Front Page Titles (by Subject) CHAPTER XIII: The Subject continued. - The Constitution of England; Or, an Account of the English Government
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER XIII: The Subject continued. - Jean Louis De Lolme, The Constitution of England; Or, an Account of the English Government 
The Constitution of England; Or, an Account of the English Government, edited and with an Introduction by David Lieberman (Indianapolis: Liberty Fund, 2007).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Subject continued.
After having offered to the reader, in the preceding Chapter, such general considerations as I thought necessary, in order to convey a juster idea of the spirit of the criminal Judicature in England, and of the advantages peculiar to it, I now proceed to exhibit the particulars.
When a person is charged with a crime, the Magistrate, who is called in England a Justice of the Peace, issues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him: he must then hear him, and take down in writ-ing his answers, together with the different informations. If it appears on this examination, either that the crime laid to the charge of the person who is brought before the Justice, was not committed, or that there is no just ground to suspect him of it, he must be set absolutely at liberty: if the contrary results from the examination, the party accused must give bail for his appearance to answer to the charge; unless in capital cases, for then he must, for safer custody, be really committed to prison, in order to take his trial at the next Sessions.
But this precaution of requiring the examination of an accused person, previous to his imprisonment, is not the only care which the law has taken in his behalf; it has farther ordained that the accusation against him should be again discussed, before he can be exposed to the danger of a trial. At every session the Sheriff appoints what is called the Grand Jury. This Assembly must be composed of more than twelve Men, and less than twenty-four; and is always formed out of the most considerable persons in the County. Its function is to examine the evidence that has been given in support of every charge: if twelve of those persons do not concur in the opinion that an accusation is well grounded, the party is immediately discharged; if, on the contrary, twelve of the grand Jury find the proofs sufficient, the prisoner is said to be indicted, and is detained in order to go through the remaining proceedings.
On the day appointed for his Trial, the prisoner is brought to the bar of the Court, where the Judge, after causing the bill of indictment to be read in his presence, must ask him how he would be tried: to which the prisoner answers, by God and my Country; by which he is understood to claim to be tried by a Jury, and to have all the judicial means of defence to which the law intitles him. The Sheriff then appoints what is called the Petty Jury: this must be composed of twelve Men, chosen out of the county where the crime was committed, and possessed of a landed income of ten pounds by the year; their declaration finally decides on the truth or falshood of the accusation.
As the fate of the prisoner thus entirely depends on the Men who compose this Jury, Justice requires that he should have a share in the choice of them; and this he has through the extensive right which the law has granted him, of challenging, or objecting to, such of them as he may think exceptionable.1
These challenges are of two kinds. The first, which is called the challenge to the array, has for its object to have the whole pannel set aside: it is proposed by the prisoner when he thinks that the Sheriff who formed the pannel is not indifferent in the cause; for instance, if he thinks he has an interest in the prosecution, that he is related to the prosecutor, or in general to the party who pretends to be injured.
The second kind of challenges are called, to the Polls (in capita): they are exceptions proposed against the Jurors, severally, and are reduced to four heads by Sir Edward Coke.2 That which he calls propter honoris respectum,3 may be proposed against a Lord impannelled on a jury; or he might challenge himself. That propter defectum4 takes place when a Juror is legally incapable of serving that office, as, if he was an alien; if he had not an estate sufficient to qualify him, &c. That propter delictum5 has for its object to set aside any Juror convicted of such crime or misdemeanor as renders him infamous, as felony, perjury, &c. That propter affectum6 is proposed against a Juror who has an interest in the conviction of the prisoner: he, for instance, who has an action depending between him and the prisoner; he who is of kin to the prosecutor, or his counsel, attorney, or of the same society or corporation with him, &c. (a) .
In fine, in order to relieve even the imagination of the prisoner, the law allows him, independently of the several challenges above mentioned, to challenge peremptorily, that is to say, without shewing any cause, twenty Jurors successively (b) .
