the most important parts of criminal procedure.
Speaking generally, the difference between the procedure established in the sixteenth century and the procedure of the nineteenth is that under the first the magistrate acts the part of a public prosecutor, whereas under the second he occupies the position of a preliminary judge. This appears in every detail. Under the acts of Philip and Mary the accused person is to be examined. This meant that he was to be fully questioned as to all the circumstances connected with his supposed offence. Under the act of Victoria he can be asked no questions at all, though he is invited to make any statement he pleases, being cautioned that it will be taken down and may be given in evidence against him. Under the statutes of Philip and Mary the examination of the witnesses and the recording of their depositions was intended only for the information of the court. The prisoner had no right to be, and probably never was, present. Under the statute of Victoria the witnesses are to be examined in the prisoner’s presence, and may be cross-examined by him, his counsel, or his attorney. Under the statute of Philip and Mary the depositions were to be returned to the court, but there is evidence to show that the prisoner was not allowed even to see them. Under the statute of Victoria he is entitled to a copy of them. In all these particulars the change is uniformly in the same direction. The object of the earlier statute is to expose and detect a man assumed to be guilty. In the later statute, the object is a full inquiry into his guilt or innocence.
One circumstance must here be mentioned, which makes a distinction of considerable importance between the preliminary criminal procedure of our own country and that of all the countries which used the civil law. I refer to the absence of the use of torture as a means of collecting evidence whilst the prisoner was in custody. It was never recognised as a part of the law of England, and its illegality was made the subject of much boasting by some of the earliest panegyrists of English institutions, and in particular Fortescue, Smith, and Coke. There is, however, proof that it was practised for the purpose of obtaining evidence under Henry VIII. and his three children, and also during the reigns of James I. and Charles I., and that not only in political cases but also in the case of common crimes. The proof of this is given in Jardine’s Reading on Torture, in the appendix to which work there are printed fifty-five letters taken from the Council books, the first dated 5th November, 1551, and the last 21st May, 1640, authorising or otherwise relating to the use or the threat of torture in a variety of instances. In how many cases it may have been used without such authority, and when the practice began, no one can now even guess with any plausibility. Why torture was not employed in this as well as in other countries it is difficult to say. Probably the extremely summary character of our early methods of trial, and the excessive severity of the punishments inflicted, had more to do with the matter than the generalities of Magna Charta or any special humanity of feeling. People who, with no sort of hesitation, hanged a man who could not read, or who being able to read had married a widow, simply because twelve of his neighbours, reporting the village gossip, said he had stolen a dress worth two shillings, cannot be called scrupulously humane. If their conscience had declined to hang him till they had tortured him into a confession capable of being verified independently, they would perhaps have been a little more humane, though this certainly admits of a doubt.1
However this may be, it is still possible to give evidence of the manner in which the old system of preliminary investigations worked. In several of the trials reported under the Stuarts, the justice who had got up the case was the principal witness against the prisoner, and detailed at length the steps which he had taken to apprehend him. The following are instances:—
2 In 1664 Colonel Turner was tried for a burglary, together with his wife and three of his sons. The principal witness was Sir Thomas Aleyn, an alderman of the city. He said: “Mr. Francis Tryon” (the person robbed) “put me on the business to examine it. I went and examined the two servants—the man and the maid. Upon their examination I found they had supped abroad at a dancing-school and had been at cards.” . . . “The man confessed he had been abroad twenty or thirty times at Colonel Turner’s house at supper about a year since. The maid denied they had been there at all; but it is true the man’s saying he supped there (though it was false) was the first occasion of suspicion against Colonel Turner. When I had examined these two, I went to the examination of Turner, where he was all that day, where at night? He told me at several places and taverns, and in bed at nine of the clock, and was called out of his bed; but having myself some suspicion of him, I wished him to withdraw. I told Tryon that I believed, if he was not the thief, he knew where the things were.” Aleyn afterwards charged Turner; “but he denied it, but not as a person of his spirit, which gave me some cause of further suspicion.” He afterwards searched Turner’s house unsuccessfully; but next day received information from one of the other aldermen which enabled him to track Turner into a shop in the Minories, where he found him in possession of money which he believed to be part of the stolen property. He pressed him to account for it, took him to Tryon, managed matters so as to induce him to admit to Tryon, upon Tryon’s engaging not to prosecute, that he knew where the property was, and, after all sorts of manœuvres, got him to cause his wife to give up a number of Tryon’s jewels, and finally committed him and her to Newgate. In short, he acted throughout the part of an exceedingly zealous and by no means scrupulous detective armed with the authority of a magistrate. 1 He detailed in court the whole of his proceedings, which were very expeditious. “Thursday,” said one of the judges, “was the robbery, Friday he was examined, Saturday the money was brought, and that night the jewels were brought and he committed.”
In the famous case of 2 Count Coningsmark and his alleged agents, who were tried for the murder of Mr. Thynne, a similar part was taken by Sir John Reresby, the committing magistrate. Just as he was going to bed, “Mr. Thynne’s gentleman came to me to grant a hue and cry, and soon after the Duke of Monmouth’s page to desire me to come to his master at Mr. Thynne’s lodging, sending his coach to fetch me.” Reresby immediately went to Mr. Thynne’s and granted warrants to search for several suspected persons. At last a Swede was brought before him who confessed that he served a German captain who had had a quarrel with Thynne. Upon information obtained from the Swede, “having searched several houses till six o’clock in the morning, having been in chase almost the whole night, I personally took the captain at the house of a Swedish doctor in Leicester Fields, I going first into the room.” Other suspected persons being afterwards arrested were brought to this house and 3 examined, and finally were committed for trial to the Old Bailey, after being examined on several occasions before the King in Council.
Other cases are mentioned in Reresby’s memoirs in which he took a similar part. 1 For instance, under the date of 6th of July, 1683, after referring to the Rye House Plot, he says: “Six Scotchmen being stopped at Ferry Bridge, by directions from the Secretary, coming from London towards Scotland, and being but slightly examined by the justice of the peace, I caused them to confess much more to me, which I transmitted to the Secretary, as also the examination of another of that nation, who was sent to York Castle, and proved a very dangerous rogue.”
2 In 1681, George Busby was tried at Derby assizes for being a Popish priest. The chief witness against him was Mr. Gilbert, a magistrate of the county, who gave a long account of the manner in which he went on several occasions to the house where he suspected Busby to be. On one occasion he took “a crimson damask vestment, wherein was packed a stole, a maniple of the same (as the Papists call them), an altar-stone, surplice, and a box of wafers, mass books, and divers other Popish things.” All these he took to Derby assizes and showed them to the judge, who directed them to be burnt, but Mr. Gilbert “entreated his favour that I might send them again to the same place for two or three days to make the priest more confident.” He went back accordingly and made a most elaborate search, having a singular series of conversations with people in the house, till at last he took the prisoner in a curiously contrived hiding-hole, near some chimneys, and carried him to Derby, “where after I had taken his examination, I made a mittimus and committed him to Derby gaol.”
I do not think any part of the old procedure operated more harshly upon prisoners than the summary and secret way in which justices of the peace, acting frequently the part of detective officers, took their examinations and committed them for trial. It was a constant and most natural and reasonable topic of complaint by the prisoners who were tried for the Popish Plot that they had been taken without warning, kept close prisoners from the time of their arrest, and kept in ignorance of the evidence against them till the very moment when they were brought into court to be tried.
This is set in a strong light by the provisions of the celebrated act “for regulating of trials in cases of treason and misprision of treason” (7 & 8 Will. 3, c. 3), and those of 1 s. 14 of the Act of Union with Scotland (7 Anne, c. 21). The first of these acts provides that every person accused of high-treason shall have a true copy of the whole indictment delivered to him five days at least before he is tried. The second extends the time for the delivery of the copy of the indictment to ten days before the trial, and enacts that at the same time that the copy of the indictment is delivered a list of the witnesses that shall be produced on the trial for proving the said indictment, and of the jury, mentioning the names, professions, and place of abode of the said witnesses and jurors, be also given.” This was considered as an extraordinary effort of liberality. It proves, in fact, that even at the beginning of the eighteenth century, and after the experience of the state trials held under the Stuarts, it did not occur to the legislature that, if a man is to be tried for his life, he ought to know beforehand what the evidence against him is, and that it did appear to them that to let him know even what were the names of the witnesses was so great a favour that it ought to be reserved for people accused of a crime for which legislators themselves or their friends and connections were likely to be prosecuted. It was a matter of direct personal interest to many members of parliament that trials for political offences should not be grossly unfair, but they were comparatively indifferent as to the fate of people accused of sheep-stealing, or burglary, or murder.
It is probable, however, that the practice of the magistrates varied, and that where there was no particular reason, political or otherwise, for keeping a prisoner in the dark, he was allowed, during the interval between the commitment and trial, to see his friends and make such preparation for his trial as he could. In some remarks 2 by Sir John Hawles (Solicitor-General in the reign of William III.), on the trial of Colledge, the Protestant joiner, it is said that in murder and all other crimes, the prisoner is always permitted to advise with counsel before his trial, and that all persons are allowed in such cases to have free and private access to him, and the usage followed in the political trials of the seventeenth century is strongly reflected upon. This irregular and unsystematic good nature may have been sufficient in practice to prevent the infliction of gross injustice upon persons capable of making their complaints heard, but till the year 1849 prisoners certainly had no legal right to know beforehand what evidence was to be given against them. I will give a single illustration of this, and in giving it, I may observe that it is not so easy as it might be expected to be, to discover accounts of routine proceedings which are not recorded, and do not become the subjects of judicial decision, though they are more important than many others of which this cannot be said.
John Thurtell was tried on the 1 6th and 7th Jan., 1824, and executed on the 9th, for the murder of William Weare, on the 24th Oct., 1823. In the Times newspaper, Oct. 31, 1823, there is a statement that the magistrates’ investigation commenced at 10.30 p. m. “The prisoners were not brought into the room, it being thought best to keep them ignorant of the entire evidence against them, at least for a short time.” Thurtell was then called in and asked many questions by Mr. Noel, the solicitor for the prosecution. Hunt (Thurtell’s accomplice) was afterwards separately examined, which led to his making a full confession. The examinations taken before the magistrates were published in the newspapers, and 2 Mr. Justice J. A. Park made the following observations upon the subject in his charge to the grand jury:—
“These depositions he understood (for he repeated he knew nothing of the fact himself) had already appeared very copiously and even with notes and comments in the public press. Now it appeared to him that the first fault (and he had no doubt it was most unintended, and in noticing it he did not mean to wound the feelings of any individual)—it appeared to him that the first fault originated with the magistrates in allowing any persons to enter into their private apartments for the purpose of taking notes of their proceedings. He held there was a vast difference between the inquisitorial and the judicial power of the magistrates; where the magistrate was acting judicially his conduct was as open to the inspection and judgment of the public as that of himself and that of his learned brothers on the bench; to such publicity he had no objection, for he could wish everything he said as a judge to be heard and fairly canvassed by the public. 1 He knew he erred sometimes, because he was human, and nothing that was human could escape without error. But when a magistrate was acting inquisitorially, when he was taking an inquisition for blood, were these proceedings fit to be known and published to the world? He was bound to investigate and inquire—ought his inquiries and investigations to be conducted in a private or public manner? The statute law of the land prescribed the course to be pursued upon such an occasion for more than 200 years” (269 years). “There was a statute of Philip and Mary which stated that depositions before magistrates should be taken in writing in order that they might be transmitted to the judges who were to try the offence under the commission of oyer and terminer for the county. He appealed to the experience of every gentleman who heard him, and he knew what his own experience as judge had taught him, whether the constant course was not to transmit them to the judge, taking care that the accused should not have an opportunity of seeing them. The prosecutor or his solicitor might have access to them, but not the party accused. For what would be the consequence if the latter had access to them? Why, that he would know everything which was to be produced in evidence against him —an advantage which it was never intended should be extended towards him.”
The first alteration made in this state of things was effected in 1836 by the Prisoners’ Counsel Act (6 & 7 Will. 4, c. 114, s. 4), which provided that all persons under trial should at their trial have a right to inspect all depositions taken against them. In 1849, by 11 & 12 Vic. c. 42, s. 27, it was provided that the accused should be entitled to a copy of the depositions. This change was probably due to a growing sense of the unfairness of the law. Probably, too, the establishment of a regular police force by the steps already detailed may have put the magistrates in a new position in fact before the change was embodied in the statute law. As a regular force was established, first in the towns and then in the country by which charges of crime were investigated, however imperfectly, the magistrates would naturally assume a more and more judicial position. The inquiry before the magistrates is now essentially judicial. It may indeed admit of a doubt whether it is not too judicial, and whether it does not tend to become a separate trial. This tendency was certainly encouraged by the power given by 30 & 31 Vic. c. 35, to the prisoner to call witnesses before the magistrates, and to have them bound over to appear at the trial and to have their expenses allowed. The power was conceded because it was thought hard that a man should be prevented by poverty from producing witnesses. This may have been a good reason for the act, and it has had some collateral advantages, but it has made the law more elaborate than it was.
In the course of the last century a change has taken place in the position of magistrates parallel to and closely connected with the change in the position of constables.
The management of local public business of all kinds, and especially of that part of it which consists in the administration of justice, has happily been at all times, as it still continues to be, a matter of honourable ambition and interest to large numbers of persons well qualified for the purpose by education and social standing. No one, however, can be expected to devote the whole of his time to the duties of a magistrate unless he is paid for it, and in places where the population is very dense, there is so much business that it cannot be efficiently done except by persons who give their whole time to it. Moreover, as the law becomes more and more elaborate, and the standard of judicial proof rises, special knowledge is continually becoming more and more necessary for the proper discharge of the duties of a magistrate.
The force of these considerations has been recognised by slow degrees, and so strong are the attractions of the voluntary system, that up to this time the magistrates are unpaid in nearly all the counties, and in most of the cities and boroughs. But a different system has been introduced in the metropolitan district, and in some other parts of the country, by the following steps.
Throughout a great part of the eighteenth century the business of magistrates in that part of London which was not included in the City was carried on by magistrates who were paid almost entirely by fees. What the fees precisely were, and by what law their exaction was justified, I am not able to say, nor is it worth while to inquire. One or two curious memorials of the state of things which then existed will be worth mentioning by way of introduction to the later legislation on the subject.
Writing in 1754,1 Henry Fielding says of his career as a magistrate: “By composing instead of inflaming the quarrels of porters and beggars (which I blush when I say has not been universally practised), and by refusing to take a shilling from a man who most undoubtedly would not have had another left, I reduced an income of about £500 a year of the dirtiest money upon earth to little more than £300, a considerable proportion of which remained with my clerk; and indeed, if the whole had done so, as it ought, he would be but ill paid for sitting almost sixteen hours in the twenty-four in the most unwholesome as well as nauseous air in the universe, and which hath in his case corrupted a good constitution without contaminating his morals.”
He observes in a footnote: “A predecessor of mine used to boast that he made £1,000 a year in his office, 1 but how he did this (if indeed he did it) is to me a secret. His clerk, now mine, told me I had more business than he had ever known there; I am sure I had as much as any man could do. The truth is, the fees are so very low when any are due, and so much is done for nothing, that, if a single justice of peace had business enough to employ twenty clerks, neither he nor they would get much by their labour. The public will not therefore think I betray a secret when I inform them that I received from the government a yearly pension out of the public service money.”
He afterwards says that he resigned the office to 2 his brother, who had always been his assistant. It was by a rare accident indeed that such a man as Fielding found himself in such a position. Men of genius are exceptions everywhere, but a magistrate ought at least to be, as in these days he is, a gentleman and a man of honour. It was not so in the last century in London. 3 A characteristic account of the “trading justices” was given to the Committee of 1816, by Townsend, a well-known Bow Street runner, who at that time had been in the police thirty-four years or more, i. e. since 1782: “At that time before the Police Bill took place at all, it was a trading business; and there was Justice This and Justice That. Justice Welch in Litchfield Street was a great man in those days, and old Justice Hyde, and Justice Girdler, and Justice Blackborough, a trading justice at Clerkenwell Green, and an old ironmonger. The plan used to be to issue out warrants and take up all the poor devils in the street, and then there was the bailing of them, 2s. 4d., which the magistrates had; and taking up 100 girls, that would make, at 2s. 4d., £11 13s. 4d. They sent none to gaol, the bailing them was so much better.”
