Front Page Titles (by Subject) CHAPTER XXVII.: OF TRIAL AND CONVICTION. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XXVII.: OF TRIAL AND CONVICTION. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF TRIAL AND CONVICTION.
**342]The several methods of trial and conviction of offenders established by the laws of England were formerly more numerous than at present, through the superstition of our Saxon ancestors; who, like other northern nations, were extremely addicted to divination; a character which Tacitus observes of the antient Germans.(a) They therefore invented a considerable number of methods of purgation or trial to preserve innocence from the danger of false witnesses, and in consequence of a notion that God would always interpose miraculously to vindicate the guiltless.
I. The most antient(b) species of trial was that by ordeal, which was peculiarly distinguished by the appellation of judicium Dei; and sometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two sorts,(c) either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common people.(d) Both these might be performed by deputy; but the principal was to answer for the success of the trial; the deputy only venturing some corporal pain, for hire, or perhaps for friendship.(e) Fire-ordeal was *[*343performed either by taking up in the hand, unhurt, a piece of red-hot iron of one, two, or three pounds’ weight; or else by walking barefoot, and blindfold, over nine red-hot ploughshares laid lengthwise at unequal distances; and if the party escaped being hurt he was adjudged innocent; but if it happened otherwise, as without collusion it usually did, he was then condemned as guilty. However, by this latter method, queen Emma, the mother of Edward the Confessor, is mentioned to have cleared her character when suspected of familiarity with Alwyn, bishop of Winchester.(f)
Water-ordeal was performed either by plunging the bare arm up to the elbow in boiling water, and escaping unhurt thereby, or by casting the person suspected into a river or pond of cold water; and if he floated therein without any action of swimming, it was deemed an evidence of his guilt, but if he sunk he was acquitted. It is easy to trace out the traditional relics of this water-ordeal in the ignorant barbarity still practised in many countries to discover witches by casting them into a pool of water and drowning them to prove their innocence. And in the Eastern empire the fire-ordeal was used to the same purpose by the emperor Theodore Lascaris; who, attributing his sickness to magie, caused all those whom he suspected to handle the hot iron: thus joining (as has been well remarked)(g) to the most dubious crime in the world the most dubious proof of innocence.
And, indeed, this purgation by ordeal seems to have been very antient and very universal in the times of superstitious barbarity. It was known to the antient Greeks: for, in the *[*344Antigone of Sophocles,(h) a person, suspected by Creon of a misdemeanour, declares himself ready “to handle hot iron and to walk over fire,” in order to manifest his innocence, which, the scholiast tells us, was then a very usual purgation. And Grotius(i) gives us many instances of water-ordeal in Bithynia, Sardinia, and other places. There is also a very peculiar species of water-ordeal said to prevail among the Indians on the coast of Malabar, where a person accused of any enormous crime is obliged to swim over a large river abounding with crocodiles, and if he escapes unhurt he is reputed innocent. As, in Siam, besides the usual methods of fire and water ordeal, both parties are sometimes exposed to the fury of a tiger let loose for that purpose, and if the beast spare either, that person is accounted innocent; if neither, both are held to be guilty; but if he spares both, the trial is incomplete, and they proceed to a more certain criterion.(k)
One cannot but be astonished at the folly and impiety of pronouncing a man guilty unless he was cleared by a miracle, and of expecting that all the powers of nature should be suspended by an immediate interposition of Providence to save the innocent whenever it was presumptuously required. And yet in England so late as king John’s time we find grants to the bishops and clergy to use the judicium ferri, aquæ, et ignis.(l) And, both in England and Sweden, the clergy presided at this trial, and it was only performed in the churches or in other consecrated ground; for which Stiernhook(m) gives the reason: “non defuit illis operæ et laboris pretium; semper-enim ab ejusmodi judicio aliquid lucri sacerdotibus obveniebat.” But, to give it its due praise, we find the canon law very early declaring against trial by ordeal, or vulgaris purgatio, as being the fabric of the devil, “cum sit contra præceptum Domini, non tentabis Dominum Deum tuum.”(n) Upon this authority, though the canons *[*345themselves were of no validity in England, it was thought proper (as had been done in Denmark above a century before)(o) to disuse and abolish this trial entirely in our courts of justice by an act of parliament, in 3 Hen. III., according to Sir Edward Coke,(p) or rather by an order of the king in council.(q)
II. Another species of purgation somewhat similar to the former, but probably sprung from a presumptuous abuse of revelation in the ages of dark superstition, was the corsned, or morsel of execration: being a piece of cheese or bread of about an ounce in weight, which was consecrated with a form of exorcism; desiring of the Almighty that it might cause convulsions and paleness, and find no passage, if the man was really guilty; but might turn to health and nourishment if he was innocent;(r) as the water of jealousy among the Jews(s) was, by God’s special appointment, to cause the belly to swell and the thigh to rot, if the woman was guilty of adultery. This corsned was then given to the suspected person, who at the same time also received the holy sacrament;(t) if, indeed, the corsned was not, as some have suspected, the sacramental bread itself, till the subsequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians assure us that Godwin, earl of Kent, in the reign of king Edward the Confessor, abjuring the death of the king’s brother, at last appealed to his corsned, “per buccellam deglutiendam abjuravit,”(u) which stuck in his throat and killed him. This custom has long since been gradually abolished, though the remembrance of it still subsists in certain phrases of abjuration retained among the common people.(w)
**346]However, we cannot but remark, that though in European countries this custom most probably arose from an abuse of revealed religion, yet credulity and superstition will, in all ages and in all climates, produce the same or similar effects. And therefore we shall not be surprised to find that in the kingdom of Pegu there still subsists a trial by the corsned very similar to that of our ancestors, only substituting raw rice instead of bread.(x) And in the kingdom of Monomotapa they have a method of deciding lawsuits equally whimsical and uncertain. The witness for the plaintiff chews the bark of a tree endued with an emetic quality, which, being sufficiently masticated, is then infused in water which is given the defendant to drink. If his stomach rejects it he is condemned; if it stays with him he is absolved, unless the plaintiff will drink some of the same water; and if it stays with him also the suit is left undetermined.(y)
These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which still remains in force, though very rarely in use, owes its introduction among us to the princes of the Norman line. And that is,
III. The trial by battel,1 duel, or single combat; which was another species of presumptuous appeals to Providence, under an expectation that Heaven would unquestionably give the victory to the innocent or injured party. The nature of this trial in cases of civil injury, upon issue joined in a writ of right, was fully discussed in the preceding book;(z) to which I have only to add that the trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal solemnity as that on a writ of right; but with this difference, that there each party might hire a champion, but here they must fight in their proper persons. And therefore, if the **347]appellant or approver be a woman, a priest, an infant, or of the age of sixty, or lame, or blind, he or she may counterplead and refuse the wager of battel, and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London, by special charter, because fighting seems foreign to their education and employment. So likewise if the crime be notorious: as if the thief be taken with the mainour, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battel from the appellee;(a) for it is unreasonable that an innocent man should stake his life against one who is already half convicted.