When at length the Jury is formed, and they have taken their oath, the indictment is opened, and the prosecutor produces the proofs of his accusation. But, unlike to the rules of the Civil Law, the witnesses deliver their evidence in the presence of the prisoner: the latter may put questions to them; he may also produce witnesses in his behalf, and have them examined upon oath. Lastly, he is allowed to have a Counsel to assist him, not only in the discussion of any point of law which may be complicated with the fact, but also in the investigation of the fact itself, and who points out to him the questions he ought to ask, or even asks them for him (a) .
Such are the precautions which the law has devised for cases of common prosecutions; but in those for High Treason, and for misprision of treason, that is to say, for a conspiracy against the life of the King, or against the State, and for a concealment of it (b) , accusations which suppose a heat of party and powerful accusers, the law has provided for the accused party farther safe-guards.
First, no person can be questioned for any treason, except a direct attempt on the life of the King, after three years elapsed since the offence. 2o. The accused party may, independently of his other legal grounds of challenging, peremptorily challenge thirty-five Jurors. 3o. He may have two Counsel to assist him through the whole course of the proceedings. 4o. That his witnesses may not be kept away, the Judges must grant him the same compulsive process to bring them in, which they issue to compel the evidences against him. 5o. A copy of his indictment must be delivered to him ten days at least before the trial, in presence of two witnesses, and at the expence of five shillings; which copy must contain all the facts laid to his charge, the names, professions, and abodes, of the Jurors who are to be on the pannel, and of all the witnesses who are intended to be produced against him (c) .
When, either in cases of high treason, or of inferior crimes, the prosecutor and the prisoner have closed their evidence, and the witnesses have answered to the respective questions both of the Bench, and of the Jurors, one of the Judges makes a speech, in which he sums up the facts which have been advanced on both sides. He points out to the Jury what more precisely constitutes the hinge of the question before them; and he gives them his opinion, both with regard to the evidences that have been given, and to the point of law which is to guide them in their decision. This done, the Jury withdraw into an adjoining room, where they must remain without eating and drinking, and without fire, till they have agreed unanimously among themselves, unless the Court give a permission to the contrary. Their decla-ration or verdict (veredictum) must (unless they choose to give a special verdict) pronounce expressly, either that the prisoner is guilty, or that he is not guilty, of the fact laid to his charge. Lastly, the fundamental maxim of this mode of proceeding, is, that the Jury must be unanimous.
And as the main object of the institution of the Trial by a Jury, is to guard accused persons against all decisions whatsoever by Men invested with any permanent official authority (a) , it is not only a settled principle that the opinion which the Judge delivers has no weight but such as the Jury choose to give it, but their verdict must besides comprehend the whole matter in trial, and decide as well upon the fact, as upon the point of law that may arise out of it: in other words, they must pronounce both on the commission of a certain fact, and on the reason which makes such fact to be contrary to law (b) .
This is even so essential a point, that a bill of indictment must expressly be grounded upon those two objects. Thus, an indictment for treason must charge, that the alledged facts were committed with a treasonable intent (proditoriè). An indictment for murder must express, that the fact has been committed with malice prepense, or aforethought. An indictment for robbery must charge, that the things were taken with an intention to rob, (animo furandi), &c. &c. (a) .
Juries are even so uncontrolable in their verdict, so apprehensive has the Constitution been lest precautions to restrain them in the exercise of their function, however specious in the beginning, might in the issue be converted to the very destruction of the ends of that institution, that it is a repeated principle that a Juror, in delivering his opinion, is to have no other rule but his opinion itself,—that is to say, no other rule than the belief which results to his mind from the facts alledged on both sides, from their probability, from the credibility of the witnesses, and even from all such circumstances as he may have a private knowledge of. Lord Chief Justice Hale expresses himself on this subject, in the following terms, in his History of the Common Law of England, chap. 12. § 11.7
“In this recess of the Jury, they are to consider their evidence, to weigh the credibility of the witnesses, and the force and efficacy of their testimonies; wherein (as I before said) they are not precisely bound to the rules of the Civil Law, viz. to have two witnesses to prove every fact, unless it be in cases of treason, nor to reject one witness because he is single, or always to believe two witnesses, if the probability of the fact does upon other circumstances reasonably encounter them; for the Trial is not here simply by witnesses, but by Jury: nay, it may so fall out, that a Jury upon their own knowledge may know a thing to be false that a witness swore to be true, or may know a witness to be incompetent or incredible, though nothing be objected against him—and may give their verdict accordingly” (a) .