These scandals led to the statute, 32 Geo. 3, c. 53, which authorised the establishment of seven public offices in Middlesex and one in Surrey, to each of which three justices were attached. The fees were to be paid to a receiver. No other Middlesex or Surrey justices were to be allowed, under heavy penalties, to take fees within the jurisdiction of the new magistrates. The justices were to be paid by a salary of £400 apiece.
This experiment proved highly successful.
The general result is that the business of holding the preliminary inquiry and committing or bailing the prisoner is, in the metropolitan district and in many large towns and populous districts, in the hands of trained lawyers, who act as preliminary judges; that in municipal boroughs it is in the hands of the mayor, an elected officer, and a number of other justices nominated by the Crown, but unpaid; that in the City of London it is vested by charter in the Mayor and Aldermen; in boroughs not under the Municipal Act in a variety of officers appointed under the provisions of charters and private acts; and that in the rest of the country it is in the hands of the local gentry, appointed by the Crown and exercising their office gratuitously.
Discharge,1Bail or Committal
The next step to the preliminary inquiry held by the magistrates is the discharge, bail, or committal of the suspected person. Little need be said of the law as to the discharge or committal of the suspected person. It is obvious that, as soon as justices of the peace were erected into intermediate judges, charged to decide the question whether there was or was not ground for the detention of a suspected person, they must have acquired, on the one hand, the power of discharge, and, on the other, the power of committal. The whole object of the preliminary inquiry was to lead to the one or the other result, and the history of the preliminary inquiry is in fact the history of the steps which led to the determination of this question in a judicial manner. The law of bail has a separate independent history.
The right to be bailed in certain cases is as old as the law of England itself, and is explicitly recognised by our earliest writers. When the administration of justice was in its infancy, arrest meant imprisonment without preliminary inquiry till the sheriff held his tourn at least, and, in more serious cases, till the arrival of the justices, which might be delayed for years, and it was therefore a matter of the utmost importance to be able to obtain a provisional release from custody. The right is recognised in curt and general terms by Glanville. 1 He says: “Cum quis itaque de morte regis vel de seditione exercitus infamatur aut certus apparet accusator aut non. Si nullus appareat certus accusator sed fama solummodo publica accusat; tunc ab initio salvo accusatus attachiabitur vel per plegios idoneos, vel per carceris inclusionem.” If there is a determinate accuser—is qui accusatur ut prædiximus per plegios salvos et securos solet attachiari aut si plegios non habuerit in carcerem detrudi. In omnibus autem placitis de feloniâ solet accusatus per plegios dimitti præterquam in placito de homicidio ubi ad terrorem aliter statutum est.” 2 Bracton refers to bail in many places, but the most general passage in his treatise De Corona which I have noticed 3 is to the effect that the sheriff ought to exercise a discretion in regard to bailing accused persons, having regard to the importance of the charge, the character of the person, and the gravity of the evidence against him.
These very ancient authorities are somewhat general in their language, but it is still possible to trace the history of the law relating to bail from the beginning of the reign of Edward I. to our own days.
The sheriff was the local representative of the Crown, and in particular he was at the head of all the executive part of the administration of criminal justice. In that capacity he, as I have already shown, arrested and imprisoned suspected persons, and, if he thought proper, admitted them to bail. The discretionary power of the sheriff was ill defined, and led to great abuses, which were dealt with by the Statute of Westminster the First (3 Edw. 1, c. 12, ad 1275). This statute was for 550 years the main foundation of the law of bail. It recites that sheriffs and others “have taken and kept in prison persons detected of felony, and incontinent have let out by replevin such as were not replevisable, and have kept in prison such as were replevisable because they would gain of the one party and grieve the other.” It also recites, that before this time it was not determined which persons “were replevisable and which not, but only those that were taken for the death of man1 or by commandment of the king, or of his justices, or for the forest.” It then proceeds to enact that certain prisoners shall not be replevisable either “by the common writ or without writ;” that others shall be let out by sufficient surety, whereof the sheriff will be answerable, and that without giving ought of their goods.”
The persons not to be bailed (apparently in addition to the four classes referred to in the recital) are (1) prisoners outlawed; (2) men who had abjured the realm (and so admitted their guilt); (3) approvers (who had confessed); (4) such as be taken with the manour; (5) those which have broken the king’s prison; (6) thieves openly defamed and known, and such as are appealed (accused) by approvers; (7) such as are taken for felonious arson; (8) or for false money; (9) or for counterfeiting the king’s seal; (10) or persons excommunicate taken at the request of the bishop; (11) or for manifest offences; (12) or for treason touching the king himself. On the other hand, the persons to be bailed are (1) persons indicted of larceny by inquests taken before sheriffs or bailiffs by their office, i. e. at sheriffs’ tourns or courts leet; (2) or of light suspicion (I suppose wherever indicted); (3) or for petty larceny that amounteth not above the value of 12d. if they were not guilty of some other larceny aforetime; (4) guilty of receipt of felons, or of commandment, or of force, or of aid in felony done (i. e. accessories before or after a felony); (5) guilty of some other trespass for which one ought not to lose life nor member, i. e. misdemeanours in general; (6) a man appealed by a prover after the death of the prover (if he be no common thief nor defamed). The statute does not say distinctly whether persons arrested on suspicion (for instance by hue and cry) were to be bailed or not. It applies to persons 1 “rettes” (which is translated “detected”) of felony, as having been wrongfully let out by the sheriffs. Whether the word implied that the prisoner had been indicted, or whether it meant only in a general sense charged, or whether its use invested the sheriffs with a discretion, I cannot say.
The way in which the later statutes are framed seems to favour the supposition that the justices at all events could in the first instance admit to bail only persons indicted before them in their sessions. However this may have been, the Statute of Westminster determined what offences were bailable or not for five centuries and a-half.
Between 1275 and 1444, however, the sheriffs’ powers had been to a great extent transferred to the justices of the peace in whom the power of admitting prisoners to bail was vested by a series of statutes.
2 These statutes assume that the question who is bailable and who not is settled by the statute of Edward I. though there are some inconsistencies between them, especially as to bail in cases of homicide, to which I need not refer. 3 Numerous statutes, relating to particular offences, were passed in the seventeenth and eighteenth centuries but no general provision on the subject was made till 1826, when the statute of 7 Geo. 4, c. 64, was passed, being one of the first attempts to consolidate the criminal law. It repealed all the statutes above referred to, so far as they relate to bail, and made other provisions on the subject which were in their turn superseded by those of 11 & 12 Vic. c. 42, s. 23, which are now in force.
Such is the history of the existing state of the law as to the bailing by justices of persons accused or suspected of crimes, but in order to make the history complete, it is necessary to mention shortly a branch of law which has become obsolete. In our own time there is practically no reason to fear that justices under a legal duty to admit a man to bail will refuse to do so. It was otherwise with the sheriffs of earlier times. Not only did the vagueness of the law itself leave a wide and ill-defined discretion in their hands, but their power was so great that even in plain cases they were often disposed to set it at defiance. Hence royal writs requiring them to do their duty were necessary; and of these there were several, the most important of which were the writ de homine replegiando, the writ de manucaptione, and the writ de odio et atiâ. These writs issued out of the chancery to the sheriff or coroner. If the first writ was not obeyed, a second writ, which was called an “alias,” was issued, and if that was not obeyed, a third, called a “pluries.” The final remedy was an attachment under which the sheriff or other officer was imprisoned for his disobedience. He might be fined for delaying till an “alias” and “pluries” issued. 1 The writ de homine replegiando was confined (at least after 3 Edw. 1) to cases in which a person was imprisoned before trial for an offence bailable under the Statute of Bail (3 Edw. 1), though it also applied to cases in which a person was unlawfully detained by any one not having legal authority to detain him. In such cases the sheriff might return that the person detained had been “eloigned” (elongatus, carried to a distance where he could not be found), and upon such a return a writ might issue requiring the sheriff to take the captor “in withernam,” that is, to imprison the captor till he produced the person so detained. The writ “de manucaptione” (of mainprise) was appropriated to cases in which a person had been taken on suspicion of felony and had tendered “manucaptors” or “mainpernors” who had been refused. The difference between bail and mainprise is long since obsolete. It is thus described by Hale: 1 “Bail and mainprise are used promiscuously oftentimes for the same thing, and indeed the words import much the same thing, for the former is traditus J. S. and the other is manucaptus per J. S. But yet in a proper and legal sense they differ. 1. Always mainprise is a recognizance in a sum certain, but bail is not always so. 2. He that is delivered per manucaptionem only is out of custody; but he that is bailed is in supposition of law still in custody, and the parties that take him to bail are in law his keepers, and may reseize him to bring him in.” The difference between the use of the two writs is described in 2 Hale, but is to me very obscure.
The writ de odio et3atiâ was confined to cases of homicide, and has an odd history, as it was in itself a singularly clumsy procedure. When a person was imprisoned on a charge of homicide, says4 Bracton, “Fieri solet inquisitio utrum hujusmodi imprisonati pro morte hominis culpabiles essent de morte illâ vel non, et utrum appellati essent odio vel atya.” If the person imprisoned was found guilty, he was not to be admitted to bail. If, however, the inquest said, “quod per odium et atyam, et contineatur causa in inquisitione quo odio vel qua atya diligenter erit causa examinanda, cum sint plures, 5 &c., et ballivi qui non sine causæ cognitione in hujusmodi inquisitionibus prætendunt non causam ut causam, et si sufficiens fuerit causa per ballium dimittatur.” This curious passage seems to imply that even in the infancy of our law questions arose as to malice similar to those which have given so much trouble in our own days. It obviously was not every sort of hatred or malice in the prosecutor which would entitle the prisoner to be bailed. The cause of it was to be considered. It is probable that the “causa” which was to be diligently examined was the evidence of the guilt of the accused man, and that “odium et atya” were mere legal figments by which the presence or absence of reasonable cause of suspicion was obscurely denoted. If a man hated another because he had been seen committing a murder, his hatred would be no reason why he should not prosecute the criminal. If the prosecutor was unable to assign any cause for the prosecution, it would not be unnatural to say that he must hate the person imprisoned. If there was evidence malice was immaterial. If there was no evidence malice was inferred. Hence, the sufficiency of the evidence, being the real point, was inquired into under pretence of inquiring into the malice. But, however this may have been, it is at all events clear that the effect of the writ was to cause a preliminary trial to take place in cases of homicide, the result of which determined whether the accused should be admitted to bail or imprisoned till he was finally tried. If he was found to have been accused by malice, he was admitted to bail on finding twelve sureties, 1 “qui manucapiant habendi eum ad primam assisam et coram justitiariis nostris ad respondendum de morte B.”
The writ de odio et atiâ is referred to in 2 Magna Charta. Foster is of opinion (upon grounds which to me seem just) that it was abolished by 6 Edw. 1, c. 9 (the Statute of Gloucester), in 1278. Coke says in one place that it was abolished by the general words of 28 Edw. 3, c. 9, and revived by 42 Edw. 3, c. 1, in which I think he was mistaken; elsewhere he contradicts this opinion, saying that it was abolished by the Statute of Gloucester. At all events it has been obsolete for centuries.3
These writs, which issued to the sheriff and the coroner, can never have been of the first importance, and must have gone into disuse at an early period (4 though there are a few instances of them in comparatively modern times), as from the earliest times 1 the superior courts and the lord chancellor had the right of issuing the writ of habeas corpus, which answered in a simpler and more direct way all the purposes of the other writs.
The subject of the present chapter is the history of the methods of accusation and trial which have prevailed in England. These are private and public accusations, and trial by battle, by ordeal, by jury, and by the Star Chamber and similar courts of which I have 2 already spoken.
Accusation by a Private Accuser—Appeals
Accusation and trial are so closely connected that for practical purposes they are most conveniently considered together.
Since the Norman Conquest there have been 3 three modes of trial in criminal cases, namely, trial by ordeal, trial by battle, and trial by jury; and there have been also three modes of accusation, namely, appeal or accusation by a private person, indictment or accusation by a grand jury, and informations which are accusations either by the Attorney-General or by the Master of the Crown Office.
The history of these modes of accusation and trial may be conveniently related under one head.
The history of appeals or accusations by a private person and trial by battle go together, as trial by battle was an incident of appeals.
The fact that the private vengeance of the person wronged by a crime was the principal source to which men trusted for the administration of criminal justice in early times is one of the most characteristic circumstances connected with English criminal law, and has had much to do with the development of what may perhaps be regarded as its principal distinctive peculiarity, namely, the degree to which a criminal trial resembles a private litigation. In very early times this showed itself in the circumstance that the law of appeals formed the most, or nearly the most, important and prominent part of the criminal law. An elaborate account of the procedure connected with them fills a large part of the book of Bracton, De Corona, and also a considerable part of the first book of Britton, which relates mainly to the same subject. Each of these authors, but particularly Bracton, goes into the subject with great minuteness, Bracton in particular having a separate chapter upon each different kind of appeal and mixing it up with definitions of the various offences as to which appeals might be brought, forms of writs to sheriffs, and much other matter which has now altogether lost its interest.
The following was the substance of the process according to which appeals might be made in cases of treason, homicide, breach of the peace and wounding (de pace et plagis), mayhem, breaches of the peace by false imprisonment, robbery, arson, and rape. The appeal was made before the coroner or before more coroners than one. The appellor was required to make a minute and strictly formal statement before the coroner as to the nature of the offence, 1 setting forth a great variety of particulars as to the time, place, and circumstances of the offence, in order that the appellee might be enabled to defend himself. This statement was enrolled by the coroner, and the appellor appears to have been held to it strictly in all subsequent stages of the proceedings. The next step was to secure the appearance of the appellee, the process for which was to publish the appeal at five successive county courts. If he did not appear at the fifth the consequence was outlawry. There were elaborate rules as to this, and as to the counter process of inlawry, by which the effect of outlawry was taken off, and the appellee was permitted to defend himself.
If the appellee appeared before the justices he might avail himself of any one of a great variety of pleas or exceptions, which are detailed at great length in Bracton. 1 He states the following as “ista generalis exceptio et prima”:—“Si secta non fuerit bene facta, quia qui appellare voluerit et bene sequi, debet ille, cui injuriatum erit, statim quam cito poterit hutesium levare, et cum hutesio ire ad villas vicinas et propinquiores et ibi manifestare scelera et injurias perpetratas.” There were, however, many other exceptions, one of which is introduced in the middle of the chapter without any special notice, but which must, if it really prevailed, have made appeals comparatively unimportant. 2 “Cadit appellum ubi appellans non loquitur de visu et auditu,” but there is reason to think that if this was the law in Bracton’s time it ceased to be so afterwards.
3 If the appellee did not plead, or not adequately, battle was waged between the parties, but the judges were bound, ex officio, to inquire (it is not clearly stated how) into the circumstances of the case, and not to allow the battle if the case was such that there were against the appellee 4 “presumptiones quæ probationem non admittunt in contrarium, ut si quis cum cultello sanguinolento captus fuerit super mortuum, vel a mortuo fugiendo, vel mortem cognoverit coram aliquibus qui recordum habeant, et hujusmodi tales.” If the appellee was defeated before the stars appeared he was hanged. If he was victorious or defended himself till the stars appeared he was acquitted of the appeal, 5 but inasmuch as the appeal was considered to raise a presumption of his guilt he was to be tried by the country as if he had been indicted.