The form and manner of waging battel upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn.(b) The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the same by his body; the appellant takes up the glove and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand and in his left the right hand of his antagonist, swears to this effect:—“Hoc audi, homo, quem per manum teneo, &c.,” “Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way guilty of the said felony. So help me God and the saints; and this I will defend against thee by my body, as this court shall award.” To which the appellant replies, holding the Bible and his antagonist’s hand in the same manner as the other:—“Hear this, O man, whom I hold by the hand, who callest thyself Thomas by the name of baptism, that thou art perjured; and therefore perjured because that thou feloniously didst murder my *[*348father, William by name. So help me God and the saints; and this I will prove against thee by my body, as this court shall award.”(c) The battel is then to be fought with the same weapons, viz., batons, the same solemnity, and the same oath against amulets and sorcery, that are used in the civil combat; and if the appellee be so far vanquished that he cannot or will not fight any longer, he shall be adjudged to be hanged immediately; and then, as well as if he be killed in battle, Providence is deemed to have determined in favour of the truth, and his blood shall be attainted. But if he kills the appellant, or can maintain the fight from sunrising till the stars appear in the evening, he shall be acquitted. So also, if the appellant becomes recreant, and pronounces the horrible word of craven, he shall lose his liberam legem and become infamous; and the appellee shall recover his damages, and also be forever quit, not only of the appeal, but of all indictments likewise for the same offence.2
IV. The fourth method of trial used in criminal cases is that by the peers of Great Britain, in the court of parliament, or the court of the lord high steward, when a peer is capitally indicted: for in case of an appeal a peer shall be tried by jury.(d)3 Of this enough has been said in a former chapter;(e) to which I shall now only add that, in the method and regulation of its proceedings, it differs little from the trial per patriam, or by jury; except that no special verdict can be given in the trial of a peer,(f) because the lords of parliament, or the lord high steward, (if the trial be *[*349had in his court,) are judges sufficiently competent of the law that may arise from the fact; and except also that the peers need not all agree in their verdict, but the greater number, consisting of twelve at the least, will conclude and bind the minority.(g)
V. The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman which, as the grand bulwark of his liberties, is secured to him by the great charter:(h) “nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terræ.”
The antiquity and excellence of this trial for the settling of civil property has before been explained at large.(i) And it will hold much stronger in criminal cases; since in times of difficulty and danger more is to be apprehended from the violence and partiality of judges appointed by the crown in suits between the king and the subject than in disputes between one individual and another to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince; and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, despatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have with excellent forecast contrived that no man should be called to answer to the king for any capital crime unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of an indictment, information, or appeal, **350]should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And, however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern.
What was said of juries in general, and the trial thereby in civil cases, will greatly shorten our present remarks with regard to the trial of criminal suits; indictments, informations, and appeals; which trial I shall consider in the same method that I did the former: by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it.
When, therefore, a prisoner on his arraignment hath pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines, de vicineto; that is, freeholders, without just exception, and of the visne or neighbourhood; which is interpreted to be of the county where the fact is committed.(j) If the proceedings are before the court of king’s bench, there is time allowed, between the assignment and the trial, for a jury to be **351]impanelled by a writ of venire facias to the sheriff, as in civil causes; and the trial in case of a misdemeanour is had at nisi prius, unless it be of such consequence as to merit a trial at bar; which is always invariably had when the prisoner is tried for any capital offence. But before commissioners of oyer and terminer and gaol-delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of forty-eight jurors, to try all felons that may be called upon their trial at that session; and therefore it is there usual to try all felons immediately or soon after their arraignment. But it is not customary, nor agreeable to the general course of proceedings, (unless by consent of parties, or where the defendant is actually in gaol,) to try persons indicted of smaller misdemeanours at the same court in which they have pleaded not guilty or traversed the indictment. But they usually give security to the court to appear at the next assizes or session, and then and there to try the traverse, giving notice to the prosecutor of the same.4
In cases of high treason, whereby corruption of blood may ensue, (except treason in counterfeiting the king’s coin or seals,) or misprision of such treason, it is enacted, by statute 7 W. III. c. 3, first, that no person shall be tried for any such treason, except an attempt to assassinate the king, unless the indictment be found within three years after the offence committed; next, that the prisoner shall have a copy of the indictment, (which includes the caption,)(k) but not the names of the witnesses, five days at least before the trial; that is, upon the true construction of the act, before his arraignment,(l) for then is the time to take any exceptions thereto by way of plea or demurrer; thirdly, that he shall also have a copy of the panel of jurors two days before his trial; and, lastly, that he shall have the same compulsive process to bring in his witnesses for him as was usual to compel their appearance against him. And, by statute 7 Anne, c. 21, (which did not take place till after the decease of the late pretender,) all persons indicted for high treason or misprision *[*352thereof shall have not only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impanelled, with their professions and places of abode, delivered to him ten days before the trial, and in the presence of two witnesses, the better to prepare him to make his challenges and defence. But this last act, so far as it affected indictments for the inferior species of high treason, respecting the coin and the royal seals, is repealed by the statute 6 Geo. III. c. 53, else it had been impossible to have tried those offences in the same circuit in which they are indicted: for ten clear days between the finding and the trial of the indictment will exceed the time usually allotted for any session of oyer and terminer.(m)5 And no person indicted for felony is, or (as the law stands) ever can be, entitled to such copies before the time of his trial.(n)
When the trial is called on, the jurors are to be sworn, as they appear, to the number of twelve, unless they are challenged by the party.6
Challenges may here be made, either on the part of the king, or on that of the prisoner, and either to the whole array, or to the separate polls, for the very same reasons that they may be made in civil causes.(o) For it is here at least as necessary, as there, that the sheriff or returning officer be totally indifferent; that where an alien is indicted the jury should be de medietate, or half foreigners, if so many are found in the place,7 (which does not indeed hold in treasons,(p) aliens being very improper judges of the breach of allegiance;8 nor yet in the case of Egyptians9 under the statute 22 Hen. VIII. c. 10;) that on every panel there should be a competent number of hundredors;10 and that the particular jurors should be omni exceptione majores,—not liable to objection either propter honoris respectum, propter defectum, propter affectum, or propter delictum. *[*353Challenges upon any of the foregoing accounts are styled challenges for cause, which may be without stint in both criminal and civil trials. But in criminal cases, or at least in capital ones, there is, in favorem vitæ, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous.11 This is grounded on two reasons. 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside.