If the verdict pronounces not guilty, the prisoner is set at liberty, and cannot, on any pretence, be tried again for the same offence. If the verdict declares him guilty, then, and not till then, the Judge enters upon his function as a Judge, and pronounces the punishment which the law appoints (b) . But, even in this case, he is not to judge according to his own discretion only; he must strictly adhere to the letter of the law; no constructive extension can be admitted; and however criminal a fact might in itself be, it would pass unpunished if it were found not to be positively comprehended in some one of the cases provided for by the law. The evil that may arise from the impunity of a crime, that is, an evil which a new law may instantly stop, has not by the English laws been considered as of magnitude sufficient to be put in comparison with the danger of breaking through a barrier on which so mightily depends the safety of the individual (a) .
To all these precautions taken by the law for the safety of the Subject, one circumstance must be added, which indeed would alone justify the partiality of the English Lawyers to their laws in preference to the Civil Law,—I mean the absolute rejection they have made of torture (b) . Without repeating here what has been said on this subject by the admirable Author of the Treatise on Crimes and Punishments,8 I shall only observe, that the torture, in itself so horrible an expedient, would, more especially in a free State, be attended with the most fatal consequences. It was absolutely necessary to preclude, by rejecting it, all attempts to make the pursuit of guilt an instrument of vengeance against the innocent. Even the convicted criminal must be spared, and a practice at all rates exploded, which might so easily be made an instrument of endless vexation and persecution (a) .
For the farther prevention of abuses, it is an invariable usage, that the Trial be public. The prisoner neither makes his appearance, nor pleads, but in places where every body may have free entrance; and the witnesses when they give their evidence, the Judge when he delivers his opinion, the Jury when they give their verdict, are all under the public eye. Lastly, the Judge cannot change either the place or the kind of punishment ordered by the law; and a Sheriff who should take away the life of a Man in a manner different from that which the law prescribes, would be prosecuted as guilty of murder (b) .
In a word, the Constitution of England being a free Constitution, demanded from that circumstance alone (as I should already have but too often repeated, if so fundamental a truth could be too often urged) extraordinary precautions to guard against the dangers which unavoidably attend the Power of inflicting punishments; and it is particularly when considered in this light, that the Trial by Jury proves an admirable institution.
By means of it, the Judicial Authority is not only placed out of the hands of the Man who is vested with the Executive Authority—it is even out of the hands of the Judge himself. Not only, the person who is trusted with the public power cannot exert it, till he has as it were received the permission to that purpose, of those who are set apart to administer the laws; but these latter are also restrained in a manner exactly alike, and cannot make the law speak, but when, in their turn, they have likewise received permission.
And those persons to whom the law has thus exclusively delegated the prerogative of deciding that a punishment is to be inflicted,—those Men without whose declaration the Executive and the Judicial Powers are both thus bound down to inaction, do not form among themselves a permanent Body, who may have had time to study how their power can serve to promote their private views or interest: they are Men selected at once from among the people, who perhaps never were before called to the exercise of such a function, nor foresee that they ever shall be called to it again.
As the extensive right of challenging, effectually baffles, on the one hand, the secret prac-tices of such as, in the face of so many discouragements, might still endeavour to make the Judicial Power subservient to their own views, and on the other excludes all personal resentments, the sole affection which remains to influence the integrity of those who alone are intitled to put the public power into action, during the short period of their authority, is, that their own fate as subjects, is essentially connected with that of the Man whose doom they are going to decide.