There are some variations from this in 6 Britton’s Accountof Appeals, which was written about 1291, in the time of Edward I., and no doubt the practice must have varied, but it would not be worth while to go minutely into the subject. 1 In Hawkins’s Pleas of the Crown is to be found an elaborate account of the law as it stood when all but practically obsolete. I may however observe that the plea of want of fresh suit was taken away by the Statute of Gloucester (6 Edw. I., c. 9) in 1278, which allowed the appellor to sue within a year and a day.
The principal points in the history of appeals are as follows:—Appeals in cases of treason were properly (it seems) brought in Parliament. I have already given an account of them and of the manner in which they came to be abolished by statute, 1 Hen. 4, c. 14. That statute applies only to appeals of treason within the realm. Appeals for treasons done out of the realm were not affected by it, but were to be brought before the constable and marshal. 2 Such an appeal actually was brought by Lord Rea against David Ramsey in the year 1631, and combat was ordered upon it, but the king revoked his letters patent to the constable and marshal, and the matter came to an end.
Appeals in cases which were not capital, and in particular appeals for blows, for wounds, and false imprisonment, merged in actions of tort for damages for those causes. Appeals of mayhem lingered a little longer, but became obsolete.
Appeals of robbery and larceny lasted longer, because at Common Law the restitution of property feloniously taken could be awarded only when the thief or robber was convicted on an appeal, but this was altered by 21 Hen. 8, c. 11, which gave a writ of restitution to the true owner upon the conviction of the felon on an indictment.
Appeals of arson seem to have been discontinued at a very early time.
Of appeals of rape it is only necessary to say that they seem to have differed less than other appeals from indictments, and that the offence at which some early statutes on the subject were levelled seems to have included what we should describe as abduction with intent to marry as well as what we describe as rape.
Hence the only appeals which can be said to have had any definite history and to have formed a substantial part of the criminal procedure of the country were appeals of murder. It seems that appeals continued to be the common and established way of prosecuting murder till the end of the fifteenth century. Indeed, they were viewed with so much and, according to our notions, such strange and unmerited favour that in 1482 (22 Edw. 4) they were made the subject of an act of judicial legislation of an almost unexampled kind. 1 FitzHerbert has this note on the subject: “Note that all the justices of each bench say that it is their common opinion that, if a man is indicted of the death of a man, the person indicted shall not be arraigned within the year for the same felony at the king’s suit, and they advise all legal persons (touts hœs de ley) to execute this point as a law without variance, so that the suit of the party may be saved.” This resolution, in which the judges, openly and in the plainest words, assumed legislative power, was apparently acted upon to the great injury of the public, and it was found necessary six years afterwards to repeal it by statute. This appears from the recitals and provisions of 3 Hen. 7, c. 1, to which I have already referred in connection with the Court of Star Chamber. This act recites that “murders and slayings of the king’s subjects do daily increase, that the persons in towns where such murders fall to be done will not attach the murderer” as by law they ought, and that “it is used that within the year and a day after any death or murder had or done the felony should not be determined at the king’s suit for saving of the party’s suit” (the appeal), “wherein the party is oftentimes slow, and also agreed with, and by the end of the year all is forgotten, which is another occasion of murder. And also he that will sue any appeal must sue in proper person, which suit is long and costly that it maketh the party appellant weary to sue.” As a remedy it is provided that indictments for murder shall be tried at once, and that an acquittal on an indictment shall be no bar to an appeal.
The effect of this provision seems to have been that the indictment, which did not involve trial by battle, was usually tried first, and its result was practically conclusive, unless the prisoner was acquitted under circumstances which greatly dissatisfied the parties concerned. This state of things continued till the year 1819, though the resort to an appeal became less and less common as time went on. 1 There are, however, some specimens of appeals of murder reported in the State Trials,2 and an attempt to abolish them by statute was successfully resisted in the years 1768 and 1774. The last appeal of murder ever brought was the case of 3 Ashford v. Thornton. Thornton, being strongly suspected of having murdered Mary Ashford, was tried for that offence and acquitted at Warwick Assizes, and an appeal was brought by her brother. On the 2nd November, 1818, the appellant read his count (the equivalent of an indictment) in the Court of King’s Bench, charging Thornton with his sister’s murder. Thornton then pleaded, “Not guilty, and I am ready to defend the same with my body;” “and thereupon taking his glove off he threw it upon the floor of the court.” The appellant then counter-pleaded that Thornton ought not to be permitted to wage battle, because the circumstances (which are set out in detail in the counter-plea) were such as to show that he was guilty. The appellee replied, setting out circumstances which he regarded as establishing an alibi in his favour. To this there was a demurrer. Upon this issue was joined, and an argument took place, in which 4 all the authorities on the subject are reviewed. The Court decided that the result of the authorities was that the appellee had a right to wage his body, unless circumstances practically inconsistent with his innocence appeared, and that such did not appear from the matter put upon the pleadings to be the case. The result was that no further judgment was given, the appellant not being prepared to do battle. The proceedings ended by Thornton’s arraignment on the appeal, to which he pleaded autrefois acquit.
This proceeding led to the statute 59 Geo. 3, c. 46, by which all appeals in criminal cases were wholly abolished.
It is probable that the commonest and most important form of appeal was that of appeal by an approver. The nature of this proceeding was as follows:—1 If a person accused of any crime, but especially of robbery, chose to plead guilty and to offer to give up his accomplices he was handed over to the coroner, before whom he confessed his guilt and accused a certain number of other persons, and the king might “grant him life and limb if he would deliver the country from a certain number of malefactors either by his body” (i. e. by killing them upon battle waged) “or by the country” (i. e. convicting them before a jury), “or by flight.” If he failed to fulfil the conditions imposed on him he was hanged on his own confession. If the person accused was a man of good character, the conditions of the proceedings were made less favourable to the approver than they otherwise would have been.
If the approver fulfilled the stipulated condition and disposed of the prescribed number of accomplices he had to abjure the realm 2 “in regno remanere non poterit etiam si velit plegios invenire.”
Accusations by Public Report—Ordeals—Trial by Jury
I have already described the manner in which public accusations were made before the Conquest. I now come to the procedure subsequent to the Conquest.
Glanville mentions the subject very slightly. 1 In his short chapter on criminal proceedings he describes the procedure adopted in the case of each particular crime separately, but he seems in all cases to recognize the distinction between an accusation by a definite accuser and an accusation by public report alone.
The silence of Glanville upon this subject is, however, of the less importance, because we have still 2 the text of the Assize of Clarendon (1164) and that of the Assize of Northampton (1176), which constitute the legislation of Henry II. upon this subject. The Assize of Northampton was a republication of the Assize of Clarendon, with some alterations and additions intended to make the system established by it more rigorous. Its provisions are as follows:—“If any one is accused before the justices of our Lord the King of murder or theft or robbery, or of harbouring persons committing those crimes, or of forgery or of arson, by the oath of twelve knights of the hundred, or, if there are no knights, by the oath of twelve free and lawful men, and by the oath of four men from each township of the hundred, let him go to the ordeal of water, and if he fails let him lose one foot. And at Northampton it was added for greater strictness of justice” (pro rigore justitiæ) “that he shall lose his right hand at the same time with his foot, and abjure the realm, and exile himself from the realm within forty days. And if he is acquitted by the ordeal let him find pledges and remain in the kingdom unless he is accused of murder or other base felony by the body of the country and the lawful knights of the country; but if he is so accused as aforesaid, although he is acquitted by the ordeal of water, nevertheless he must leave the kingdom in forty days and take his chattels with him, subject to the rights of his lords, and he must abjure the kingdom at the mercy of our Lord the King. This assize is to apply from the time of the Assize of Clarendon to the present time, and from the present time as long as our Lord the King pleases in cases of murder and treason and arson, and in all the aforesaid matters, except small thefts and robberies done in the time of war, as of horses and oxen, and less matters.”
The system thus established is simple. The body of the country are the accusers. Their accusation is practically equivalent to a conviction subject to the chance of a favourable termination of the ordeal by water. If the ordeal fails, the accused person 1 loses his foot and his hand. If it succeeds, he is nevertheless to be banished. Accusation therefore was equivalent to banishment at least.
We have still some evidence as to the kind of cases in which the ordeal was inflicted. It is to be found in the Rotuli Curiæ Regis for the reigns of Richard I. and John, said by Sir F. Palgrave to be the oldest judicial records in existence. The following illustrations (amongst others) are published by Sir F. Palgrave in his 2Proofs and Illustrations.
“Roll of the Iter of Stafford in 5 John.—One Elena is suspected by the jurors because she was at the place where Reinalda de Henchenhe was killed, and because she was killed by her help and consent. She denies it. Let her purge herself by the judgment of fire; but as she is ill, let her be respited till she gets well.”
“Andrew of Bureweston is suspected by the jurors of the death of one Hervicus because he fled for his death, therefore let him purge himself by the judgment of water.”
“Roll of the Iter of Wiltshire, 10 Rich. 1.—The jurors say that Radulphus Parmentarius was found dead with his neck broken, and they suspect one Cristiana, who was formerly the wife of Ernaldus de Knabbewell, of his death, because Radulphus sued Cristiana in the ecclesiastical court for breach of a promise of marriage she had made to him, and after the death of her husband Ernaldus, Reginald, a clerk, frequented her and took her away from Radulphus, and Reginald and Cristiana hated Radulphus for suing her, and on account of that hatred the jurors suspect her and the clerk of his death. And the country says it suspects her. Therefore it is considered that the clerk and Cristiana appear on Friday, and that Cristiana purge herself by fire.”
It is impossible to say how long the system of ordeals lasted. In the Mirror there is a list of 155 abuses in the law of which the author complains. The 127th is—“It is an abuse that proofs and purgations be not by the miracle of God where other proof faileth.” 1 The Mirror was written in the reign of Edward I., so that it appears probable that ordeals fell into disuse in the course of the thirteenth century, 2 probably in consequence of the decrees of the Lateran Council of 1216.
The system of accusation which led up to, and to use a modern legal expression “sounded,” in ordeal, was the origin of the grand jury of later times, and of our own days. In my chapter on the History of the Criminal Courts. 3 I have given Bracton’s description of the justices’ eyre, as it existed in the time of Henry III., and have shown that the accusation of suspected persons was only one of its multifarious duties, which were of such magnitude and variety that they may properly be said at that time to have consisted of a general superintendence over all the local details of the executive government. By degrees the old system of convening something like a county parliament, in which every township was represented by its reeve and four men, fell into disuse, and the sheriffs fell into the habit of summoning only a sufficient number of probi et legales homines to form a grand jury and as many petty juries as might be needed for the trial of the civil and criminal cases to be disposed of. The law upon the subject of the number and qualifications of the men to be put upon the panels formerly was, and to some extent still is, singularly vague. In practice at the assizes the grand jury for counties is always composed of the county magistrates, whose names are called over by the officer of the court until twenty-three at most have appeared. The magistrates, however, have no special legal right or duty in the matter. Any “good and lawful men” of the county may serve, no special qualification being required, though there are some disqualifications.1 There is no historical interest in the enactments which have been made upon this subject. The grand jury to the present day accuses every person who is put on his trial before any court of criminal jurisdiction which tries prisoners by a jury.
In the earlier chapters I have given the history of each of the steps in the prosecution of criminals from the first moment when a person is suspected down to the final conclusion of the proceedings. I have, however, intentionally omitted all but the most cursory notice of the actual trial by which the guilt or innocence of the suspected person is determined. In attempting to relate its history I shall adopt a somewhat different method from that which I have hitherto followed. Instead of treating separately the history of the opening speech of the counsel for the Crown, the prisoner’s defence, the examination of the witnesses, and the judge’s summing up, I shall give an account of characteristic trials or groups of trials from the reign of Queen Mary, when the earliest trials of which we have detailed reports took place, till the reign of George III., when the system now in force was established in all its main features.
The first group of trials which I shall consider are those which took place between 1554 and 1637, the first being the trial of Sir Nicholas Throckmorton, and the last being the proceedings in the Star Chamber which led to its abolition. 1 The report of the trial of Throckmorton is the earliest which is full enough to throw much real light on the procedure which then prevailed. All the trials which took place during this period seem to have followed much the same course, and to have been conducted in the same manner.
The cases of which reports remain were, for the most part, of great political importance, and were accordingly, during the early stages of the procedure, under the charge not of the justices of the peace, but of the Privy Council, and especially of the judges who were members of it, and the law officers of the Crown. The suspected person, having been arrested, was kept in confinement more or less close according to circumstances, and was examined in some cases before the Privy Council, in some cases by the judges, and in some instances by torture. The evidence of other persons, and more especially the evidence of every one who was suspected of being an accomplice, was taken in the same manner. When the case was considered ripe for trial the prisoner was arraigned and the jury sworn, after which the trial began by the speeches of the counsel for the Crown. There were usually several counsel, who, in intricate cases, divided the different parts of the case between them. The prisoner, in nearly every instance, asked, as a favour, that he might not be overpowered by the eloquence of counsel denouncing him in a set speech, but, in consideration of the weakness of his memory, might be allowed to answer separately to the different matters which might be alleged against him. This was usually granted, and the result was, that the trial became a series of excited altercations between the prisoner and the different counsel opposed to him. Every statement of counsel operated as a question to the prisoner, and indeed they were constantly thrown into the form of questions, the prisoner either admitting or denying or explaining what was alleged against him. The result was that, during the period in question, the examination of the prisoner, which is at present scrupulously, and I think even pedantically, avoided, was the very essence of the trial, and his answers regulated the production of the evidence; the whole trial, in fact, was a long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other’s arguments with the utmost eagerness and closeness of reasoning. The judges occasionally took part in the discussion; but, in the main, the debate was between the parties. As the argument proceeded the counsel would frequently allege matters which the prisoner denied and called upon them to prove. The proof was usually given by reading depositions, confessions of accomplices, letters, and the like; and this occasioned frequent demands by the prisoner to have his “accusers,” i. e. the witnesses against him, brought before him face to face, though in many cases the prisoners appear to have been satisfied with the depositions. When the matter had been fully inquired into by this searching discussion, the presiding judge “repeated” or summed up to the jury the matters alleged against the prisoner, and the answers given by him; and the jury gave their verdict.
I will give an account of a few of the most remarkable trials as specimens.
Sir N. Throckmorton was tried for high treason in 1554, 1 the charge against him being that he compassed and imagined the Queen’s death, and levied war against her, and adhered to her enemies; the alleged fact on which the charge was founded being a conspiracy with Wyat before his rising.
The trial took place on the 17th April, 1554. 2 The Court sat probably from 8 a. m. till 2, or, at any rate, some time before 3 p. m., as at their rising they adjourned till 3, and the jury gave their verdict at 5. The trial would seem accordingly to have lasted altogether for about six hours. It consisted almost entirely of a verbal duel between Throckmorton and the counsel for the Crown, namely, Serjeant Stanford, who, I suppose, may have been the author of Stanford’s Pleas of the Crown, and Griffin, the Attorney-General. 1 Stanford took by far the most conspicuous part in the proceedings. He began by asking Throckmorton if he had not sent Winter to Wyat in Kent to confer about taking the Tower of London and about Wyat’s rising? Throckmorton said he had told Winter that Wyat wanted to speak to him; but that he said nothing on the matters stated, and challenged Stanford to prove what he alleged. Stanford read Winter’s “confession,” and offered to call Winter to swear to it. Throckmorton said that, for the sake of argument, he would admit the “confession” to be true, and pointed out that certain parts of it were highly favourable to him, and that no part of it showed anything criminal on his part. Some matters he explained in answers to questions from the judges and the Attorney-General.