This privilege of peremptory challenges, though granted to the prisoner, is denied to the king by the statute 33 Edw. I. st. 4, which enacts that the king shall challenge no jurors without assigning a cause certain, to be tried and approved by the court. However, it is held that the king need not assign his cause of challenge till all the panel is gone through, and unless there cannot be a full jury without the person so challenged; and then, and not sooner, the king’s counsel must show the cause, otherwise the juror shall be sworn.(q)12
The peremptory challenges of the prisoner must, however, have some reasonable boundary; otherwise he might never *[*354be tried. This reasonable boundary is settled by the common law to be the number of thirty-five; that is, one under the number of three full juries. For the law judges that five-and-thirty are fully sufficient to allow the most timorous man to challenge through mere caprice; and that he who peremptorily challenges a greater number, or three full juries, has no intention to be tried at all. And therefore it dealt with one who peremptorily challenges above thirty-five, and will not retract his challenge, as with one who stands mute or refuses his trial, by sentencing him to the peine forte et dure in felony, and by attainting him in treason.(r) And so the law stands at this day with regard to treason of any kind.
But by statute 22 Hen. VIII. c. 14, (which, with regard to felonies, stands unrepealed by statute 1 & 2 Ph. and M. c. 10,) by this statute, I say, no person arraigned for felony can be admitted to make any more than twenty peremptory challenges. But how if the prisoner will peremptorily challenge twenty-one? what shall be done? The old opinion was, that judgment of peine forte et dure should be given, as where he challenged thirty-six at the common law;(s) but the better opinion seems to be(t) that such challenge shall only be disregarded and overruled. Because, first, the common law doth not inflict the judgment of penance for challenging twenty-one, neither doth the statute inflict it; and so heavy a judgment (or that of conviction, which succeeds it) shall not be imposed by implication. Secondly, the words of the statute are, “that he be not admitted to challenge more than twenty;” the evident construction of which is, that any further challenge shall be disallowed or prevented; and therefore, being null from the beginning, and never in fact a challenge, it can subject the prisoner to no punishment; but the juror shall be regularly sworn.13
If, by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales **355]may be awarded as in civil causes,(u) till the number of twelve is sworn, “well and truly to try, and true deliverance make, between our sovereign lord the king and the prisoner whom they have in charge; and a true verdict to give according to their evidence.”
When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshalled, examined, and enforced, by the counsel for the crown or prosecution. But it is a settled rule at common law that no counsel shall be allowed a prisoner upon his trial, upon the general issue in any capital crime, unless some point of law shall arise proper to be debated.(w) A rule which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular)(x) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man which yet is allowed him in prosecutions for every petty trespass? Nor indeed is it, strictly speaking, a part of our antient law; for the Mirror,(y) having observed the necessity of counsel in civil suits, “who know how to forward and defend the cause, by the rules of law and customs of the realm,” immediately afterwards subjoins, “and more necessary are they for defence upon indictments and appeals of felony than upon other venial causes.”(z)14 And the judges themselves are so sensible of this defect that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to *[*356ask questions for him, with respect to matters of fact; for as to matters of law arising on the trial, they are entitled to the assistance of counsel. But, lest this indulgence should be intercepted by superior influence in the case of state-criminals, the legislature has directed, by statute 7 W. III. c. 3, that persons indicted for such high treason as works a corruption of the blood, or misprision thereof, (except treason in counterfeiting the king’s coin or seals,) may make their full defence by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge: and the same indulgence, by statute 20 Geo. II. c. 30, is extended to parliamentary impeachments for high treason which were excepted in the former act.15
The doctrine of evidence upon pleas of the crown is in most respects the same as that upon civil actions. There are, however, a few leading points wherein, by several statutes and resolutions, a difference is made between civil and criminal evidence.
First, in all cases of high treason, petit treason, and misprision of treason, by statutes 1 Edw. VI. c. 12, and 5 & 6 Edw. VI. c. 11, two lawful witnesses are required to convict a prisoner; unless he shall willingly and without violence confess the same. By statute 1 & 2 Ph. and M. c. 10, a further exception is made to treasons in counterfeiting the king’s seals or signatures, and treasons concerning coin current within this realm: and more particularly, by c. 11, the offences of importing counterfeit foreign money current in this kingdom, and impairing, counterfeiting, or forging any current coin. The statutes 8 & 9 W. III. c. 25, and 15 & **357]16 Geo. II. c. 28, in their subsequent extensions of this species of treason, do also provide that the offenders may be indicted, arraigned, tried, convicted, and attainted by the like evidence and in such manner and form as may be had and used against offenders for counterfeiting the king’s money. But, by statute 7 W. III. c. 3, in prosecutions for those treasons to which that act extends, the same rule (of requiring two witnesses) is again enforced; with this addition, that the confession of the prisoner, which shall countervail the necessity of such proof, must be in open court. In the construction of which act, it hath been holden(a) that a confession of the prisoner taken out of court, before a magistrate or person having competent authority to take it, and proved by two witnesses, is sufficient to convict him of treason. But hasty, unguarded confessions, made to persons having no such authority, ought not to be admitted as evidence under this statute. And indeed, even in cases of felony at the common law, they are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence.16 By the same statute, 7 W. III., it is declared that both witnesses must be to the same overt act of treason, or one to one overt act and the other to another overt act, of the same species of treason,(b) and not of distinct heads or kinds; and no evidence shall be admitted to prove any overt act not expressly laid in the indictment.17 And therefore, in Sir John Fenwick’s case, in king William’s time, where there was but one witness, an act of parliament(c) was made on purpose to attaint him of treason, and he was executed.(d) But in almost every other accusation one positive witness is sufficient. Baron Montesquieu lays it down for a rule(e) that those laws which condemn a man to death in any case, on the deposition of a single witness, are fatal to liberty; and he adds this reason, that the witness who affirms, and the accused who denies, make an equal balance:(f) there is a necessity therefore to call *[*358in a third man to incline the scale. But this seems to be carrying matters too far; for there are some crimes in which the very privacy of their nature excludes the possibility of having more than one witness: must these, therefore, escape unpunished? Neither indeed is the bare denial of the person accused equivalent to the positive oath of a disinterested witness. In cases of indictments for perjury this doctrine is better founded; and there our law adopts it: for one witness is not allowed to convict a man for perjury; because then there is only one oath against another.(g) In cases of treason also there is the accused’s oath of allegiance to counterpoise the information of a single witness; and that may perhaps be one reason why the law requires a double testimony to convict him; though the principal reason undoubtedly is to secure the subject from being sacrificed to fictitious conspiracies, which have been the engines of profligate and crafty politicians in all ages.