In fine, such is the happy nature of this institution, that the Judicial Power, a power so formidable in itself, which is to dispose without finding any resistance, of the property, honour, and life of individuals, and which, whatever precautions may be taken to restrain it, must in a great degree remain arbitrary, may be said in England, to exist,—to accomplish every intended end,—and to be in the hands of nobody (a) .
In all these observations on the advantages of the English criminal laws, I have only considered it as connected with the Constitution, which is a free one; and it is in this view alone that I have compared it with the Jurisprudence received in other States. Yet, abstractedly from the weighty constitutional considerations which I have suggested, I think there are still other interesting grounds of pre-eminence on the side of the laws of England.
In the first place, they do not permit that a Man should be made to run the risque of a trial, but upon the declaration of twelve persons at least (the Grand Jury). Whether he be in prison, or on his Trial, they never for an instant refuse free access to those who have either advice, or comfort, to give him: they even allow him to summon all who may have any thing to say in his favour. And lastly, what is of very great importance, the witnesses against him must deliver their testimony in his presence; he may cross examine them, and, by one unexpected question, confound a whole system of calumny: indulgences these, all denied by the laws of other Countries.
Hence, though an accused person may be exposed to have his fate decided by persons (the Petty Jury) who possess not, perhaps, all that sagacity which in some delicate cases it is particularly advantageous to meet with in a Judge, yet this inconvenience is amply compensated by the extensive means of defence with which the law, as we have seen, has provided him. If a Juryman does not possess that expertness which is the result of long practice, yet neither does he bring to judgement that hardness of heart which is, more or less also, the consequence of it: and bearing about him the principles, let me say, the unimpaired instinct of humanity, he trembles while he exercises the awful office to which he finds himself called, and in doubtful cases always decides for mercy.
It is to be farther observed, that in the usual course of things, Juries pay great regard to the opinions delivered by the Judges: that in those cases where they are clear as to the fact, yet find themselves perplexed with regard to the degree of guilt connected with it, they leave it, as has been said before, to be ascertained by the discretion of the Judge, by returning what is called a Special Verdict: that, whenever circumstances seem to alleviate the guilt of a person, against whom nevertheless the proof has been positive, they temper their verdict by recommending him to the mercy of the King; which seldom fails to produce at least a mitigation of the punishment: that, though a Man, once acquitted, can never under any pretence whatsoever be again brought into peril for the same offence, yet a new Trial would be granted, if he had been found guilty upon proofs strongly suspected of being false (Blackst. b. iv. c. 27).9 Lastly, what distinguishes the laws of England from those of other Countries in a very honourable manner, is, that as the torture is unknown to them, so neither do they know any more grievous punishment than the simple deprivation of life.10
All these circumstances have combined to introduce such a mildness into the exercise of criminal Justice, that the trial by Jury is that point of their liberty to which the people of England are most thoroughly and universally wedded; and the only complaint I have ever heard uttered against it, has been by Men who, more sensible of the necessity of public order than alive to the feelings of humanity, think that too many offenders escape with impunity.
[1. ]As De Lolme noted previously, in chapter 9, p. 81, note a, the right of the accused to challenge potential jurors was rarely utilized in practice. His account here of the rights enjoyed by those facing trial for criminal offences reports more accurately the formal legal protections than the routine practices of trial and conviction.
[2. ]See Edward Coke, First Part of the Institutes of the Laws of England, 156. (The “First Part” of Coke’s Institutes is the same work also commonly referred to as Coke upon Littleton.) For Coke’s Institutes, see above, book 1, chapter 9, p. 85, note 8.
[3. ]“From respect to his dignity.”
[4. ]“Because of incapacity.”
[5. ]“Because of delinquency.”
[6. ]“Because of interest.”