Stanford then read the confession of Cuthbert Vaughan, which, if true, proved that Throckmorton had given Vaughan much information as to the designs of Wyat’s confederates. The Attorney-General offered to produce Vaughan to swear to his confession. To which Throckmorton replied, “He that hath said and lied will not, being in this case” (i. e., under sentence of death), “stick to swear and lie.” Vaughan, however, was called, swore to the truth of his confession, and, in answer to a question from Throckmorton, said he was only a common acquaintance, and that Wyat had given him a letter of introduction to Throckmorton. Upon this Throckmorton said, “If you have done with Vaughan, my lord, I pray you give me leave to answer.” The Chief Justice replied, “Speak, and be short.” Throckmorton thereupon insisted on the improbability of his placing so much confidence in a common acquaintance, and appealed to Sir R. Southwell (one of the Commissioners by whom he was tried, and before whom, as a Privy Councillor, Vaughan had been examined) to confirm him in saying that Vaughan had varied in his evidence, and in particular that he had vouched a witness who had not been examined and a document which had never been produced. He also insisted that Vaughan ought not to be believed, because his only hope of escape from his own sentence of death was to accuse some one else. The judges hereupon asked if he meant to say that Vaughan’s deposition was totally false. Thereupon Throckmorton admitted that much of it was true; but he denied the specially damaging parts of it, and explained a variety of matters which were specifically pointed out to him. Throckmorton’s own “confession” was then read by Stanford. It admitted in substance that he had discussed with several persons the scheme of the marriage between Queen Mary and Philip II., of which he and they strongly disapproved; but it went no further. A deposition of the Duke of Suffolk was next read, on which Throckmorton remarked that it stated only what the Duke said he had heard from his brother, Lord Thomas Grey, who “neither hath said, can say, nor will say anything against me.” Certain statements, very remotely connected with the subject, made by one Arnold, were then referred to. They mentioned a man named FitzWilliams. Throckmorton, seeing FitzWilliams in court, desired that he might be sworn as a witness. FitzWilliams offered himself to be sworn, but, upon the Attorney-General’s application, the Court refused to hear him, and ordered him out, one of the judges saying, “Peradventure you would not be so ready in a good cause.” Finally it was said that Wyat had “grievously accused” the prisoner, to which Throckmorton replied, “Whatsoever Wyat hath said of me in hope of his life, he unsaid it at his death.” One of the judges owned this, but added that Wyat said that all he had written and confessed to the Council was true. Throckmorton replied, “Master Wyat said not so. That was Master Doctor’s addition.” On this another Commissioner observed that Throckmorton had good intelligence. He answered, “God provided that revelation for me this day, since I came hither; for I have been in close prison these fifty-eight days, where I heard nothing but what the birds told me which did fly over my head,”—an assertion which was probably false. After this Throckmorton objected, that his case was not brought within 25 Edw. 3, as no overt act of compassing the Queen’s death was proved against him; but at the most, procurement by words only of levying war. The judges put various difficulties in his way, refusing to have the statutes read, and, 1 in at least one instance, misconstrucing their language grossly when Throckmorton quoted them. They held however, certainly in accordance with all later authorities, that in treason there are no accessories, all being principals. Nothing can exceed the energy, ingenuity, presence of mind, and vigour of memory which Throckmorton showed, or is reported to have shown, throughout every part of the case, and especially in the legal argument. The Attorney-General is reported to have appealed to the Court for protection. “I pray you, my lords that be the Queen’s Commissioners, suffer not the prisoner to use the Queen’s learned counsel thus. I was never interrupted thus in my life, nor I never knew any thus suffered to talk as this prisoner is suffered. Some of us will come no more to the bar, an we be thus handled.”
The Chief Justice summed up, “and,” says the reporter (who, no doubt, was very favourable to Throckmorton), “either for want of good memory or good will, the prisoner’s answers were in part not recited, whereupon the prisoner craved indifferency, and did help the judge’s old memory with his own recital.” After the summing up, Throckmorton made to the jury a short, earnest, pathetic address, full of texts. He begged the Court to order that no one, and in particular none “of the Queen’s learned counsel be suffered to repair to them.” Whereupon two serjeants were sworn to attend them for that purpose. After a deliberation of two hours the jury acquitted him. They were committed to prison for their verdict, and eight of them (four having submitted and apologised) were brought before the Star Chamber in October (six months and more after the trial), and discharged on the payment by way of fine of £220 apiece, and three, who were not worth so much, of £60 apiece. “This rigour was fatal to Sir John Throckmorton, who was found guilty upon the same evidence on which his brother had been acquitted.”
The next trial to which I will refer is that of 1 the Duke of Norfolk in 1571. He was tried for high treason by imagining the death and deposition of Queen Elizabeth; the overt act being an endeavour to marry Mary, Queen of Scots, knowing that she claimed title to the Crown as against Queen Elizabeth. He was also charged with being concerned in various other treasonable enterprises, which are set out at great length in the indictment. The case was tried before the Court of the Lord High Steward, consisting of twenty-six Lords Triers. The proceedings, though not so animated as those in Throckmorton’s case, followed much the same course. Serjeant Barham conducted the greater part of the prosecution. After opening the case, he urged the Duke to confess that he knew that Mary claimed the crown of England. He admitted that he knew it, “but with circumstance,” that is, subject to explanation. Barham contested the value of the explanation, and many depositions were read, on the bearing of which the Duke on the one side, and Barham on the other, argued, questioned each other, and exchanged explanations at great length. Here is a single specimen:—
“Serjeant: Now for the matter of taking the Tower. Duke: I deny it. Serjeant: Was it not mentioned unto you in the way when you came from Titchfield, by one that came to you and moved you a device between you and another for taking the Tower? Duke: I have confessed that such a motion was made to me, but I never assented to it. Serjeant: You concealed it; and to what end should you have taken the Tower but to have held it against the Queen by force?” &c.
After Barham had finished the part of the case which he was to manage, other charges were enforced in the same way by the Attorney-General, and others again by the Solicitor-General. After which “Mr. Wilbraham, the Attorney of the Wards,” made a speech ending with a burst of patriotic eloquence as to how under circumstances the English would have beaten certain Walloons. On this the reporter observes, “This point Mr. Attorney spoke with such a grace, such cheerfulness of heart and voice, as if he had been ready to be one at the doing of it, like a hearty true Englishman, a good Christian, a good subject, a man enough for his religion, prince, and country.” After this Wilbraham, like his leaders, had an argument at length with the prisoner, who was thus expected to deal successively with no less than four eminent counsel.
Some of the Duke’s observations throw much light on the position of a prisoner in those days. At one point he said, “There is too much for me to answer without book; for my memory is not so good to run through everything, as they do that have their books and notes lying before them. Therefore, I pray you, if I forget to answer to anything, remind me of it.” The Duke, like Throckmorton, argued with much reason that no overt act of compassing the Queen’s death had been proved against him, and quoted some authorities, and in particular Bracton. The Attorney-General was indignant at his audacity. “You complained of your close keeping that you had no books to provide for your answer: it seemeth you have had books and counsel; you allege books, statutes, and Bracton. I am sure the study of such books is not your profession.” The Duke humbly said, “I have been in trouble these two years; think you that in all this time I have not had cause to look for myself?” The Duke was convicted and executed.
Many other trials in Queen Elizabeth’s time were conducted in the same way. I may mention those of 1 Campion and other Jesuits in 1581, those of 2 Abington and others in 1586, that of 3 Lord Arundel in 1589, and a very remarkable one of 4 Udale, for felony in writing the libel called Martin Marprelate in 1590. In Udale’s case there was really no evidence, or hardly anything which could by courtesy be called evidence, except the fact that when examined before the Privy Council he would not deny having written the book; and that when the judge who tried him offered to direct an acquittal if he would only say he did not write it, he refused to do so.
Under James I. the character of the procedure remained unchanged, as may be seen by reference to the cases of 1 Raleigh in 1603, the trials for the 2 Gunpowder Plot in 1606, and those of 3 Overbury’s murderers in 1615. The trials of 4 Lord Somerset and 5 Sir Jervase Elwes are perhaps the best illustrations of the old procedure. Each affords a striking instance of the importance which then attached to the examination of the prisoner. 6 The argument between Lord Somerset and the different counsel and members of the court is exceedingly curious and minute, but its effect cannot be given shortly. Elwes, who was Lieutenant of the Tower, and had delivered the Countess of Somerset’s poisons to Overbury, defended himself on the ground that he did not know what they were, though he admitted that he knew that at one time one of the subordinate agents had thoughts of committing the crime. 7 He defended himself with so much energy and skill that he might perhaps have escaped had not Coke, the presiding judge, cross-examined him as to some expressions in his letters which he was unable to explain, 8 and (which is even more at variance with our modern views) produced against him, after his defence had been made, a “confession” by one Franklin, who had made the confession privately and not even upon oath before Coke himself, at five o’clock that morning, before the court sat. The “confession,” if true, no doubt proved Elwes’s guilt beyond all doubt, but put upon him as it was at the very last moment, when he had no opportunity to inquire about it, or even to cross-examine Franklin without inquiry, it is not surprising that “he knew not what to answer.” If Elwes’s dying speech is rightly reported, he confessed his guilt at the gallows, and, without making any complaint on the subject, ascribed its discovery to Coke. 9 “I displeased God, being transported with over-much pride of my pen; which obsequious quill of mine procured my just overthrow upon the knitting of my Lord Chief Justice’s speech at my arraignment, by reason of two or three passages at the bottom of my letter subscribed with my own hand, which I utterly had forgotten, because I felt not my sin.”
Of all the trials which I have mentioned, however, that of Raleigh is by far the most remarkable. He was accused of treason by conspiring with Lord Cobham to make Arabella Stuart Queen of England through the agency of the Archduke of Austria and his ambassador. The whole evidence against Raleigh was a “confession” or examination of Cobham before the Privy Council, and a letter which he wrote afterwards. Both in the confession and in the letter, Cobham charged Raleigh with this plot by obscure allusions and implications, and with no details. Some few trifling bits of hearsay were proved, I suppose by way of corroboration. For instance,1 Dyer, a pilot, swore that he accidentally met some one in Lisbon, who said that Cobham and Raleigh would cut King James’s throat before he could be crowned. The extreme weakness of the evidence was made up for by the rancorous ferocity of Coke, who reviled and insulted Raleigh in a manner never imitated, so far as I know, before or since in any English court of justice, except perhaps in those in which Jefferies presided.2 The trial is extremely curious, but its great interest in a legal point of view lies in the discussion which occupied most of it on Raleigh’s right to have Cobham called as a witness. He knew that Cobham had retracted his confession, and he had actually received from him a letter saying, “I protest upon my salvation I never practised with Spain by your procurement. God so comfort me in this my affliction as you are a good subject, for anything I know.” For these reasons, and also because as he said he felt sure that Cobham would not venture to state openly and on oath what he had confessed before the Council, Raleigh earnestly pressed for his production. He put his demand partly on two statutes of Edward VI. (1 Edw. 6, c. 12, s. 22, and 5 & 6 Edw. 6, c. 11, s. 11). The first act provides that no one is to be indicted, arraigned, or convicted of treason unless he be accused by two sufficient and lawful witnesses. The second act is to the same effect, but uses the words “lawful accusers,” which 1 Coke himself afterwards interpreted as meaning witnesses, “for other accusers have we none in the common law.” It also provides that the accusers shall, at the time of the arraignment, be brought in person before the accused. Of these statutes Coke declares that they were grounded on the common law, which “herein is grounded upon the law of God, expressed both in the Old and New Testament ‘in ore duorum vel trium testium,’ &c.” 2 In Raleigh’s trial, Coke insinuated that these statutes were no longer in force, and 3 Chief Justice Popham expressly said that they were repealed, adding, “It sufficeth now if there be proofs made either under hand or by testimony of witnesses, or by oaths.” As for having Cobham produced in court, Lord Salisbury (Robert Cecil) said that the commissioners ought to know from the judges whether Raleigh had a right to demand his production, or whether it was matter of favour? Upon this the following remarkable statements were made:—
4 “Lord Chief Justice: This thing cannot be granted, for then a number of treasons should flourish: the answer may be drawn by practice whilst he is in person. Justice Gawdy: The statute you speak of concerning two witnesses in case of treason is found to be inconvenient; therefore by another law it was taken away. Raleigh: The common trial of England is by jury and witnesses. Lord Chief Justice: No, by examination: if three conspire a treason and they all confess it, there is never a witness, yet they are condemned. Justice Warburton: I marvel, Sir Walter, that you, being of such experience and wit, should stand on this point: for so many horse-stealers may escape, if they may not be condemned without witnesses. If one should rush into the king’s privy chamber whilst he is alone and kill the king (which God forbid), and this man be met coming with his sword drawn all bloody, shall not he be condemned to death? My Lord Cobham hath perhaps been laboured in that, and to save you, his old friend, it may be that he will deny all that he hath said?”
The result was that Cobham was not produced, and that Raleigh was convicted and executed on the 29th October, 1618, just fifteen years after his trial.
I now pass from the proceedings before the Courts of Common Law to those which took place before the Star Chamber.
I have already given some account of the history and of the jurisdiction of that court. I will now notice some of the cases which led to its abolition. Its function as a criminal court was to try cases of misdemeanour which were not, or were supposed not to be, sufficiently recognised or punished at the common law. Its procedure was founded upon an information, generally by the Attorney-General, who drew up a charge like a Bill in Chancery against the defendant. The defendant put in his answer also in the form of an Answer in Chancery. He might be examined upon interrogatories, and was liable to be required to take what was called the ex officio oath. This was an oath in use in the Ecclesiastical Courts, by which the person who took it swore to make true answer to all such questions as should be demanded of him. The evidence of witnesses was given upon affidavit. When the case was ripe for hearing it came on for argument much in the way in which cases are argued in the Chancery Division of the High Court. The parties appeared by counsel; the information, answer, and depositions were read and commented upon; and finally each member of the court pronounced his opinion and gave his judgment separately—a point worth noticing because it stands in marked contrast to the practice of the modern Judicial Committee of the Privy Council, which in a certain sense represents the Star Chamber.
The Star Chamber proceedings reported in the State Trials leave a singular impression on my mind. As far as the mere management in court of the different cases went, it cannot be denied that they are for the most part calm and dignified, though the strange taste and violent passions of the time give them occasionally a grotesque appearance; but the severity of the “censures” or sentences is in these days astonishing. A few instances may be mentioned. In 1615 1 Sir John Hollis and Sir John Wentworth were prosecuted “for traducing the public justice.” Weston had been hanged for the murder of Sir Thomas Overbury, to whom he had administered poison. Wentworth and Hollis went to Weston’s execution, where Wentworth asked Weston whether he really did poison Overbury, and pressed him to answer, “saying he desired to know, that he might pray with him.” Hollis “was not so much of a questioner,” but, “like a kind of confessor, wished him to discharge his conscience and satisfy the world.” Hollis moreover, when the jury gave their verdict, said, “If he were on the jury, he would doubt what to do.” It is difficult to see how this could be regarded as in any sense criminal conduct; but it seems to have been thought that Wentworth’s question and Hollis’s remarks remotely implied that Weston’s guilt might perhaps be not absolutely certain, notwithstanding his conviction. Lord Bacon (then Attorney-General) developed this view of the subject at length, and with characteristic grace, calmness, and power. The defendants excused themselves in a polite manner; Sir John Hollis observing that “Mr. Attorney had so well applied his charge against him that, though he carried the seal of a good conscience with him, he would almost make him believe he was guilty.” As for what he had said to Weston, he was there “carried with a general desire which he had to be at the execution as he had done in many like cases before.” It was a common thing on such occasions to question the person about to be executed, and he had only followed his usual practice. Coke pronounced sentence. He referred to Abimelech, to cases of poisoning in the Year-books, as to which he remarked that “from Edward III. to 22 Henry VII. (which was a great lump of time) no mention is made of poisoning any man.” As to going to executions, he said that “ever since he was a scholar and had read those verses of 1 Ovid, Trist. iii. 5, ‘Ut lupus et vulpes instant morientibus et quæcumque minor nobilitate fera est,’ he did never like it, and he did marvel much at the use of Sir John,” to whom he applied, “with a little alteration,” Virgil’s line, “Et quæ tanta fuit Tyburn tibi causa videndi.” Finally by way of “censure” Sir John Hollis was fined £1,000 and Sir John Wentworth 1,000 marks, and each was imprisoned a year in the Tower.