Secondly, though from the reversal of colonel Sidney’s attainder by act of parliament, in 1689,(h) it may be collected(i) that the mere similitude of handwriting in two papers shown to a jury, without other concurrent testimony, is no evidence that both were written by the same person; yet undoubtedly the testimony of witnesses, well acquainted with the party’s hand, that they believe the paper in question to have been written by him, is evidence to be left to a jury.(j)18
Thirdly, by the statute 21 Jac. I. c. 27, a mother of a bastard child, concealing its death, must prove by one witness that the child was born dead; otherwise such concealment shall be evidence of her having murdered it.(k)19
Fourthly, all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer. *[*359And Sir Matthew Hale in particular(l) lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead; on account of two instances he mentions where persons were executed for the murder of others who were then alive but missing.
Lastly, it was an antient and commonly-received practice(m) (derived from the civil law, and which also to this day obtains in the kingdom of France)(n) that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses. And therefore it deserves to be remembered to the honour of Mary I., (whose early sentiments, till her marriage with Philip of Spain, seem to have been humane and generous,)(o) that when she appointed Sir Richard Morgan chief justice of the common pleas she enjoined him, “that notwithstanding the old error, which did not admit any witness to speak, or any other matter to be heard, in favour of the adversary, her majesty being party; her highness’s pleasure was that whatsoever could be brought in favour of the subject should be admitted to be heard, and, moreover, that the justices should not persuade themselves to sit in judgment otherwise for her highness than for her subject.”(p) Afterwards, in one particular instance, (when embezzling the queen’s military stores was made felony by statute 31 Eliz. c. 4,) it was provided that any person impeached for such felony “should be received and admitted to make any lawful proof that he could, by lawful witness or otherwise, for his discharge and defence;” and in general the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive that a practice was **360]gradually introduced of examining witnesses for the prisoner, but not upon oath;(q) the consequence of which still was, that the jury gave less credit to the prisoner’s evidence than to that produced by the crown. Sir Edward Coke(r) protests very strongly against this tyrannical practice; declaring that he never read in any act of parliament, book-case, or record, that in criminal cases the party accused should not have witnesses sworn for him, and therefore there was not so much as scintilla juris against it.(s) And the house of commons were so sensible of this absurdity that, in the bill for abolishing hostilities between England and Scotland,(t) when felonies committed by Englishmen in Scotland were ordered to be tried in one of the three northern counties, they insisted on a clause, and carried it(u) against the efforts of both the crown and the house of lords, against the practice of the courts in England, and the express law of Scotland,(w) “that in all such trials, for the better discovery of the truth, and the better information of the consciences of the jury and justices, there shall be allowed to the party arraigned the benefit of such credible witnesses to be examined upon oath as can be produced for his clearing and justification.” At length, by the statute 7 W. III. c. 3, the same measure of justice was established throughout all the realm in cases of treason within the act: and it was afterwards declared, by statute 1 Anne, s. 2, c. 9, that in all cases of treason and felony all witnesses for the prisoner should be examined upon oath, in like manner as the witnesses against him.
When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged (unless in cases of evident necessity)(x) till they have given in their verdict;20 but are to consider of it, and deliver it in, with the same forms as upon civil causes; only they cannot, in a criminal case which touches life or member, give a privy verdict.(y) But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court.(z) And such public or open verdict may be either general, guilty, or not guilty; **361]or special, setting forth all the circumstances of the case and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances and finding a general verdict, if they think proper so to hazard a breach of their oaths: and if their verdict be notoriously wrong, they may be punished and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner.(a) But the practice heretofore in use of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the judge, was arbitrary, unconstitutional, and illegal, and is treated as such by Sir Thomas Smith two hundred years ago; who accounted “such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England.”(b) For, as Sir Matthew Hale well observes,(c) it would be a most unhappy case for the judge himself if the prisoner’s fate depended upon his directions: unhappy also for the prisoner; for, if the judge’s opinion must rule the verdict, the trial by jury would be useless. Yet in many instances(d) where, contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside and a new trial granted by the court of king’s bench; for in such case, as hath been said, it cannot be set right by attaint. But there hath yet been no instance of granting a new trial where the prisoner was acquitted upon the first.(c)21
If the jury therefore find the prisoner not guilty, he is then forever qui and discharged of the accusation,(d) except he be appealed of felony within the time limited by law. And upon such his acquittal, or discharge for want of *[*362prosecution, he shall be immediately set at large without payment of any fee to the gaoler.(e) But if the jury find him guilty,(f) he is then said to be convicted of the crime whereof he stands indicted; which conviction may accrue two ways,—either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country.
When the offender is thus convicted, there are two collateral circumstances that immediately arise. 1. On a conviction (or even upon an acquittal where there was a reasonable ground to prosecute, and in fact a bona fide prosecution) for any grand or petit larceny or other felony, the reasonable expenses of prosecution, and also, if the prosecutor be poor, a compensation for his trouble and loss of time, are, by statutes 25 Geo. II. c. 36 and 18 Geo. III. c. 19, to be allowed him out of the county stock, if he petitions the judge for that purpose; and by statute 27 Geo. II. c. 3, explained by the same statute, (18 Geo. III. c. 19,) all persons appearing upon recognizance or subpœna to give evidence, whether any indictment be preferred or no, and as well without conviction as with it, are entitled to be paid their charges, with a further allowance (if poor) for their trouble and loss of time.22 2. On a conviction of larceny in particular, the prosecutor shall have restitution of his goods, by virtue of the statute 21 Hen. VIII. c. 11.23 For by the common law there was no restitution of goods upon an indictment, because it is at the suit of the king only; and therefore the party was enforced to bring an appeal of robbery, in order to have his goods again.(g) But, it being considered that the party prosecuting the offender by indictment deserves to the full as much encouragement as he who prosecutes by appeal, this statute was made, which enacts that if any person be convicted of larceny by the evidence of the party robbed, he shall have full restitution of his money, goods, and chattels, or the value of them out of the offender’s goods, if he has any, by a writ to be granted by the justices. And, the construction of this act having been in great measure conformable to the law of appeals, it has therefore in practice superseded the use of appeals in larceny. For instance: as formerly upon appeals,(h) so now upon indictments of larceny, this writ of restitution **363]shall reach the goods so stolen, notwithstanding the property(i) of them is endeavoured to be altered by sale in marketovert.