[(a) ]When the prisoner is an alien, one half of the Jurors must also be aliens; a Jury thus formed is called a Jury de medietate linguae. [[Literally “of mixed language.” This jury comprised an equal number of natives and foreigners.]]
[(b) ]When these several challenges reduce too much the number of Jurors on the pannel, which is forty-eight, new ones are named on a writ of the Judge, who are named the Tales, from those words of the writ, decem or octo tales. [[“Ten or eight of such kind.”]]
[(a) ]This last article however is not established by law, except in cases of treason; it is done only through custom and the indulgence of the Judges. [[According to the strict rules of common law, defendants in trials for capital crimes (in contrast to civil suits) were not allowed legal counsel, and the judge was responsible for advising the accused. However, by De Lolme’s time the practice developed of allowing the accused to receive occasional advice from counsel on questions of law. The right to a full defense by counsel in cases of high treason was established by statute in 1696.]]
[(b) ]The penalty of a misprision of treason is, the forfeiture of all goods, and imprisonment for life.
[(c) ]Stat. 7 Will. III. c. 3. and 7 Ann. c. 21. The latter was to be in force only after the death of the late Pretender. [[De Lolme refers to legislation enacted in 1696 and 1709. The “late Pretender” is James Francis Edward Stuart, who died in 1766 and was the heir of the deposed James II.]]
[(a) ]“Laws,” as Junius says extremely well, “are intended, not to trust to what Men will do, but to guard against what they may do.” [[“Junius” was the pseudonymous author of a famous and frequently reprinted series of political letters attacking government ministers and policy that appeared in London’s the Public Advertiser between 1769 and 1772. De Lolme cites, with slight variation, a passage from the letter of July 29, 1769, which Junius addressed to William Blackstone.]]
[(b) ]Unless they choose to give a special verdict.—“When the Jury,” says Coke, “doubt of the law, and intend to do that which is just, they find the special matter, and the entry is, Et super totâ materiâ petunt discretionem Justiciariorum.” Inst. iv. p. 41. [[“On the whole matter they desire the opinion of the judges.” In a “special verdict” in a criminal trial, the jury determined the facts of the case but left to the court the question of law, such as (for example) whether a particular homicide constituted murder or manslaughter. De Lolme cites Edward Coke’s discussion of “special verdicts” in Institutes of the Laws of England, part 4, p. 41. (The “Fourth Part” of Coke’s Institutes was published posthumously in 1644.)—These words of Coke, we may observe, confirm beyond a doubt the power of the Jury to determine on the whole matter in trial: a power which in all constitutional views is necessary; and the more so, since a prisoner cannot in England challenge the Judge, as he can under the Civil Law, and for the same causes as he can a witness.]]
[(a) ]The principle that a Jury is to decide both on the fact and the criminality of it, is so well understood, that if a verdict were so framed as only to have for its object the bare existence of the fact laid to the charge of the prisoner, no punishment could be awarded by the Judge in consequence of it. Thus, in the prosecution of Woodfall, for printing Junius’s letter to the King, the Jury brought in the following verdict, guilty of printing and publishing, only; the consequence of which was the discharge of the prisoner. [[De Lolme refers to the 1770 trial in the Court of King’s Bench of the printer Henry Woodfall, who was prosecuted for seditious libel for the publication of Junius’s “Letter to the King” of December 19, 1769, which attacked government policy on the American colonies. The jury’s verdict—“guilty of printing and publishing only”—defied the instruction given by the presiding judge, Chief Justice Lord Mansfield, who maintained that the judges would decide the legal question of whether Junius’s letter constituted a seditious libel and sought to restrict the jury to the factual question of whether or not Woodfall was the letter’s publisher. The law remained more controversial and unsettled than De Lolme’s account indicates. The matter was not fully resolved until the 1792 enactment of Fox’s libel law, which gave the jury the authority to determine the general legal issue.]]