2 In 1632 Mr. Sherfield was prosecuted before the Star Chamber for breaking a glass window in St. Edmond’s Church in Salisbury. He admitted that he had done so, but justified his conduct on the ground that the window “was not a true representation of the Creation; for that it contained divers forms of little old men in blue and red coats, and naked in the head, feet, and hands, for the picture of God the Father, and the seventh day he therein hath represented the like image of God sitting down taking his rest, whereas the defendant conceiveth this to be false.” The window contained many other inaccuracies. Eve, for instance, was represented as being taken whole out of Adam’s side, whereas in fact a rib was taken and made into Eve. Besides, as to the days, “he placed them preposterously, the fourth before the third, and that to be done on the fifth, which was done on the sixth day.” For these reasons the defendant made eleven holes in the window with his pikestaff, and, said one of the witnesses, “the staff broke and he fell down into the seat and lay there a quarter of an hour groaning.” For this, after a long and decorous discussion, Sherfield was fined £500.
3 Mr. Richard Chambers, a merchant of London, who had a dispute with some under officers at the Custom House, was summoned before the Privy Council at Hampton Court, where he said to the Council, “that the merchants are in no part of the world so screwed and wrung as in England; that in Turkey they have more encouragement.” For this little bit of grumbling, directed solely against under officers, he was fined £2,000, and required to make a written submission or apology, which he refused to do. For his refusal he was imprisoned for six years.
These proceedings were sufficiently severe, but those which made the Court utterly intolerable and brought about its abolition were the sentences upon libellers, and the proceedings connected with them. The best known of these may be shortly noticed.
1 In 1632 William Prynne was informed against for his book called Histrio Mastix. Prynne’s answer was, amongst other things, that his book had been licensed, and one of the counsel, Mr. Holbourn, apologised, not without good cause, for his style. 2 “For the manner of his writing he is heartily sorry, that his style is so bitter, and his imputations so unlimited and general.” The book certainly was a bitter and outrageous performance, and it is probable that a moderate sentence upon the author would, at the time, have been approved. His trial was, like the other Star Chamber proceedings, perfectly decent and quiet, but the sentence can be described only as monstrous. He was sentenced to be disbarred and deprived of his university degrees; to stand twice in the pillory, and to have one ear cut off each time; to be fined £5,000; and to be perpetually imprisoned, without books, pen, ink, or paper. One of the Court, 3 Lord Dorset, was as brutal in his judgment as Prynne in his book. “I should be loth he should escape with his ears, for he may get a periwig which he now so much inveighs against, and so hide them, or force his conscience to make use of his unlovely love-locks on both sides; therefore I would have him branded in the forehead, slit in the nose, and his ears cropt too.”
Five years after this, in 1637, Prynne, Bastwick, and Burton, were tried for libel, and were all sentenced to the same punishment as Prynne had received in 1632, Prynne being branded on the cheeks instead of losing his ears.
The procedure in this case appears to me to have been as harsh as the sentence was severe, though I do not think it has been so much noticed. In cases of treason and felony no counsel were allowed to prisoners in the sixteenth and seventeenth centuries, indeed in cases of felony they were not allowed to address the jury for the prisoner till 1837. The rule was otherwise in misdemeanours, and by the practice of the Star Chamber defendants were not only allowed counsel, but were required to get their answers signed by counsel. The effect of this rule, and probably its object was, that no defence could be put before the Court which counsel would not take the responsibility of signing—a responsibility which, at that time, was extremely serious. If counsel would not sign the defendant’s answer he was taken to have confessed the information. Prynne’s answer was of such a character that one of the counsel assigned to him refused to sign it at all, and the other did not sign it till after the proper time. Bastwick could get no one to sign his answer. Burton’s answer was signed by counsel, but was set aside as impertinent. Upon the whole, the case was taken to be admitted by all the three, and judgment was passed on them accordingly. There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defence. It ought, however, in fairness to be admitted that the course taken made no practical difference to the defendants, as they neither could, nor did they wish to deny that they were the authors of the books imputed to them, and the books spoke for themselves. They were asked at the final hearing whether they pleaded guilty or not guilty, although the Court took the matter of the information as admitted. I suppose this was to give them an opportunity of disavowing the publication, if they were so minded, but this is only a conjecture.
The last Star Chamber case to which I will refer is noticeable, amongst other reasons, because it illustrates the intense unpopularity of one of the principal points in the procedure, both of the Star Chamber and of the Ecclesiastical Courts, from which the Star Chamber probably borrowed it. This was what was known as the ex officio oath, already mentioned. In the Common Law Courts 1 this oath is still in constant use without objection, in interlocutory proceedings, but in the old Ecclesiastical Courts and in the Star Chamber it was understood to be, and was, used as an oath to speak the truth on the matters objected against the defendant—an oath, in short, to accuse oneself. It was vehemently contended by those who found themselves pressed by this oath that it was against the law of God, and the law of nature, and that the maxim “nemo tenetur prodere seipsum” was agreeable to the law of God, and part of the law of nature. In this, I think, as in most other discussions of the kind, the real truth was that those who disliked the oath had usually done the things of which they were accused, and which they regarded as meritorious actions, though their judges regarded them as crimes. People always protest with passionate eagerness against being deprived of technical defences against what they regard as bad laws, and such complaints often give a spurious value to technicalities when the cruelty of the laws against which they have afforded protection has come to be commonly admitted.
Be this as it may, the extreme unpopularity of the ex officio oath is set in a clear light by the case of John Lilburn. Lilburn wrote an account of the proceedings against him which is probably substantially accurate and is extremely lively and circumstantial. 2 He was committed to the Gatehouse “for sending of factious and seditious libels out of Holland into England.” He was afterwards ordered by the Privy Council to be examined before the Attorney-General, Sir John Banks. He was accordingly taken to the Attorney-General’s chambers, 3 “and was referred to be examined by Mr. Cockshey his chief clerk; and at our first meeting together he did kindly entreat me, and made me sit down by him, put on my hat, and began with me after this manner. Mr. Lilburn, what is your Christian name?” A number of questions followed, gradually leading up to the matter complained of. Lilburn answered a good many of them, but at last refused to go further, saying, “I know it is warrantable by the law of God, and I think by the law of the land, that I may stand on my just defence, and not answer your interrogatories, and that my accusers ought to be brought face to face, to justify what they accuse me of.” He was afterwards asked by the Attorney-General to sign his examination, but refused to do so, though he offered to write an answer of his own to what might be alleged against him. 1 Some days after he was taken to the Star Chamber office that he might enter his appearance. He replied that he had been served with no subpœna, and that no bill had been drawn against him. “One of the clerks said I must first be examined and then Sir John” (the Attorney-General) “would make the bill.” Lilburn thought the object of the examination was to get materials for a bill, and accordingly when the head of the office tendered him the oath “that you shall make true answer to all things that are asked you,” he refused to do so, saying, first, “I am but a young man and do not well know what belongs to the nature of an oath.” Afterwards he said he was not satisfied of the lawfulness of that oath, and after much dispute absolutely refused to take it. After about a fortnight’s delay he was brought before the Star Chamber, where the oath was again tendered to him and he again refused it on the ground that it was an oath of inquiry for the lawfulness of which he had no warrant. 2 Lilburn had a fellow prisoner, “old Mr. Wharton,” said in one part of the case to have been eighty-five years of age. When asked to take the oath Wharton refused, and began to tell them of the bishops’ cruelty towards him, and that they had “had him in five several prisons within these two years for refusing the oath.” On the following day they were brought up again. Lilburn declared, on his word and at length, that the charges against him were entirely false, and that the books objected to were imported by another person with whom he had no connection. 3 “Then,” said the Lord Keeper, “thou art a mad fellow, seeing things are thus that thou wilt not take the oath and answer truly.” Lilburn repeated that it was an oath of inquiry and that he found no warrant in the word of God for an oath of inquiry. “When I named the word of God the Court began to laugh as though they had had nothing to do with it.” Failing with Lilburn, the Court asked Wharton whether he would take the oath, whereupon getting leave to speak, “he began to thunder it out against the bishops, and told them they required three oaths of the king’s subjects, namely, the oath of church-wardenship, and the oath of canonical obedience, and the oath ex officio, which, said he, are all against the law of the land, and by which they deceive and perjure thousands of the king’s subjects in a year.” “But the Lords, wondering to hear the old man talk after this manner, commanded him to hold his peace, and to answer them whether he would take the oath or no. To which he replied, and desired them to let him talk a little, and he would tell them by and by. At which all the Court burst out laughing; but they would not let him go on, but commanded silence (which if they would have let him proceed, he would have so peppered the bishops as they never were in their lives in an open Court of judicature).” As both absolutely refused to take the oath they were each sentenced to stand in the pillory, and to pay a fine of £500, and Lilburn to be whipped from the Fleet to the pillory, which stood between Westminster Hall Gate and the Star Chamber. Lilburn was whipped accordingly, receiving, it was said, upwards of 500 lashes, and was made to stand in the pillory for two hours after his whipping. In May, 1641, the House of Commons resolved “that the sentence of the Star Chamber given against John Lilburn is illegal, and against the liberty of the subject: and also bloody, cruel, barbarous, and tyrannical.”
It is difficult to say how far the cases reported in the State Trials can be regarded as fair specimens of the common course of the administration of criminal justice, as it is not unnatural to suppose that in cases in which the Government were directly interested prisoners might be treated more harshly than in common cases. The only report of a trial for a common offence given in the State Trials before the year 1640, is that of an appeal of murder tried at the King’s Bench bar, in the 4th Charles I. (1628). The report is published in 14 St. Tr. 1342, from the papers of Serjeant Maynard. The evidence given seems to have been, with one strange exception, similar to the evidence which would be given in the present day on a trial for murder. It was proved that one Jane Norkott was found lying dead in her bed in a composed manner, the bed clothes not disturbed, and her child in bed. Her throat was cut and her neck broken. There was no blood on the bed, but much at two distinct and distant places on the floor, and a bloody knife was found sticking in the floor, the point towards the bed and the haft from the bed. These facts clearly proved that the case was one of murder, and not (as was supposed at first) of suicide. Mary Norkott, the mother of the deceased, Agnes Okeman, her sister, and Okeman, her brother-in-law, deposed at the inquest that they slept in an outer room through which her room was entered, and that no stranger came in in the night. Upon this singularly weak evidence they were suspected of murder, though a coroner’s jury at first returned a verdict of felo de se. After thirty days the body was disinterred and a second inquest held. Probably (though that is not stated) they found a verdict of murder against the defendants, who were tried at Hertford assizes and acquitted. The judge, being dissatisfied with the verdict, recommended that the infant child should be made plaintiff in an appeal of murder against its father, grandmother, aunt, and uncle, and the appeal was tried accordingly. On the trial it was sworn that when the body was disinterred at the second inquest “the four defendants were required, each of them, to touch the dead body. Okeman’s wife fell upon her knees and prayed God to show tokens of her innocency. The appellant” (sic, but as the appellant was a baby this seems strange; probably it should be “appellees”) “did touch the dead body, whereupon the brow of the dead, which before was of a livid and carrion colour, began to have a dew or gentle sweat arise on it, which increased by degrees till the sweat ran down in drops on the face, the brow turned to a lively and fresh colour, and the deceased opened one of her eyes and shut it again; and this opening the eye was done three several times; she likewise thrust out the ring or marriage finger three times and pulled it in again, and the finger dropped blood on the grass.” These occurrences, which I believe (some allowance being made for exaggeration and inaccurate observation) are not unnatural effects of decomposition, seem to have excited the greatest astonishment in Court, but Serjeant Maynard does not say how the judge dealt with them in his charge or what was the result of the proceedings. If they are regarded as miraculous, they have the defect of being wholly uncertain in their meaning, for it is impossible to say whether they attested the innocence of Elizabeth Okeman or her guilt, or that of any, and if so of which, of the other persons concerned.
In the absence of reports of particular trials I may refer to a striking description of trials in general by Sir Thomas Smith, Secretary of State to Queen Elizabeth, which occurs in his 1Commonwealth of England, written during the author’s embassy to France, with special reference to the difference between the institutions of France and England, and the Common and the Civil Law.
The following is his description of a trial at the Assizes: Having described the preliminary proceedings and the fixing of the circuits he describes the Courts themselves. “In the town house or in some open common place there is a tribunal or place of judgment made aloft. Upon the highest bench there sit the judges which be sent down in commission in the midst. Next them on each side the justices of the peace according to their degree. On a lower bench before them the rest of the justices of the peace and some other gentlemen or their clerks. Before these judges and justices there is a table set beneath, at which sitteth the custos rotulorum, or keeper of the writs, the escheator, the under sheriff, and such clerks as do write. At the end of that table there is a bar made with a space for the inquests, and twelve men to come in when they are called, behind that space another bar, and there stand the prisoners which be brought thither by the gaoler all chained together.” The introductory proceedings, including the various proclamations and the taking of the pleas, the challenges and swearing of the jury, are next fully described. They are identically the same as those which now obtain, the very words of the proclamations having remained almost unchanged. The prisoner having pleaded not guilty, and the jury having been sworn, the crier “saith aloud, If any can give evidence or can say anything against the prisoner, let him come now, for he standeth upon his deliverance. If no man come in, then the judge asketh who sent him to prison, who is commonly one of the justices of the peace. He, if he be there, delivereth up the examination which he took of him” (under the Acts of Philip and Mary), “and underneath the names of those whom he hath bound to give evidence: although the malefactor hath confessed the crime to the justice of the peace, and that it appear by his hand and confirmation, the twelve men will acquit the prisoner, but they which should give evidence pay their recognizances. Howbeit this doth seldom chance except it be in small matters and where the justice of the peace who sent the prisoner to the gaol is away.” This curious passage gives a different impression from the reports of cases in the State Trials. The juries in the cases I have referred to showed little inclination to acquit prisoners who had confessed or had been accused by the confessions of others; but Sir Thomas Smith’s account clearly implies that, if the witnesses did not appear, the examination of the prisoner was read, and he probably may (though this is not stated) have been further examined upon it. In such cases as Smith refers to, in the present day the judge would direct an acquittal.
To resume Smith’s account, “If they which be bound to give evidence come in, first is read the examination which the justice of the peace doth give in” (it is likely that the prisoner would be questioned upon it, but this is not mentioned), “then is heard (if he be there) the man robbed, what he can say, being first sworn to say the truth, and after the constable, and as many as were at the apprehension of the malefactors, and so many as can say anything being sworn one after another to say truth. These be set in such a place as they may see the judges and the justices, the inquest and the prisoner, and hear them and be heard of them all. The judge, after they be sworn, asketh first the party robbed if he know the prisoner, and biddeth him look upon him: he saith Yea. The prisoner sometimes saith Nay. The party pursuyvant giveth good ensignes, verbi gratiâ, I know thee well enough; thou robbedst me in such a place, thou beatedst me, thou tookest my horse from me, and my purse; thou hadst then such a coat, and such a man in thy company. The thief will say No, and so they stand a while in altercation. Then he” (I suppose the prosecutor) “telleth all that he can say: after him likewise all those who were at the apprehension of the prisoner, or who can give any indices or tokens, which we call in our language evidence against the malefactor. When the judge hath heard them say enough, he asketh if they can say any more. If they say No, then he turneth his speech to the inquest. Goodmen (saith he), ye of the inquest, ye have heard what these men say against the prisoner. You have also heard what the prisoner can say for himself. Have an eye to your oath and to your duty, and do that which God shall put in your minds to the discharge of your consciences, and mark well what is said. Thus sometimes with one inquest is passed to the number of two or three prisoners. For, if they should be charged with more, the inquest will say, My lord, we pray you charge us with no more; it is enough for our memory. Many times they are charged with but one or two.” The jury then retire to consider their verdicts, and are confined “with neither bread, drink, meat, nor fire. If they be in doubt of anything that is said, or would hear again some of them that gave evidence, to interrogate them more at full, or if any that can give evidence come late, it is permitted that any that is sworn to say the truth may be interrogated of them to inform their consciences.” Finally the verdict is returned; the prisoner, if found guilty, and his offence is clergyable, prays his clergy. If he can read he gets it. If not, or if his offence is not clergyable, the judge passes sentence: “Law is thou shalt return to the place from whence thou camest; from thence thou shalt go to the place of execution. There thou shalt hang till thou be dead. Then he saith to the sheriff, Sheriff, do execution.”