(k) And though this may seem somewhat hard upon the buyer, yet the rule of law is that “spoliatus debet, ante omnia, restitui,” especially when he has used all the diligence in his power to convict the felon. And, since the case is reduced to this hard necessity, that either the owner or the buyer must suffer, the law prefers the right of the owner, who has done a meritorious act by pursuing a felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction.24 And it is now usual for the court, upon the conviction of a felon, to order, without any writ, immediate restitution of such goods as are brought into court to be made to the several prosecutors. Or else, secondly, without such writ of restitution, the party may peaceably retake his goods, wherever he happens to find them,(l) unless a new property be fairly acquired therein. Or, lastly, if the felon be convicted and pardoned, or be allowed his clergy, the party robbed may bring his action of trover against him for his goods and recover a satisfaction in damages. But such action lies not before prosecution, for so felonies would be made up and healed;(m) and also recaption is unlawful, if it be done with intention to smother or compound the larceny, it then becoming the heinous offence of theft-bote, as was mentioned in a former chapter.(n)
It is not uncommon when a person is convicted of a misdemeanour which principally and more immediately affects some individual, as a battery, imprisonment, or the like, for the court to permit the defendant to speak with the prosecutor **364]before any judgment is pronounced, and, if the prosecutor declares himself satisfied, to inflict but a trivial punishment. This is done to reimburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil action. But it surely is a dangerous practice; and, though it may be intrusted to the prudence and discretion of the judges in the superior courts of record, it ought never to be allowed in local or inferior jurisdictions, such as the quarter sessions, where prosecutions for assaults are by this means too frequently commenced rather for private lucre than for the great ends of public justice. Above all, it should never be suffered where the testimony of the prosecutor himself is necessary to convict the defendant, for by this means the rules of evidence are entirely subverted: the prosecutor becomes in effect a plaintiff, and yet is suffered to bear witness for himself. Nay, even a voluntary forgiveness by the party injured ought not in true policy to intercept the stroke of justice. “This,” says an elegant writer,(o) who pleads with equal strength for the certainty as for the lenity of punishment, “may be an act of good nature and humanity, but it is contrary to the good of the public. For, although a private citizen may dispense with satisfaction for his private injury, he cannot remove the necessity of public example. The right of punishing belongs not to any one individual in particular, but to the society in general, or the sovereign who represents that society: and a man may renounce his own portion of this right, but he cannot give up that of others.”
[(a) ]De Mor. Germ. 10.
[(b) ]LL. Inæ, 3, c. 77.
[(c) ] Mirr. c. 3, 23.
[(d) ]Tenetur se purgare is qui accusatur, per Dei judicium; scilicet per calidum ferrum vel per aquam, pro diversitate onditionis hominum: per ferrum calidum, si fuerit homo liber; per aquam si fuerit rusticus. Glanv. l. 14, c. 1.
[(e) ] This is still expressed in that common form of speech, “of going through fire and water to serve another.”
[(f) ] Tho Rudborne, Hist. Maj. Winton, l. 4, c. 1.
[(g) ] Sp. L. b. xii. c. 5.
[(h) ] V. 270.
[(i) ] On Numb. v. 17.
[(k) ] Mod. Un. Hist. vii. 266.
[(l) ] Spelm. Gloss. 435.
[(m) ]De jure Sueonum, l. 1, c. 8.
[(n) ]Decretal, part 2, caus. 2, qu. 5, dist. 7. Decretal, [Editor: illegible character] tit. 50, c. 9, and Gloss. ibid.
[(o) ] Mod. Un. Hist. xxxii. 105.
[(p) ] 9 Rep. 32.
[(q) ] 1 Rym. Fæd. 228. Spelm. Gloss. 326. 2 Pryn. Rec. Append. 20. Seld. Eadm. fol. 48.
[(r) ] Spelm. Gloss. 439.
[(s) ] Numb. ch. v.
[(t) ]LL. Canut. c. 6.
[(u) ] Ingulph.
[(w) ] As, “I will take the sacrament upon it; may this morsel be my last;” and the like.
[(x) ] Mod. Un. Hist. vii. 129.
[(y) ] Ibid. xv. 464.
[1 ] This species of trial is now entirely abolished, by the 59 Geo. III. c. 46. See 1 B. & A. 405.—Chitty.
[(z) ] See book iii. page 337.
[(a) ] 2 Hawk. P. C. 427.
[(b) ] Flet. l. 1, c. 34. 2 Hawk. P. C. 426.
[(c) ] There is a striking resemblance between this process and that of the court of Areopagus at Athens for murder, wherein the prosecutor and prisoner were both sworn in the most solemn manner; the prosecutor, that he was related to the deceased, (for none but near relations were permitted to prosecute in that court,) and that the prisoner was the cause of his death: the prisoner, that he was innocent of the charge against him. Pott. Antiq. b. i. c. 19.
[2 ] The last time that the trial by battel was awarded in this country was in the case of lord Rae and Mr. Ramsay, in the 7 Ch. I. The king, by his commission, appointed a constable of England to preside at the trial, who proclaimed a day for the duel, on which the combatants were to appear with a spear, a long sword, a short sword, and a dagger but the combat was prorogued to a further day, before which the king revoked the commission. See an account of the proceedings, 11 Harg. St. Tr. 124. See also 3 book, 337.—Christian.
[(d) ] 9 Rep. 30. 2 Inst. 49.
[3 ] The nobility are tried by their peers for treason and felony, and misprision of these: but in all other criminal prosecutions they are tried, like commoners, by a jury. 3 Inst. 30. See 1 book, 401, note 11.—Christian.
[(e) ] See page 259.
[(f) ] Hatt. 116.
[(g) ] Kelynge, 56, stat. 7 W. III. c. 3, 11. Foster, 247.
[(h) ] 9 Hen. III. c. 29.
[(i) ] See book iii. page 379.
[(j) ] 2 Hal. P. C. 264. 2 Hawk. T. C. 403.
[4 ] Now, by the 60 Geo. III. and 1 Geo. IV. c. 4, s. 3, if the defendant has been committed to custody, or held to bail for a misdemeanour, twenty days before the session of the peace, session of oyer and terminer, great session, or session of gaol-delivery at which the indictment was found, the defendant shall plead and the trial shall take place at such session, unless a writ of certiorari be awarded. And, by sect. 5, where a defendant indicted for a misdemeanour at any session of the peace, session of oyer and terminer, great session, or session of gaol-delivery, not having been committed to custody, or held to bail to appear to answer for such offence, twenty days before the session at which the indictment was found, but who shall have been committed to custody, or held to bail to appear to answer for such offence, at some subsequent session, or shall have received notice of such indictment having been found, twenty days before such subsequent session, he shall plead at such subsequent session, and trial shall take place at such session, unless a certiorari be awarded before the jury be sworn for such trial. But, on sufficient cause shown, the court may allow further time for trial. Id. s. 7. In cases of indictments for obtaining goods, &c. by false pretences, and sending threatening letters with intent to extort money, &c., and other misdemeanours punishable under the 30 Geo. III. c. 24, it is enacted by that act (sect. 17) that every such offender, bound over to the general quarter-sessions of the peace, or sessions of oyer and terminer and gaol-delivery of the county where the offence was committed, shall be tried at such general quarter-sessions of the peace, or sessions of oyer and terminer and gaol-delivery, which shall be held next after his apprehension, unless the court shall think fit to put off the trial, on just cause made out to them. So also, by the 39 & 40 Geo. III. c. 87, s. 22, persons indicted for a misdemeanour in receiving stolen goods, under the 2 Geo. III. c. 28, are to be tried immediately, without being allowed the delay of a traverse. 2 East, P. C. 754. As to traverses in general, in criminal proceedings, see 1 Chitt. C. I. 486.—Chitty.