[7. ]De Lolme quotes Hale in support of the early doctrine (later described as the “self-informing jury”) that the evidence considered by a jury in deciding its verdict was not limited to the evidence presented at trial. For Hale, see above, book 1, chapter 2, p. 38, note 3.
[(a) ]The same principles and forms are observed in civil matters; only peremptory challenges are not allowed.
[(b) ]When the party accused is one of the Lords temporal, he likewise enjoys the universal privilege of being judged by his Peers; though the Trial then differs in several respects. In the first place, as to the number of the Jurors: all the Peers are to perform the function of such, and they must be summoned at least twenty days beforehand. II. When the Trial takes place during the session, it is said to be in the High Court of Parliament; and the Peers officiate at once as Jurors and Judges: when the Parliament is not sitting, the Trial is said to be in the Court of the High Steward of England; an office which is not usually in being, but is revived on those occasions; and the High Steward performs the office of Judge. III. In either of these cases, unanimity is not required; and the majority, which must consist of twelve persons at least, is to decide.
[(a) ]I shall give here an instance of the scruple with which the English Judges proceed upon occasions of this kind. Sir Henry Ferrers having been arrested by virtue of a warrant, in which he was termed a Knight, though he was a Baronet, Nightingale his servant took his part, and killed the Officer; but it was decided, that as the Warrant “was an ill Warrant, the killing an Officer in executing that Warrant, cannot be murder, because no good Warrant: wherefore he was found not guilty of the murder and manslaughter.”—See Croke’s Rep. P. III. p. 371. [[De Lolme refers to the 1635 “Sir Henry Ferrer’s Case” heard by the Court of King’s Bench and reported in Reports of Sir George Croke, Knight, ed. and trans. Harbottle Grimstone (1657–61), 3:371.]]
[(b) ]Coke says (Inst. III. p. 35.) that when John Holland, Duke of Exeter, and William de la Poole, Duke of Suffolk, renewed, under Henry VI. the attempts made to introduce the Civil Law, they exhibited the torture as a beginning thereof. The instrument was called the Duke of Exeter’s daughter. [[De Lolme cites Edward Coke’s discussion in Institutes of the Laws of England, part 3, p. 35. (The “Third Part” of Coke’s Institutes was published posthumously in 1644.) Coke reports these developments to have occurred in the years 1448–50.]]
[8. ]Chapter 16 of Cesare Beccaria’s 1764 Dei delitti e delle pene (On crimes and punishments) contained a comprehensive condemnation of the practice of judicial torture to secure criminal confessions.
[(a) ]Judge Foster relates, from Whitlock, that the Bishop of London having said to Felton, who had assassinated the Duke of Buckingham, “If you will not confess, you must go to the Rack”; the Man replied, “If it must be so, I know not who I may accuse in the extremity of the torture; Bishop Laud perhaps, or any Lord at this Board.”
[(b) ]And if any other person but the Sheriff, even the Judge himself, were to cause death to be inflicted upon a Man, though convicted, it would be deemed homicide. See Blackstone, book iv. ch. 14. [[Blackstone’s statement, part of his general treatment of homicide, appeared in Commentaries on the Laws of England, 4:179.]]
[(a) ]The consequence of this Institution is, that no Man in England ever meets the Man of whom he may say, “That Man has a power to decide on my death or life.” If we could for a moment forget the advantages of that Institution, we ought at least to admire the ingenuity of it.
[9. ]De Lolme cites Blackstone’s “Of Trial and Conviction” in Commentaries on the Laws of England, book 4, chapter 27. English law, as De Lolme reports, was purposefully asymmetric in treating an acquittal as final but in allowing a new trial in cases of conviction where there was strong reason to believe that the jury had reached a verdict contrary to the evidence.
[10. ]English law, in fact, allowed for several forms of aggravated capital punishment, such as burning, disemboweling, and quartering in cases of high treason, or drawing and hanging or drawing and burning in cases of petit treason.