Several observations arise on this striking passage. Smith makes no mention of counsel; he says nothing explicitly of the prisoner’s defence, and he seems to attach little or no importance to the judge’s summing up. On the other hand, the whole account assumes that the common course was to call witnesses face to face, though 1 expressions occur which imply that depositions might be used instead; on what conditions is not stated. From the account given of the reading of the prisoner’s examination as a first step, and of the “altercation” between him and the prosecutor, I should infer that the prisoner’s defence was made, not in a set speech as at present, but by fragments in the way of argument and “altercation” with the prosecutor and the other witnesses. This would agree with and illustrate the reports in the State Trials already referred to. Upon this view the only difference between the trials which are fully reported and the routine described by Smith would be that in the more important cases the examination of the prisoner would be conducted by counsel, whereas in less important cases it would usually consist of a debate between the prisoner and the prosecutor and the other witnesses, the judge of course interfering as he saw fit.
Upon the whole it may be said that the criminal trials of the century preceding the civil war differed from those of our own day in the following important particulars:—
(1) The prisoner was kept in confinement more or less secret till his trial, and could not prepare for his defence. He was examined, and his examination was taken down.
(2) He had no notice beforehand of the evidence against him, and was compelled to defend himself as well as he could when the evidence, written or oral, was produced on his trial. He had no counsel either before or at the trial.
(3) At the trial there were no rules of evidence, as we understand the expression. The witnesses were not necessarily (to say the very least) confronted with the prisoner, nor were the originals of documents required to be produced.
(4) The confessions of accomplices were not only admitted against each other, but were regarded as specially cogent evidence.
(5) It does not appear that the prisoner was allowed to call witnesses on his own behalf; but it matters little whether he was or not; as he had no means of ascertaining what evidence they would give, or of procuring their attendance. In later times they were not examined on oath, if they were called.
This last rule appears to us so extraordinary, that it is necessary to explain how it came about.
1 Barrington, in his Observations on the Statutes, says, “The denying a felon to make his defence by advocate, and the not permitting his witnesses to be examined upon oath till the late statute, seem to have been borrowed from the Roman law, which is indeed the more severe upon the criminal as he is not permitted to produce any witnesses in his favour; and Montesquieu gives this as a reason why perjury is a capital offence in France, though not in England.” 2 Barrington quotes from the journals of the House of Commons, Thursday, June 4, 1607, a paper “delivered to and read by Mr. Speaker, declaring the manner of proceeding in Scotland for point of testimony upon trials in criminal cases, for satisfaction of some doubts.
“In criminal causes by the civil law there is no jury called upon life and death, and therefore the judges admit witnesses in favour of the pursuer, but none in favour of the defender, because in all cases (either criminal or civil) no man can be admitted to prove the contrary of his own accusation, for it is his part who relevantly alleges the same to prove it. As, if A accused B for breaking his stable and stealing his horse such an hour of the night, the pursuer may be well admitted to prove what he hath alleged; but the defendant can never be admitted to prove that he was alibi at that time, for that would be contrary to the libel, and therefore most unformal. In Scotland we are not governed by the civil law, but ordanes (ordinaries probably), and juries are to pass upon life and death much the same as here, which jury, as it comes from the neighbourhood where the fact was committed, are presumed to know much of their own knowledge, and therefore they are not bound to examine any witnesses except they choose to do it on the part of the pursuer; but this is not lawful to be done in favour of the defendant. It is of truth the judge may either privately beforehand examine ex officio such witnesses as the party pursuer will offer to him; and then, when the jury is publicly called, he will cause these depositions to be read, and likewise examine any witnesses which the pursuer shall then desire, but never in favour of the defender.”
I have quoted these passages at length, not only on account of their curiosity, but because they seem to me to throw much light on the spirit of the old criminal procedure. The true reason for the rule as to restricting the defence is obvious. It increased the power of the prosecution, and saved trouble to those who conducted it. It was in complete harmony with the other points in which the trials of the sixteenth century formed a contrast to those of our own day. In the present day the rule that a man is presumed to be innocent till he is proved to be guilty is carried out in all its consequences. The plea of not guilty puts everything in issue, and the prosecutor has to prove everything that he alleges from the very beginning. If it be asked why an accused person is presumed to be innocent, I think the true answer is, not that the presumption is probably true, but that society in the present day is so much stronger than the individual, and is capable of inflicting so very much more harm on the individual than the individual as a rule can inflict upon society, that it can afford to be generous. It is, however, a question of degree, varying according to time and place, how far this generosity can or ought to be carried. Particular cases may well be imagined in which guilt, instead of innocence, would be presumed. The mere fact that a man is present amongst mutineers or rebels would often be sufficient, even in our own days, to cost him his life if he could not prove that he was innocent.
In judging of the trials of the period in question we must remember that there was no standing army, and no organised police on which the Government could rely; that the maintenance of the public peace depended mainly on the life of the sovereign for the time being, and that the question between one ruler and another was a question on which the most momentous issues, religious, political, and social, depended. In such a state of things it was not unnatural to act on a different view as to the presumptions to be made as to guilt and innocence from that which guides our own proceedings.
Suspected people, after all, are generally more or less guilty, and though it may be generous, for the reason already given, to act upon the opposite presumption, I do not see why a Government not strong enough to be generous should shut their eyes to real probabilities in favour of a fiction. This principle must be admitted, and the procedure of the period in question must be judged in the light of it, before it can be fairly criticised. I think such criticism would not be wholly unfavourable to it. The trials were short and sharp; they were directed to the very point at issue, and, whatever disadvantages the prisoner lay under, he was allowed to say whatever he pleased; his attention was pointedly called to every part of the case against him, and if he had a real answer to make he had the opportunity of bringing it out effectively and in detail. It was but seldom that he was abused or insulted.
The general impression left on my mind by reading the trials is that, harsh as they appear to us in many ways, the real point at issue was usually presented to the jury not unfairly. In Raleigh’s case, for instance, the substantial question was, Do you, the jury, believe that Raleigh was guilty because Cobham said so at one time, although it is admitted that he afterwards retracted what he said? In our days such evidence would not be allowed to go before a jury, and, if it were, no jury would act upon it; 1 but it is quite a different question whether, in fact, Cobham did let out the truth in what he said against Raleigh.
It is very questionable to me whether Throckmorton was not privy to Wyat’s rising, and there can be no reasonable doubt that the Duke of Norfolk intrigued with Queen Mary in a manner which meant no good to Elizabeth, whether his conduct amounted technically to high treason or not. In a word, admit that the criminal law is to be regarded as the weapon by which a Government not very firmly established is to defend its existence, admit also that a person generally suspected of being disaffected probably is disaffected, and that, even if he has not done the particular matters imputed to him, he has probably done something else of the same sort, finally remember that the political contests of the sixteenth and seventeenth centuries turned upon the bitterest and the most deep-seated differences which exist amongst men, and that they appealed to the strongest of human passions, and the inference will be that the trials to which I have referred were conducted on intelligible principles, and that, the principles being conceded, their application was not unfair, though the punishments inflicted were no doubt extremely severe.
These trials should be compared not to the English trials of later times, but to those which still take place under the Continental system. It will appear hereafter that the criminal procedure of modern France cannot be said to contrast advantageously with that of the Tudors and early Stuarts, so far as concerns the interests of the accused, and the degree in which the presumption of his innocence is acted upon in practice.
Of course our modern English criminal procedure is greatly superior to that of our ancestors, but there is a common tendency to depreciate past times instead of trying to understand them. The consideration and humanity of our modern criminal courts for accused persons, are due in a great degree to the fact that the whole framework of society, and especially the Government in its various aspects—legislative, executive, and judicial, is now immeasurably stronger than it ever was before, and that it is accordingly possible to adjust the respective interests of the community and of individuals with an elaborate care which was formerly impracticable.
The part of the early criminal procedure which seems to me to have borne most hardly on the accused was the secrecy of the preliminary investigation, and the fact that practically the accused person was prevented from preparing for his defence and from calling witnesses. I am by no means sure that the practice of examining the prisoner pointedly and minutely at his trial was not an advantage to him if he was innocent; and I doubt whether the absence of all rules of evidence, and the habit of reading depositions instead of having the witnesses produced in court, made so much difference as our modern notions would lead us to believe. The one great essential condition of a fair trial is that the accused person should know what is alleged against him, and have a full opportunity of answering either by his own explanations or by calling witnesses, and for this it is necessary that he should have a proper time between the trial and the preparation of the evidence for the prosecution. The management of the trial itself is really a matter of less importance. It will appear, as we go on, that the trial was improved first, and the preliminary procedure afterwards, and it will also appear that the improvement of the trial did little good whilst the preliminary procedure remained unaltered.
The trials which took place between the meeting of the Long Parliament and the Restoration illustrate that part of our history which, for obvious reasons, has aroused the strongest party feelings. The only matter on which I have to observe is the effect which it produced on the administration of criminal justice. With some obvious qualifications, this was almost wholly good. The qualifications are those which are inseparable from the administration of justice in a revolutionary period. The judicial proceedings of such a period cannot, in the nature of things, be regular, because no system of government can make provision for its own alteration by main force. A forcible revolution implies a new departure, and new institutions based upon the will of the successful party, and necessitates acts which involve a greater or less departure from legality. This was no doubt the case to a considerable extent in the English Civil Wars. In some of the impeachments which formed the turning-points in the struggle between the King and the Parliament, and particularly in the attainder of Strafford and the execution of Laud, the law was, to say the least, violently strained. The trial and execution of Charles I. was a proceeding which cannot be criticised at all upon strictly legal grounds. The establishment of the High Court of Justice which tried not only Charles I., but many of his adherents, without a jury, and sentenced them to death, was in itself a greater departure from the ordinary practice of English criminal justice than the Star Chamber. It supplies the only case (so far as I know) in English history in which judges sitting without a jury (other than the members of courts-martial) have been entrusted with the power of life and death. Nevertheless, after making every allowance on these points, it must be remarked that, from the year 1640 downwards, the whole spirit and temper of the criminal courts, even in their most irregular and revolutionary proceedings, appears to have been radically changed from what it had been in the preceding century to what it is in our own days. In every case, so far as I am aware, the accused person had the witnesses against him produced face to face, unless there was some special reason (such as sickness) to justify the reading of their depositions. In some cases the prisoner was questioned, but never to any greater extent than that which it is practically impossible to avoid when a man has to defend himself without counsel. When so questioned, the prisoners usually refused to answer. The prisoner was also allowed, not only to cross-examine the witnesses against him if he thought fit, but also to call witnesses of his own. Whether or not they were examined upon oath I am unable to say.
These great changes in the procedure took place apparently spontaneously, and without any legislative enactment. This, no doubt, favours the view that the course taken in the political trials of the preceding century either really was or else was regarded as being illegal. If they were, the word illegal must have been construed in a sense closely approaching to unjust or immoral.
The proceedings against King Charles I. form a remarkable illustration of the contrast which exists between the administration of justice before and after the Long Parliament and the Civil War. He was, as is known to every one, condemned principally for refusing to plead to the charges made against him by the High Court of Justice, and this was nearly the only step in the whole of his career in which he was not only well advised, but perfectly firm and dignified in his conduct. If he had pleaded he would, of course, have been convicted. The Court, however, did not put their sentence solely on that ground. They took evidence to satisfy their consciences, and there are few stranger documents than 1 the depositions of the witnesses who would have been called against him if he had pleaded, and whom the Court thought it necessary to hear. They prove his presence at the different battles, and the fact that people were killed there, just as witnesses in the present day would prove the facts about any common case of theft or robbery. For instance: “Samuel Morgan, of Wellington, in the county of Salop, felt-maker, sworn and examined, deposeth, that he, this deponent, upon a Monday morning in Keynton field, saw the King upon the top of Edge Hill, in the head of the army; . . . and he saw many men killed on both sides, at the same time and place.” “Gyles Gryce . . . saw the King in front of the army in Naseby Field, having back and breast on.” Also, he “saw a great many men killed on both sides at Leicester, and many houses plundered.”
The punctilious and almost pedantic formality of providing such witnesses for the purpose of proving such facts is characteristic, and shows how deeply men’s minds had been impressed with the importance of proceeding upon proper and formal evidence in criminal cases.
The reigns of Charles II. and James II. form perhaps the most critical part of the history of England, as the whole course of our subsequent history has been determined by the result of the struggles which then took place. At every critical point in those struggles a leading part was played by the courts of criminal justice, before which the contending parties alternately appeared, charged by their adversaries with high treason, generally on perjured evidence, and before judges who were sometimes cowardly and sometimes corrupt partisans.
The history of the most important of these proceedings has been so often related that I should not feel justified, even if my space allowed me, in attempting to go into their circumstances minutely; but there is still room for some observations upon them from the merely legal point of view. I do not think that the injustice and cruelty of the most notorious of the trials—the trials for the Popish Plot, or those which took place before Jeffreys—have been in any degree exaggerated. The principal actors in them have incurred a preeminent infamy, in mitigation of which I have nothing to say, but I am not sure that their special peculiarity has been sufficiently noticed. It may be shortly characterised by saying that the greater part of the injustice done in the reigns of Charles II. and James II. was effected by perjured witnesses, and by the rigid enforcement of a system of preliminary procedure which made the detection and exposure of perjury so difficult as to be practically impossible. There was no doubt a certain amount of high-handed injustice, and the disgusting brutality of Jeffreys naturally left behind it an ineffaceable impression; but, when all this has been fully admitted, I think it ought in fairness to be added that in the main the procedure followed in the last half of the seventeenth century differed but little from that which still prevails amongst us; that many of the trials which took place—especially those which were not for political offences—were perfectly fair; and that even in the case of the political trials the injustice done was due to political excitement, to individual wickedness, and to the harsh working of a system which, though certainly defective in admitting of the possibility of being harshly and unjustly worked, was sound in many respects.
A study of the State Trials leads the reader to wonder that any judge should ever have thought it worth while to be openly cruel or unjust to prisoners. His position enabled him, as a rule, to secure whatever verdict he liked, without taking a single irregular step, or speaking a single harsh word. The popular notion about the safeguards provided by trial by jury, if only “the good old laws of England” were observed, were, I think, as fallacious as the popular conception of those imaginary good old laws. No system of procedure ever devised will protect a man against a corrupt judge and false witnesses, any more than the best system of police will protect him against assassination. The safeguards which the experience of centuries has provided in our own days are, I think, sufficient to afford considerable protection to a man who has sense, spirit, and, above all, plenty of money; but I do not think it possible to prevent a good deal of injustice where these conditions fail. In the seventeenth century, rich and powerful men were as ill off as the most ignorant labourer or workman in our own day; indeed, they were much worse off, for the reasons already suggested.
The importance of these remarks will be illustrated by the trials during the next period to which I have to refer.
The ten years immediately preceding the Revolution are, perhaps, the most important in the judicial history of England. In them occurred the trials for the Popish Plot, the Meal Tub Plot, and the Rye House Plot, the trials connected with the Duke of Monmouth’s rebellion, and the trials which led to the Revolution itself, of which the trial of the Seven Bishops was by far the most important.