[(k) ] Fost. 229. Append. i.
[(l) ] Ibid. 230.
[(m) ] Fost. 250.
[5 ] By 39 & 40 Geo. III. c. 93, in all cases of high treason in compassing or imagining the death of the king, and of misprision of such treason, where the overt act alleged in the indictment is the assassination of the king or a direct attempt against his life or person, the party accused shall be indicted and tried in the same manner and upon the like evidence as if charged with murder. But the judgment and execution shall remain the same as in other cases of high treason. And, by 6 Geo. IV. c. 50, s. 21, when any person is indicted for high treason or misprision of treason, in any court except King’s Bench, a list of the petit jury, with their names, professions, and places of abode, shall be given at the same time that the copy of the indictment is delivered to the party indicted, which shall be ten days before arraignment, and in the presence of two or more credible witnesses; and when any person is so indicted in King’s Bench, a copy of the indictment shall be delivered as before mentioned; but the list of the petit jury, made out as before mentioned, may be delivered to the party indicted, after arraignment, so that it be ten days before trial. Proviso, not to extend to interfere with the provisions of 39 & 40 Geo. IV. c. 93, nor to cases of treason relating to the coin.
Where the jury-panel is incorrect, a motion may be made on the part of the crown, in the court of gaol-delivery, for leave to the sheriff to amend the panel. 1 East, P. C. 113.—Chitty.
[(n) ] 2 Hawk. P. C. 410.
[6 ] By 6 Geo. IV. c. 50, s. 27, if any man shall be returned as a juror for the trial of any issue in any of the courts in the act mentioned who shall not be qualified according to the act, the want of such qualification shall be good cause of challenge, and he shall be discharged upon such challenge, if the court shall be satisfied of the fact; and if any man returned as a juror for the trial of any such issue shall be qualified in other respects according to the act, the want of freehold shall not on such trial, in any case, civil or criminal, be accepted as good cause of challenge, either by the crown or the party, nor as cause for discharging the man so returned upon his own application. Proviso, not to extend to any special juror.
By sect. 28, no challenge shall be taken to any panel of jurors for want of a knight being returned in such panel, nor any array quashed by reason of any such challenge.
By sect. 29, in all inquests to be taken before any of the courts in the act mentioned wherein the king is a party, howsoever it be, notwithstanding it be alleged by them that sue for the king that the jurors of those inquests, or some of them, be not indifferent for the king; yet such inquests shall not remain untaken for that cause; but if they that sue for the king will challenge any of those jurors, they shall assign of their challenge a cause certain, and the truth of the same challenge shall be inquired of according to the custom of the court; and it shall be proceeded to the taking of the same inquisition, as it shall be found, if the challenges be true or not, after the discretion of the court; and no person arraigned for murder or felony shall be admitted to any peremptory challenge above the number of twenty.
And, by 7 & 8 Geo. IV. c. 28, s. 3, if any person indicted for any treason, felony, or piracy shall challenge peremptorily a greater number of the men returned to be of the jury than such person is entitled by law so to challenge in any of the said cases, every peremptory challenge beyond the number allowed by law in any of the said cases shall be entirely void, and the trial of such person shall proceed as if no such challenge had been made.—Chitty.
[(o) ] See book iii. page 359.
[7 ] The 6 Geo. IV. c. 50, s. 47 provides that nothing in that act contained shall extend or be construed to extend to deprive any alien indicted or impeached of any felony or misdemeanour of the right of being tried by a jury de medietate linguæ, but that, on the prayer of every alien so indicted or impeached, the sheriff, or other proper minister, shall, by command of the court, return for one-half of the jury a competent number of aliens, if so many there be in the town or place where the trial is had, and if not, then so many aliens as shall be found in the same town or place, if any; and that no such alien juror shall be liable to be challenged for want of freehold or of any other qualification required by the act, but every such alien may be challenged for any other cause, in like manner as if he were qualified by the act.—Chitty.
[(p) ] 2 Hawk. P. C. 420. 2 Hal. P. C. 271.
[8 ] The privilege is taken away from persons indicted of high treason by the 1 & 2 Ph. and M. c. 10, which directs that all trials for that offence shall take place as at common law.—Chitty.
[9 ] The 28 Edw. III. c. 13, on which this right of aliens was founded, was repealed, as to Egyptians, by the 1 & 2 Ph. and M. c. 4, s. 3 and the 5 Eliz. c. 20, which enacted that they should be tried by the inhabitants of the county where they were arrested, and not per medietatem linguæ; but that provision was repealed by the 23 Geo. III. c. 51; and Egyptians are now dealt with under the vagrant acts as rogues and vagabonds.—Chitty.
[10 ] The right to challenge for want of hundredors is now taken away, by the 6 Geo. IV. c. 50, s. 13.—Chitty.
[11 ] A peremptory challenge is not allowed in the trial of collateral issues, (Fost. 42,) nor in any trial for a misdemeanour. 2 Harg. St. Tr. 808, and 4 Harg. St. Tr. 1.—Christian.
[(q) ] 2 Hawk. P. C. 413. 2 Hal. P. C. 271.
[12 ] And the practice is the same both in trials for misdemeanours and for capital offences 3 Harg. St. Tr. 519. Where there is a challenge for cause, two persons in court not of the jury are sworn to try whether the juryman challenged will try the prisoner indifferently. Evidence is then produced to support the challenge, and, according to the verdict of the two tryers, the juryman is admitted or rejected. A juryman was thus set aside in O’Coigley’s trial for treason, because, upon looking at the prisoners, he had uttered the words “damned rascals.” See O’Coigley’s Trial.—Christian.
[(r) ] 2 Hal. P. C. 268.
[(s) ] 2 Hawk. P. C. 414.
[(t) ] 3 Inst. 227. 2 Hal. P. C. 270.