One great leading cause of the result of these trials is, I think, to be found in the defects of the system of criminal procedure which was then in full vigour, and which, even to this day, is in force, theoretically though not practically, to a greater extent than is generally supposed to be the case. The prisoner was looked upon from first to last in a totally different light from that in which we regard an accused person. In these days, when a man is to be tried, the jury are told that it is their first duty to regard him as being innocent till he is proved to be guilty, and that the proof of his guilt must be given step by step by the prosecution, till no reasonable doubt can remain upon the subject. This sentiment is both modern and, in my opinion, out of harmony with the original law of the country. No one can be brought to trial till a grand jury has upon oath pronounced him guilty, as the form of every indictment shows. “The jurors for our Lady the Queen, upon their oaths, present that A, wilfully, feloniously, and of his malice aforethought, did kill and murder B.” Why should a man be presumed to be innocent when at least twelve men have positively sworn to his guilt? In former days, as I have already shown, the presentment of a grand jury went a long way towards a conviction, and a man who came before a petty jury under that prejudice was by no means in the same position as a man against whose innocence nothing at all was known. In nearly every one of the trials for the Popish Plot, and, indeed, in all the trials of that time, the sentiment continually displays itself, that the prisoner is half, or more than half, proved to be an enemy to the King, and that, in the struggle between the King and the suspected man, all advantages are to be secured to the King, whose safety is far more important to the public than the life of such a questionable person as the prisoner. A criminal trial in those days was not unlike a race between the King and the prisoner, in which the King had a long start and the prisoner was heavily weighted.
The following were the essential points in the proceedings which established this view. First, the prisoner as soon as he was committed for trial might be, and generally was, kept in close confinement till the day of his trial. He had no means of knowing what evidence had been given against him. He was not allowed as a matter of right, but only as an occasional, exceptional favour, to have either counsel or solicitors to advise him as to his defence, or to see his witnesses and put their evidence in order. When he came into court he was set to fight for his life with absolutely no knowledge of the evidence to be produced against him. Any one who has ever acted as an advocate knows what it is to be called upon to defend a man at a moment’s notice. Under such circumstances, a modern barrister has usually at least a copy of the depositions. To defend a prisoner efficiently is a task which makes considerable demands on the readiness, presence of mind, and facility of comprehension of a man trained to possess and use those faculties. That an uneducated man, whose life is at stake, and who has no warning of what is to be said against him, should do himself justice on such an occasion is a moral impossibility. But this was what was required of every person tried for high treason in the seventeenth century. None of the prisoners tried for the Popish Plot, except Lord Stafford and Sir George Wakeman, defended themselves even moderately well. Langhorn, who was a barrister, lost his head so completely that he did not cross-examine Oates as to the arrangement of his chambers, which was said to be such that Oates could not possibly have heard and seen what he said he heard and saw there—a circumstance on which Scroggs afterwards relied as a justification of his conduct in disbelieving Oates. When an experienced lawyer defended himself so feebly, it is not surprising that inexperienced persons should have been utterly helpless.
That the prisoner’s witnesses were not permitted to be sworn was even in those days considered as a hardship, and the jury were told in all or most of the trials to guard against attaching too much weight to it. The advantage which that state of the law gave to fraudulent defences, which might be set up without any risk of a prosecution for perjury, seems to have been stupidly overlooked. It was also a common topic of complaint that prisoners had no copy of the indictment against them, or of the panel of jurors; but I think the importance of these matters was overrated. A copy of the indictment would only have enabled prisoners to make little quibbles, which the judges would have overruled, and would have been right in overruling; and a copy of the panel is of no real use to a prisoner. If the sheriff wishes to pack a jury, he must be very clumsy if he does not provide a sufficient number of partial jurors, free from any legal objection, to allow for thirty-five peremptory challenges. If, on the other hand, he is fair, one juryman is practically as good as another. The real grievance was keeping the prisoner in the dark as to the evidence against him. Theoretically this grievance still exists, though practically it has long since been removed. As the law still stands, a bill might be sent before a grand jury without notice to the person accused. The bill being found, the person accused might be arrested merely on proof of his identity; he would not be taken before a magistrate, and until he was put in the dock to take his trial he would have no legal right to know who were the witnesses against him, or what they had said, or even to have a copy of the indictment.
These defects in the system of trial in the seventeenth century, I own, strike me as being almost less important than the utter absence which the trials show of any conception of the true nature of judicial evidence on the part of the judges, the counsel, and the prisoners. The subject is even now imperfectly understood, but at that time the study of the subject had not begun.
I have now completed what I had to say on the administration of criminal justice under the Stuarts after the Restoration. The most general observation which it suggests to me is, that it brought to light and illustrated in the case of eminent persons defects both in the law itself and in the methods of procedure which must have produced a great amount of obscure injustice and misery. There must have been plenty of Oateses and Bedloes at the assizes and quarter sessions who have never been heard of, and no doubt scores or hundreds of obscure people suffered for common burglaries and robberies of which they were quite as innocent as Stafford was of the high treason for which he was convicted. There certainly was, however, a considerable improvement in the methods of trial during the seventeenth century. Prisoners were not tortured (as they were in every other part of Europe); witnesses were produced face to face, whom the prisoner could cross-examine. The rules of evidence were beginning to be, to some extent, though to a small extent, recognised and understood, and by the end of the century the evils of judicial corruption and subserviency, and the horrors of a party warfare carried on by reciprocal prosecutions for treason alternately instituted against each other, with fatal effect, by the chiefs of contending parties, had made so deep an impression on the public imagination, that a change of sentiment took place which from that time effectually prevented the scandals of the seventeenth century from being repeated. I have dwelt at length upon the second half of the seventeenth century because it was from its troubles and scandals that a better system arose, which has been by degrees improved into the one which is now administered amongst us.
The administration of criminal justice, after the Revolution, passed into quite a new phase. I should doubt whether much difference was made in the common course of justice, at the assizes and sessions, till very recent times; but from the Revolution to our own day political parties have been recognised parts of the body politic, and political differences have been treated as matters on which contending parties can differ without carrying their disputes to the deadly extremity of prosecutions for treason. There have been plenty of political trials since the Revolution, but from a variety of causes they have been conducted in most cases fairly, in some instances more or less unfairly, but never scandalously. The legislative result of the scandals of the seventeenth century upon criminal procedure was slight. The most important was the enactment that the judges should hold office, not at the pleasure of the Crown, but during good behaviour. This deeply affected the whole administration of justice. The changes in procedure were less important; and applied entirely to trials for high treason. As to them it was enacted, 1 in 1695, that persons indicted for high treason or misprision of treason should have a copy of the indictment five (afterwards extended to ten) days before trial, and be allowed to have counsel and witnesses upon oath; and that the treason should be proved by two witnesses, either both to one overt act, or each to one of two overt acts of the same kind of treason. 1 In 1708 the prisoner was also allowed to have a list of the witnesses and of the jury ten days before his trial. 2 In 1702 it was enacted that in cases of treason and felony the prisoner’s witnesses should be sworn, as well as the witnesses for the Crown. These were the only legislative changes which the scandals of the trials in the days of the later Stuarts produced; and nothing can set in a clearer light the slightness of the manner in which the public attention was then, or indeed till a far later time, directed to the defects of the criminal law.
Many of the trials which took place in the reigns of William III., Anne, George I., and George II. are deeply interesting on various accounts, and especially on account of the strong light which they throw, not only on the history, but still more on the manners of the time; but in a legal point of view they call for little remark. As time passes, the differences between our own days and those of the seventeenth century gradually pass away. From the first there is a complete absence of fierceness and brutality. At first there are 3 a few instances in which prisoners are questioned. For a considerable time the witnesses are allowed to tell their own story at length in their own way, and the restriction as to not swearing the prisoner’s witnesses is kept up till the passing of the statute already referred to. I am not sure that the most striking feature in the political trials of the first part of the eighteenth century is not to be found in the fact that the reforms about giving prisoners indicted for treason a copy of the indictment, lists of jurors and witnesses, and the right to be defended by counsel, made in practice so very little difference. The truth is, that after the Revolution few, if any, prisoners were tried for high treason except people clearly proved to have committed what was held to be treason; and I do not think that counsel had learnt the art of defending prisoners zealously or impressively.
From the middle of the eighteenth century to our own time there has been but little change in the character of criminal trials, and it is unnecessary to give further illustrations of them. The most remarkable change introduced into the practice of the courts was the process by which the old rule which deprived prisoners of the assistance of counsel in trials for felony was gradually relaxed. A practice sprung up, the growth of which cannot now be traced, by which counsel were allowed to do everything for prisoners accused of felony except addressing the jury for them. In the remarkable case of 1 William Barnard, tried in 1758, for sending a threatening letter to the Duke of Marlborough, his counsel seem to have cross-examined all the witnesses fully, in such a way, too, at times, as to be nearly equivalent to speaking for the prisoner, e. g.: “Q. It has been said he went away with a smile. Pray, my Lord Duke, might not that smile express the consciousness of his innocence as well as anything else? A. I shall leave that to the Great Judge.”
On the other hand, at the trial of 2 Lord Ferrers two years afterwards, the prisoner was obliged to cross-examine the witnesses without the aid of counsel and, what seems even harder, to examine for himself witnesses called to prove the defence of insanity which he set up.
Since the middle of the eighteenth century proceedings of the highest importance, and involving momentous changes in the substantive criminal law, have been effected partly by legislation, partly, though to a much smaller extent, by judicial decisions. Of these I shall speak in my chapters on the different branches of the substantive law; but I do not think that the actual administration of justice, or the course of trials has altered much since the beginning of the reign of George III. Its general character has no doubt been affected to a considerable extent by the changes made in the law itself, by the course of thought on legal and political, religious and moral subjects, and by many other influences, but it can hardly be said to have had any history of its own, and apart from its connection with the current events of the time. The only change which has made any great difference between the trials of our own days and those of 120 years ago was made by 1 the Act which allowed prisoners accused of felony to make their full defence by counsel; and this, after all, has only put trials for felonies, such as robbery or burglary, on the same footing as trials for perjury, cheating, and other misdemeanours. Indeed, if we have regard to the powers of cross-examination which were conceded to counsel in the course of the eighteenth century, the change was less important than it may at first sight seem to have been.
The result of the history of the administration of criminal justice in England which I have thus sketched—for it is a slight though not, I hope, an incorrect sketch—may be thus shortly summarized:—
Criminal justice was originally a rude substitute for, or limitation upon, private war, the question of guilt or innocence, so far as it was entertained at all, being decided by the power of the suspected person to produce compurgators or by his good fortune in facing an ordeal. The introduction of trial by combat, though a little less irrational, was in principle a relapse towards private war, but it was gradually restricted and practically superseded many centuries before it was formally abolished.
Trial by jury originated in the adaptation to the purpose of the administration of justice of the process commonly in use in the eleventh and twelfth centuries for obtaining information as to matters of fact, namely, collecting an inquest or body of persons supposed to be acquainted with the subject and taking their sworn statement about it. The members of the inquest were originally witnesses, and, even if they derived their knowledge from other witnesses, they, and not their informants, were responsible for the truth of their verdict. By slow degrees they acquired the character of judges of fact informed by witnesses. This process lasted from the first origin of juries in the twelfth or thirteenth centuries down to the sixteenth century, when we have the first fairly trustworthy records of actual trials.
Side by side with trial by jury during this period, a system was developing itself in the Star Chamber, and similar courts, of a trial by written pleadings, bills, answers, interrogatories, and affidavits, like those which were afterwards in use in the Court of Chancery in civil cases. It exercised a strong influence over trial by jury, and its effect can be traced in all the criminal proceedings which took place under the Tudors, James I. and Charles I. The administration of criminal justice at this time was also affected to a considerable extent by the civil law trial by witnesses, though, on the one hand, it never thoroughly adopted torture, which was practically an essential part of that system, nor did it, on the other, admit, except in the one case of treason, the necessity for two witnesses, which rendered torture necessary in countries where it prevailed.
The Civil Wars broke down this system, and gave to trial by jury an undisputed supremacy, which has now lasted for more than two centuries, in the administration of criminal justice; but the experience of the reigns of Charles II. and James II. showed, first, that juries might be quite as unjust and tyrannical as the Star Chamber; next, that they were equally likely to be unjust on any side in politics; and, lastly, that the true theory of judicial evidence was at that time not understood, and that, so far as it was understood, it had little influence upon verdicts.
Lastly, after the Revolution, a decisive victory having been won by one of the great parties of the State, the administration of criminal justice was set upon a firm and dignified basis, and so became decorous and humane; and as it was mainly left in the hands of private persons, between whom the judges were really and substantially indifferent, the questions which were involved came to be fully and fairly investigated, each party to the contest doing the best he could to establish his own view of the case in which he was interested. The rapid growth of physical science, and indeed of every branch of knowledge, which has been one great characteristic of the history of the last two centuries, naturally influenced the administration of justice as well as other things, and the final result of the long process which I have been trying to describe seems to be that in criminal trials questions of fact are investigated as nearly in the same spirit as other matters of fact as the differences inherent in the nature of the processes will admit. It would be interesting to trace the steps by which this came about, but such an inquiry belongs rather to the history of the rules of evidence than to the history of the administration of criminal justice. The last-mentioned history ends at the point at which the present forms are fully established, and at which the process carried on under them begins to develop itself, in accordance with the general intellectual movement of the age.
[1 ]These passages are extracted from “A History of the Criminal Law of England,” 1883 (London: Macmillan & Co.), vol. 1, parts of chapters VII, VIII, and XI (pp. 184-197, 200, 216-231, 232-236, 238-243, 244-254, 319, 324-335, 337-351, 354-358, 364-365, 369-370, 382-383, 397-399, 415-417, 424-427).
[2 ]1829-1894. Cambridge University, M. A. 1854, London University, LL. B. 1854, Oxford University, D. C. L. (Hon.) 1878; Honorary Fellow of Trinity College (Cambridge) 1885; Legal Member of the Council of the Governor-General of India, 1869-1872; Professor of Common Law in the Inns of Court, 1875; Judge of the High Court of Justice, Queen’s Bench Division, 1879-1891.
[1 ]As to existing laws of arrest, see Dig. Crim. Proc. ch. xii. arts. 96-98.
[2 ]On the conservators of the peace, see FitzHerbert, Justices of the Peace, 6 B.; Coke, 2nd Inst. 538; a large collection of authorities in Burn’s Justice, title “Justices of the Peace;” Hawkins, Pleas of the Crown, bk. ii. ch. viii. vol. ii. p. 38, edition of 1814; but the best and most instructive account of the matter is to be found in the celebrated judgment of Lord Camden in Entick v. Carrington (the case of the seizure of papers), 19 St. Trials, 1030. See also Stephen’s Hist. Cr. L. of Eng. p. 110, &c.
[3 ]Stubbs, Charters, 140-146.
[4 ]Ib. 150-153.
[1 ]Arts. 2, 4.
[2 ]“Robator vel murdrator vel latro.”
[3 ]Arts. 9-11.
[4 ]Art. 12; Stubbs, Charters, 152.
[5 ]“Essonium,” this is the technical word for the excuses given for not taking a step in procedure, e. g. for not appearing on being summoned in an action.
[6 ]Stubbs, Charters, 154.
[1 ]Bracton, iii. 1, vol. ii. p. 235-237 (Twiss’s edition).
[1 ]This enactment was followed by others, e. g. 9 Geo. 1, c. 22, s. 7 (the Black Act), which in particular cases rendered the hundred liable for damages inflicted by criminals. They were all repealed by 7 & 8 Geo. 4, c. 27. There are, however, still one or two cases in which such a liability is imposed by 7 & 8 Geo. 4, c. 31. These relate to damages caused by rioters.
[1 ]See e. g. a petition in 1377 (1 Richard II.): “Item suppliont les ditz communs q les Srs qui ount letters et viewe de frank plegg’ q’ils faient due punissement as Taverners de vins si avant come des autres vitailles.” The answer is, “Il n’est mye article de veue de frank plegge mais en soit usee come ad estee fait resonablement avant ces heures.” 3 Rot. Par. 19; and see 4th Inst. 261.
[1 ]The Statute of Winchester is not mentioned in Coke’s 2nd Institute, and though it was not repealed till 1828, it had for centuries before that time been greatly neglected. See Barrington’s Observations on the Statutes, p. 146.
[1 ]“At eleven o’clock the same night, as I was going into bed, Mr. Thynne’s gentleman came to me to grant a hue and cry” (on his master’s murder by the friends of Count Coningsmark).—Sir J. Reresby’s Memoirs, p. 235 (edition of 1875).
[2 ]See e. g. 9 Geo. 1, c. 7, s. 3; 13 Geo. 3, c. 31; 44 Geo. 3, c. 92.
[3 ]Dig. Crim. Proc. arts. 99-108.
[4 ]Bk. ii. ch. xiii. vol. ii. pp. 129, 130, edition of 1824.
[1 ]4th Inst. 176, 177.
[2 ]2 P. C. 107-110.
[1 ]2 Hale, 72-105.
[2 ]As to present law of summary arrest, see Dig. Crim. Proc. ch. xii. arts. 96-98.
[1 ]1 Hale, 481, 489; and see Foster, 271. This rule seems to overlook the distinction between taking a man prisoner and taking possession of his dead body, for it is difficult to see in what sense a pickpocket can be said to be taken if he is shot dead on the spot. The rule would be more accurately expressed by saying that a man is justified in using any violence to arrest a felon which may be necessary for that purpose, even if it puts, and is known and meant to put, his life in the greatest possible danger, and is inflicted by a deadly weapon, and does in fact kill him.
[2 ]1 Hale, 490; Foster, 418.
[1 ]Dalton’s Justice, p. 3; Burn’s Justice, title “Constable.” A tithingman seems to have been subordinate to the constable.
[2 ]1st Report, p. 17.
[3 ]P. 29.
[1 ]Published in 1796. In the Report of a Select Committee on the Police of the Metropolis, published in 1838, the Committee says of this work, “The merit of being the first to point out the necessity and practicability of a system of preventive police upon an uniform and consistent plan is due to Mr. Colquhoun, the author of the treatise On the Police of the Metropolis.”
[2 ]Colquhoun, p. 232.
[1 ]Parliamentary committees reported on the subject in 1816, 1817, 1818, 1822, and 1828. The evidence given before them fills several bluebooks, and is curious and instructive.
[1 ]For the present law on this subject, and on incidental procedure, see Dig. Crim. Proc. ch. xiii.—xvii., arts. 99-140.
[2 ]Const. Hist. i. 505. For present law, see Dig. Crim. Proc. ch. vii. arts. 43-60, as to appointment and removal of coroners, as to inquests, procedure, &c., arts. 207-232.
[3 ]Bracton, lib. iii. (De Corona) ch. v. Sir T. Twiss discusses the question whether Bracton copied from the statute or the statute from Bracton, and gives reasons in support of the latter view in the introduction to vol. ii. of his edition of Bracton, p. lxi. The Statutum Walliæ contains provisions substantially identical with those of 4 Edw. 1.
[1 ]“Sicut statim vendi possunt.”
[1 ]The historical reason for these enactments will be found in Stephen’s Hist. Cr. L. of Eng., p. 236.
[2 ]11 & 12 Vic. c. 42, s. 17. See Dig. Crim. Proc. art. 109, &c.
[1 ]30 & 31 Vic. c. 35, s. 3.
[2 ]S. 25.
[3 ]S. 27.
[4 ]S. 17.
[1 ]The subject is fully described in Mr. Lea’s Superstition and Force, Philadelphia, 1878, 371-522. According to Mr. Lea, torture was gradually introduced throughout the Continent in the course of the fourteenth, fifteenth, and sixteenth centuries. It was connected with the revival of the Roman law.
[2 ]6 St. Tr. 619, 630.
[1 ]Ib. 572-575.
[2 ]9 St. Tr. 1, and the Memoirs of Sir John Reresby, pp. 235-241.
[3 ]9 St. Tr. pp. 122-124.
[1 ]Memoirs, p. 281.
[2 ]8 St. Tr. 525.
[1 ]In the Revised Statutes. In other editions it is s. 11.
[2 ]8 St. Tr. 723-726, 732.
[1 ]Mr. Chitty moved in arrest of judgment that the proceedings were void because part of the trial took place on the Feast of the Epiphany.
[2 ]The charge is published in the Times, Dec. 5, 1823, also in two printed accounts of the trial which appeared at the time, one of which is in the Inner Temple library. Both of them appear to be in substance reprints from the Times.
[1 ]This observation is too characteristic to have been invented, and so guarantees the authenticity of the report.
[1 ]Introduction to Journal of a Voyage to Lisbon, Works, xii. p. 230, edition of 1775.
[1 ]This reads like an insinuation that he book bribes.
[2 ]This brother was John Fielding, well known for many years as the blind justice. Henry Fielding’s son, William Fielding, was also a London magistrate. He gave evidence before a Committee of the House of Commons in 1816, when he said he had been fifty years in the commission for Westminster.
[3 ]Report of 1816, pp. 139, 140.
[1 ]Dig. Crim. Proc. arts. 136-140.
[1 ]Lib. xiv. c. 1.
[2 ]In cases of treason, ii. 261; homicide, ii. 283; treasure trove, ii. 287; rape, ii. 289; wounding, ii. 288; and see 293.
[3 ]Hist. Cr. L. of Eng. 302.
[1 ]Coke labours to show that this means “by a court of justice,” through which alone the king can act (2nd Inst. p. 186), and see 2 Hale, P. C. 131. This may be very sound constitutional doctrine, but it seems to make nonsense of the alternative “or of his justices.”
[1 ]Mr. Stubbs, in his glossary, says, “Retare, Rettare, to accuse, from the Norse rett, an imputation or accusation.” It soon ran into rectatus from a reminiscence of rectum.
[2 ]2 Hale, P. C. 138-140.
[3 ]For them see 7 Geo. 4, c. 64, s. 32, the repealing clause.
[1 ]There were various forms of it, one for common offences, another for forest offences. See FitzHerbert, De Naturâ Brevium, and see also 2 Hale, Pleas of the Crown.
[1 ]2 Hale, P. C. 124.
[2 ]2 Hale, P. C. 140.
[3 ]Malice. “Ex Anglo-Saxonico forte ‘hatung’ unde Anglis ‘hate’ et Germanis ‘Haet’ . . . vel potius a Greco ἄτη” (Ducange).
[4 ]Bracton, ii. pp. 292-296.
[5 ]I suppose sheriffs and coroners.
[1 ]Bracton, ii. 295-297.
[2 ]“Nihil detur vel capietur de cetero pro brevi inquisitionis de vita vel membris, sed gratis concedetur et non negetur.”—Stubbs, Charters, p. 301. Magna Charta, art. 36.
[3 ]See on this writ, 2 Hale. P. C. 148; Coke, 2nd Inst. 421, on Magna Charta, c. 26, p. 315, on the Statute of Gloucester, c. 9. See also Foster, 284-285.
[4 ]See e. g. the case of Witmore for kidnapping in 1682, 8 State Trials, 1347, and two records of de homine replegiando printed at pp. 1350-1385. See also some remarks in Selden’s argument in the case of the writ of habeas corpus moved for on behalf of Hampden and others, 3 St. Tr. 95. In the case of Lord Grey of Werke, a writ de homine replegiando was issued to force him to produce his sister-in-law, Lady Henrietta Berkeley, whom he had seduced. See 9 St. Tr. 184.
[1 ]The Courts of Common Pleas and Exchequer had originally to issue the writ under a fiction to the effect that the person requiring it was privileged or was to be sued in the court from which the writ issued. See 2 Hale, P. C. 144; but by 16 Chas. 1, c. 10, s. 6, the Common Pleas obtained original jurisdiction in the matter and by 31 Chas. 2, c. 2, all the three courts are empowered to grant the writ.
[2 ]Stephen’s Hist. Cr. L. of Eng., ch. vi.
[3 ]If compurgation is counted there have been four, but compurgation in criminal cases hardly survived the Norman Conquest, though some traces of it remained in the hundred and manor courts. In the ecclesiastical courts it lasted till 1640, as will appear hereafter. In the form of “wager of law” in civil cases it maintained a nominal existence till the year 1834, when it was abolished by 3 & 4 Will. 4, c. 42, s. 13. Probably the last case in which it was actually put in force was King v. Williams (2 B. and C. 538, 1824). In this case on an action of simple contract the defendant prepared to bring eleven “compurgators, but the plaintiff abandoned his action.” Much information on this subject is to be found in Pike’s History of Crime. The references are collected in the Index.
[1 ]Brac. 424-33.
[1 ]Bracton, ii. 425.
[2 ]Ib. p. 434.
[3 ]Ib. p. 442.
[4 ]Ib. p. 452.
[5 ]Ib. p. 448.
[6 ]Britton (by Nicholls), 97-125.
[1 ]Bk. ii. ch. xxiii. vol. ii. p. 223-281, ed. 1824. The book was written early in the eighteenth century.
[2 ]3 St. Tr. 483-519. Some other cases of trial by combat in civil cases are referred to in the notes to this case. One of the combatants in the last case of trial by battle in a civil action was Lilburn, the father of John Lilburn, known under Charles I. and Cromwell as “Free-born John.”
[1 ]Corone, No. 44, H. 22 Edw. 4.
[1 ]In Spencer Cowper’s case, 13 St. Tr. 1190, as also the cases of Bambridge and Corbet, 17 St. Tr. 395-7. In Bigby v. Kennedy, 5 Bur. 2643, a careful report is given of the proceedings in an appeal on account of their rarity.
[2 ]See an account of this in Horne Tooke’s defence on his prosecution for libel in 1777. 20 St. Tr. 716, 717.
[3 ]1 Bar. and Ald. 405.
[4 ]Mr. Chitty and Sir N. Tindal argued the case. It will be found that practically Bracton is the great authority.
[1 ]Bracton, 523, &c.
[2 ]Ib. 532.
[1 ]Glanville, book xiv.
[2 ]Stubbs, Charters, 143, 150.
[1 ]This was the common punishment for robbery in India under native rule. I have myself seen men in Lahore whose hands (as they said themselves) had been cut off by Runjeet Singh for theft. In the Life of Thomas, a Baptist missionary at Calcutta, there is an account of the punishment of fourteen decoits in the neighbourhood of Calcutta, each of whom had his hand and foot cut off on the 15th February, 1789, on the western bank of the Hooghly, opposite Calcutta.—Lewis’s Life of Thomas, p. 18.
[2 ]Palgrave, clxxxv.—clxxxviii.
[1 ]Palgrave, cxiii.
[2 ]The last reference to the system which I have met with is in one of the trials for the Popish Plot. Gavan, one of the five Jesuits who were tried and executed upon the evidence of Oates in 1679, begged to be allowed “to put himself upon the trial of ordeal” (7 St. Tr. 383), alleging that “in the beginning of the Church it was a custom, and grew to a constant law,” that a person accused of a capital offence should be allowed to do so when there was only the accuser’s oath against his denial. It is odd that Gavan should have supposed that judgment by ordeal was a specially ecclesiastical mode of proceeding, when, in fact, its abolition was due to the ecclesiastical legislation on the subject.
[3 ]Stephen’s Hist. Cr. L. of Eng., p. 102.
[1 ]The law relating to petty juries is now regulated by statute in most though not in all particulars (see 6 Geo. 4, c. 50, and some later acts, especially 33 and 34 Vic. c. 77). As to grand juries, see Dig. Crim. Proc. ch. xxii. arts. 184-188.
[1 ]1 St. Tr. 395.
[1 ]The copy of the indictment is very imperfect. 1 St. Tr. p. 869.
[2 ]In Fortescue’s time the judges usually sat from 8 to 11.
[1 ]He was probably the Prime Serjeant, who, if there were such a personage in these days, would take precedence of the law officers. In most of the cases referred to the Prime Serjeant is leading counsel for the prosecution.
[1 ]“Proveably attainted by open deed by people of like condition.” People of like condition, according to Bromley, C. J., means “your accomplices in treason—traitors like yourself”—which Throckmorton naturally called “a very strange and singular understanding.”
[1 ]1 St. Tr. 957-1042.
[1 ]1 St. Tr. 1049-1088.
[2 ]Ib. 1141-1162.
[3 ]Ib. 1253.
[4 ]Ib. 1271-1315.
[1 ]2 St. Tr. 1-60.
[2 ]Ib. 159-359.
[3 ]Ib. 911-1022.
[4 ]Ib. 965-1022.
[5 ]Ib. 936.
[6 ]Ib. 992-994.
[7 ]Ib. 939-940.
[8 ]Ib. 941.
[9 ]Ib. 946.
[1 ]2 St. Tr. 25.
[2 ]Ib. 26:—“Att.: Thou art the most vile and execrable traitor that ever lived. Raleigh: You speak indiscreetly, barbarously, and uncivilly. Att.: I want words sufficient to express thy viperous treasons. Raleigh: I think you want words, indeed, for you have spoken one thing half a dozen times. Att.: Thou art an odious fellow. Thy name is hateful to all the realm of England for thy pride. Raleigh: It will go hard to prove a measuring cast between you and me, Mr. Attorney. Att.: Well I will now make it appear that there never lived a viler viper upon the face of the earth than thou.” In the case of Wraynham before the Star Chamber for slandering Lord Bacon, Coke said, “Take this from me, that what grief soever a man hath, ill words work no good, and learned counsel never use them.”—2 St. Tr. 1073. As to Raleigh’s trial viewed historically, see Gardiner’s Hist. of Eng. i. 93-109.
[1 ]3rd Inst. 25-26.
[2 ]2 St. Tr. 14.
[3 ]Ib. 15.
[4 ]Ib. 18.
[1 ]2 St. Tr. 1022.
[1 ]Tristia, iii. 5, 35, 36. The first line is both incorrect and imperfect. It is “Ut lupus et turpes instant morientibus ursi.”
[2 ]3 St. Tr. 519.
[3 ]3 St. Tr. 373.
[1 ]3 St. Tr.
[2 ]Ib. 572.
[3 ]St. Tr. 585.
[1 ]Under the name of the “voir” (vrai) “dire.” “You shall true answer make to all such questions as shall be demanded of you.”
[2 ]3 St. Tr. 1315-1368.
[3 ]Ib. 1317.
[1 ]3 St. Tr. 1320.
[2 ]3 St. Tr. 1322.
[3 ]Ib. 1325.
[1 ]Smith’s Commonwealth, ch. xxv. pp. 183-201.
[1 ]“It will seem strange to all nations that do use the Civil Law of the Roman Emperors that for life and death there is nothing put in writing but the indictment only. All the rest is done openly in the presence of the judges, the inquest, and the prisoner, and so many as will or can come so near as to hear it, and all depositions and witnesses given aloud, that all men may hear from the mouth of the depositors and witnesses what is said.”—P. 196.
[1 ]Observations on the Statutes, pp. 89, 90.
[2 ]The paper is not printed in the Journals, but the House had then before it a question as to giving Scotch courts jurisdiction over Englishmen charged with border offences. See Gardiner, Hist. of Eng. i. 320-321.
[1 ]This matter is fully examined in Mr. Gardiner’s History of England, i. pp. 96-108; see in particular pp. 106-7.
[1 ]4 St. Tr. 1101-1113.
[1 ]7 & 8 Will. 3, c. 3.
[1 ]7 Anne, c. 27. s. 14.
[2 ]1 Anne. st. 2. c. 9.
[3 ]See e. g. the trial of Harrison for the murder of Dr. Clench, in which the prisoner was questioned at some length by Holt, 12. St. Tr. 859.
[1 ]19 St. Tr. 815.
[2 ]Ib. 886.
[1 ]6 & 7 Will. 4, c. 114, s. 1.