[13 ] Now the statute 7 & 8 Geo. IV. c. 28, s. 3 has put an end to all doubt on the point, by enacting that every peremptory challenge beyond the number allowed by law shall be entirely void, and the trial of the offender shall proceed as if no such challenge had been made.—Stewart.
[(u) ] See book iii. page 364. But in mere commissions of gaol-delivery no tales can be awarded, though the court may ore tenus order a new panel to be returned instanter. 4 Inst. 68. 4 St. Tr. 728. Cooke’s case.
[(w) ] 2 Hawk. P. C. 400.
[(x) ] Sir Edward Coke (3 Inst. 137) gives another additional reason for this refusal,—“because the evidence to convict a prisoner should be so manifest as it could not be contradicted;” which lord Nottingham (when high steward) declared (3 St. Tr. 726) was the only good reason that could be given for it.
[(y) ] C. 3, 1.
[(z) ] Father Parsons the Jesuit, and after him bishop Ellys, (of English Liberty, ii. 66,) have imagined that the benefit of counsel to plead for them was first denied to prisoners by a law of Hen. I., meaning. I presume, chapters 47 and 48 of the code which is usually attributed to that prince. “De causis criminalibus vel capitalibus nemo quærat consilium: quin implacitatus statim perneget, sine omni petitione consilii. In aliis omnibus potest et debet uti consilio.” But this consilium, I conceive, signifies only an imparlance, and the petitio consilii is craving leave to imparl, (see book iii. page 298,) which is not allowable in any criminal prosecution. This will be manifest by comparing this law with a contemporary passage in the grand coustumier of Normandy, (ch. 85,) which speaks of imparlances in personal actions. “Apres ce, est tenu le querelle a respondre; et aura congie de soy conseiller, s’il le demande; et quand il sera conseille, il peut nyer le faict dont ill est accuse.” Or, as it stands in the Latin text, (edit 1539,) “Querelatus autem postea tenetur respondere; et habebit licentiam consulendi, si requirat; habito autem consilio, debet factum negare quo accusatus est.”
[14 ] The prisoner is not allowed counsel to plead his cause before the jury in any felony, whether it is capital, or within the benefit of clergy; nor in a case of petty larceny. But in misdemeanours the prisoner or defendant is allowed counsel as in civil actions, but even here the defendant cannot have the assistance of counsel to examine the witnesses and reserve to himself the right of addressing the jury. 1 Ry. & M. C. C. 166. 3 Camp. 98.
The maxim that the judge is counsel for the prisoner signified nothing more than that the judge shall take care that the prisoner does not suffer from the want of counsel. The judge is counsel only for public justice, and to promote that object alone all his inquiries and attention ought to be directed. Upon a trial for the murder of a male child, the counsel for the prosecution concluded his case without asking the sex of the child; and the judge would not permit him afterwards to call a witness to prove it, but, in consequence of the omission, he directed the jury to acquit the prisoner. But, to the honour of that judge, it ought to be stated that he declared afterwards in private his regret for his conduct. This case is well remembered; but it ought never to be cited but with reprobation.—Christian.
[15 ] And see further, as to the allowance and assigning of counsel, 1 Chitt. C. L. 2d ed. 407 to 411.—Chitty.
Upon the trial of issues which do not turn upon the question of guilty or not guilty, but upon collateral facts, prisoners under a capital charge, whether for treason or felony, always were entitled to the full assistance of counsel. Fost. 232, 242.
It is very extraordinary that the law of England should have denied the assistance of counsel when it is wanted most,—viz., to defend the life, the honour, and all the property of an individual. It is the extension of that maxim of natural equity, that every one shall be heard in his own cause, that warrants the admission of hired advocates in courts of justice; for there is much greater inequality in the powers of explanation and persuasion in the natural state of the human mind than when it is improved by education and experience. Among professional men of established character, the difference in their skill and management is generally so inconsiderable that the decision of the cause depends only upon the superiority of the justice in the respective cases of the litigating parties. Hence the practice of an advocate is absolutely necessary to the administration of substantial justice. An honourable barrister will never misstate either law or facts within his own knowledge; but he is justified in urging any argument, whatever may be his own opinion of the solidity or justness of it, which he may think will promote the interests of his client; for reasoning in courts of justice and in the ordinary affairs of life seldom admits of geometrical demonstration; but it happens not unfrequently that the same argument which appears sophistry to one is sound logic in the mind of another; and every day’s experience proves that the opinions of a judge and an advocate are often diametrically opposite. Many circumstances may occur which will justify or compel an individual member of the profession to refuse the defence of a particular client; but a cause can hardly be conceived which ought to be rejected by all the bar; for such a conduct in the profession would excite so strong a prejudice against the party as to render him in a great degree condemned before his trial. Let the circumstances against a prisoner be ever so atrocious, it is still the duty of the advocate to see that his client is convicted according to those rules and forms which the wisdom of the legislature has established as the best protection of the liberty and the security of the subject. But the conduct of counsel in the prosecution of criminals ought to be very different from that which is required from them in civil actions or when they are engaged on the side of a prisoner: in the latter cases they are the advocates of their client only, and speak but by his instruction and permission; in the former they are the advocates of public justice, or, to speak more professionally, they are the advocates of the king, who in all criminal prosecutions is the representative of the people: and both the king and the country must be better satisfied with the acquittal of the innocent than with the conviction of the guilty. Hence in all criminal prosecutions, especially where the prisoner can have no counsel to plead for him, a barrister is as much bound to disclose all those circumstances to the jury, and to reason upon them as fully, which are favourable to the prisoner, as those which are likely to support the prosecution.
When this note was written, the editor was not aware that the general observations contained in it were sanctioned by so great authorities as Cicero and Panætius. Cicero makes the distinction that it is the duty of the judge to pursue the truth, but it is permitted to an advocate to urge what has only the semblance of it. He says he would not have ventured himself to have advanced this (especially when he was writing upon philosophy) if it had not also been the opinion of the gravest of the stoics, Panætius. “Judicis est semper in causis verum sequi; patroni nonnunquam verisimile, etiam si minus sit verum defendere: quod scribere (præsertim cum de philosophiâ scriberem) non auderem, nisi idem placeret gravissimo stoicorum Panætio.” Cic. de Off. lib. 2, c. 14.—Christian.
And now this valuable privilege has been extended to all persons accused of felony, by stat. 6 & 7 W. IV. c. 114, by which it is enacted that all persons tried for felonies shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto, by counsel learned in the law, or by attorneys in courts where attorneys practise as counsel.—Stewart.
[(a) ] Fost. 240-244.
[16 ] It seems to be now clearly established that a free and voluntary confession by a person accused of an offence, whether made before his apprehension or after, whether on a judicial examination or after commitment, whether reduced into writing or not,—in short, that any voluntary confession made by a prisoner to any person, at any time or place,—is strong evidence against him, and, if satisfactorily proved, sufficient to convict without any corroborating circumstance. But the confession must be voluntary, not obtained by improper influence, nor drawn from the prisoner by means of a threat or promise; for, however slight the promise or threat may have been, a confession so obtained cannot be received in evidence, on account of the uncertainty and doubt whether it was not made rather from a motive of fear or of interest than from a sense of guilt. Phil. Ev. 86. The prisoner’s statement must not be taken upon oath, and, if he has been sworn, it cannot be received in evidence. A confession is evidence only against the person confessing,—not against others, although they are proved to be his accomplices. See Phil. Ev. c. 5, s. 5, and the authorities there collected on this subject.—Chitty.
[(b) ] See St. Tr. ii. 144. Foster. 235.
[17 ] By 5 & 6 Vict. c. 51, where the overt act is an attempt to injure the person of the sovereign, a conviction may be had on the same evidence as if the prisoner were charged with murder: so that in this case two witnesses are not required.—Stewart.
[(c) ] Stat. 8 W. III. c. 4.
[(d) ] St. Tr. v. 40.
[(e) ] Sp. L. b. xii. c. 3.
[(f) ] Beccar. c. 13.
[(g) ] 10 Mod. 194.
[(h) ] St. Tr. viii. 472.
[(i) ] 2 Hawk. P. C. 431.
[(j) ] Lord Preston’s case, ad 1690. St. Tr. iv. 453. Francis’s case, ad 1716. St. Tr. vi. 69. Layer’s case, ad 1722. Ibid. 279. Henzey’s case, ad 1758. 4 Burr. 644.
[18 ] But the proof of handwriting is not evidence in high treason unless the papers are found in the custody of the prisoner. 1 Burr. 644.—Christian.
[(k) ] See page 198.
[19 ] Repealed, by 43 Geo. III. c. 58, which is also repealed, by 9 Geo. IV. c. 31.—Chitty.
[(l) ] 2 Hal. P. C. 290.
[(m) ] St. Tr. i. passim.
[(n) ] Domat. Publ. Law, b. iii. t. 1. Montesq. Sp. L. b. xxix. c. 11.
[(o) ] See page 17.
[(p) ] Hollingsh. 1112. St. Tr. i. 72.
[(q) ] 2 Bulstr. 147. Cro. Car. 292.
[(r) ] 3 Inst. 79.
[(s) ] See also 2 Hal. P. C. 283, and his summary, 264.
[(t) ] Stat. 4 Jac. I. c. 1.
[(u) ] Com. Jour. 4, 5, 12, 13, 15, 29, 30 June, 1607.
[(w) ] Com. Jour. 4 June, 1607.
[(x) ] Co. Litt. 227. 3 Inst. 110. Fost. 27. Gould’s case, Hil. 1764.
[20 ] It is now settled that when a criminal trial runs to such a length as it cannot be concluded in one day, the court, by its own authority, may adjourn till the next morning; but the jury must be somewhere kept together, that they may have no communication but with each other. Stone’s case, 6 T. R. 527.—Christian.
[(y) ] 2 Hal. P. C. 300. 2 Hawk. P. C. 439.
[(z) ] 3 St. Tr. 731. 4 St. Tr. 231, 455, 485.
[(a) ] 2 Hal. P. C. 310.
[(b) ] Smith’s Commonw. l. 3, c. 1.
[(c) ] 2 Hal. P. C. 313.
[(d) ] 1 Lev. 9. T. Jones, 163. St. Tr. x. 416.
[(c) ] 2 Hawk. P. C. 442.
[21 ] No new trial can be granted in cases of felony or treason, (Rex. vs. Mawbey, 6 T. R. 638; and see 13 East, 416, n. b.;) but in cases of misdemeanour it is entirely discretionary in the court whether they will grant or refuse a new trial. Id. ibid. A new trial cannot, in general, be granted on the part of the prosecutor after the defendant has been acquitted, even though the verdict appears to be against evidence. But it seems to be the better opinion that where the verdict was obtained by the fraud of the defendant, or in consequence of irregularity in his proceedings, as by keeping back the prosecutor’s witnesses or neglecting to give due notice of trial, a new trial may be granted. 1 Chitt. C. L. 657.—Chitty.
[(d) ] The civil law in such case only discharges him from the same aconser, but not from the same accusation. Ff. 48, 2, 7, 2.
[(e) ] Stat. 14 Geo. III. c. 20.
[(f) ] In the Roman republic, when the prisoner was convicted of any capital offence by his judges, the form of pronouncing that conviction was something peculiarly delicate,—not that he was guilty, but that he had not been enough upon his guard:—“parum cavisse videtur.” Festus. 325.
[22 ] These acts are now all repealed, and new provisions on the same subject are made, by 7 Geo. IV. c. 64, s. 22, et seq.—Chitty.
[23 ] Repealed, by 7 & 8 Geo. IV. c. 27; and, by 7 & 8 Geo. IV. c. 29, s. 57, “to encourage the prosecution of offenders,” it is enacted that if any person guilty of any felony or misdemeanour under that act in stealing, taking, obtaining, or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for any such offence, by or on the behalf of the owner of the property or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and the court before whom any such person shall be so convicted shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner: provided, that if it shall appear before any award or order made that any valuable security shall have been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or, being a negotiable instrument, shall have been bona fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice, or without any reasonable cause to suspect, that the same had by any felony or misdemeanour been stolen, taken, obtained, or converted as aforesaid, in such case the court shall not award or order the restitution of such security.
The proviso in this clause seems to be new; and the enacting part of it makes some very important alterations in the law, as the former act of parliament extended only to cases of prosecutions of thieves, and not receivers, and did not include property lost by false pretences or by other misdemeanours.—Chitty.
[(g) ] 3 Inst. 242.
[(h) ] Bracton de Coron. c. 32.
[(i) ] See book ii. page 450.
[(k) ] 1 Hal. P. C. 543.
[24 ] It should seem that the sale in market-overt to a bona fide purchaser between the original taking and the attainder of the felon does operate a sort of conditional change of the property, for the owner can only sue, for the value of the goods, any person in possession of them, at or after conviction: in the interval they are not the property of the original owner, but of the vendee; and if that vendee dispose of them before attainder, though with notice of the felony, he is not liable. Harwood vs. Smith, 2 T. R. 750. Nor does the statute extend to goods obtained from the owner merely by fraud without larceny.—Coleridge.
[(l) ] See book iii. p. 4.
[(m) ] 1 Hal. P. C. 546.
[(n) ] See page 133.
[(o) ] Becc. ch. 46.