Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Trial, and Conviction
THE several methods of trial and conviction of offenders, established by the laws of England, were formerly more numerous than at present, though the superstition of our Saxon ancestors: who, like other northern nations, were extremely addicted to divination; a character, which Tacitus observes of the ancient Germans.1 They therefore invented a considerable number of methods of purgation or trail, 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 ancient species of trial was that by ordeal; which was peculiarly distinguished by the appellation of judicium Dei; and sometimes vulgaris purgation, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two sorts,2 either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common people.3 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.4 Fire-ordeal was performed either by taking up in the hand, unhurt, a piece of red hot iron, of one, two or three pounds weight; or else by walking, barefoot, and blindfold, over nine redhot plowshares, 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.5
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 practiced in many countries to discover witches, by casting them into a pool of water, and drowning them to prove their innocence. And in he Eastern empire the fire-ordeal was used to the same purpose by the emperor Theodore Lascaris; who, attributing his sickness to magic, caused all those whom he suspected to handle the hot iron: thus joining (as has been well remarked6) 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 ancient, and very universal, in the times of superstitious barbarity. It was know to the ancient Greeks: for in the Antigone of Sophocles,7 a person, suspected by Creon of a misdemeanor, 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 Grotius8 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 spares 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.9
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, aquae, et ignis.10 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 Stiernhook11 gives the reason; “non defuit illis operae 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 praeceptum Domini, non tentabis Dominum Deum tuum.”12 Upon this authority, though the canons themselves were of no validity in England, it was thought proper (as had been done in Denmark above a century before13) 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,14 or rather by an order of the king in council.15
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:16 as the water of jealousy among the Jews17 was, by God’s especial 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:18 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 Godwyn, 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“19 which stuck in his throat and killed him. This custom has been long since gradually abolished, though the remembrance of it still subsists in certain phrases of abjuration retained among the common people.20
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.21 And, in the kingdom of Monomopata, 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 undermined.22
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 battle, 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:23 to which I have only to add, that the trial by battle may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal 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 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 battle; and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battle, 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 battle from the appellee;24 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 battle 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.25 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 his effect. “Hoc audi, homo, quem per manum teneo,” etc: “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 art perjured; and therefore perjured, because that thou feloniously didst murder my father, 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.”26 The battle 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 by 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 favor of the truth, and his blood shall be attained. 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 offense.
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. Of this enough has been said in a former chapter;27 to which I shall now only add, that, in the method and regulations of its proceedings, it differs little from the trial per patriam, or by jury: except that the peers need not all agree in their verdict; but the greater number, consisting of twelve at the least, will conclude, and bind the minority.28
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,29 “nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terrae.”
THE antiquity and excellence of this trial, for the settling of the civil property, has before been explained at large.30 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 two-fold 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, dispatch, 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 laws 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 indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, 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 has pleaded not guilty, and for his trial has 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 neighborhood; which is interpreted to be of the county where the fact is committed.31 If the proceedings are before the court of king’s bench, there is time allowed, between the arraignment and the trial, for a jury to be impaneled by writ of venire facias to the sheriff, as in civil causes: and the trial in case of a misdemeanor 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 offense. But, before commissioners of oyer and terminer and jail 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, to try persons indicted of smaller misdemeanors 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.
IN cases of high treason, whereby corruption of blood may ensue, 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 bound within three years after the offense committed: next, that the prisoner shall have a copy of the indictment, 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;32 for then is his 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 is witnesses for him, as was usual to compel their appearance against him. And, by statute 7 Ann. c. 21. (which did not take place till after the decease of the late pretender) all persons, indicted for high treason or misprision thereof, shall have not only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impaneled, 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 defense. 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 in had been impossible to have tried those offenses 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.33 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.34
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.
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.35 For it is here at least as necessary, as there, that the sheriff or returning officer be totally indifferent; that where an alien in indicted, the jury should be de medietate, or half foreigners; (which does not indeed hold in treasons,36 aliens being very improper judges of the branch of allegiance to the king) that on every panel there should be a competent number of hundredors; 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.
CHALLENGES 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 vitae, 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. 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 reason 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 persons so challenged. And then, and not sooner, the king’s counsel must show the cause: otherwise the juror shall be sworn.37
THE peremptory challenges of the prisoner must however have some reasonable boundary; otherwise he might never be 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.38 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. & Mar. 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:39 but the better opinion seems to be,40 that such challenge shall only be disregarded and overruled. Because, first, the common law does not inflict the judgment of penance for challenging twenty one, neither does the statute inflict it; and so heavy a judgment shall not be imposed by implication. Secondly, the words of the statute are, “that he be no admitted to challenge more than twenty;” the evident construction of which is, that any farther 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.
IF, by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales may be awarded as in civil causes,41 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 marshaled, 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.42 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 regular43) 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 out ancient law: for the mirrour,44 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 defense upon indictments and appeals of felony, than upon other venial causes.”45 And, to say the truth, the judges themselves are so sensible of this defect in our modern practice, that they seldom scruple to allow a prisoner counsel to stand by him at the bar, and instruct him what questions to ask, or even to ask questions for him, 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 still this is a matter of too much importance to be left to the good pleasure of any judge, and is worthy the interposition of the legislature; which has shown its inclination to indulge prisoners with this reasonable assistance, by enacting in statute 7 W. III. c. 3. that persons indicted for such high treason, as works a corruption of the blood, or misprision thereof, may make their full defense by
counsel, no exceeding two, to be named by the prisoner and assigned by the court or judge: and this indulgence, by statute 20 Geo. II. c. 30. is extended to parliamentary impeachments for high treason, which were excepted in the former act.
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. 11. and 1 & 2 Ph. & Mar. c. 10. two lawful witnesses are required to convict a prisoner; except in cases of coining,46 and counterfeiting the seals; or unless the party shall willingly and without violence confess the same. By statute 7 W. III. c. 3. in prosecutions for those treasons to which that act extends, the same rule 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; and it is declared that both witnesses must be to the same overt act of treason, or one to one over act, and the other to another overt act of the same species of treason,47 and not of distinct heads or kings: and no evidence shall be admitted to prove any overt act not expressly laid in the indictment. And therefore in Sir John Fenwick’s case, in king William’s time, where there was but one witness, an act of parliament48 was made on purpose to attaint him of treason, and he was executed.49 But in almost every other accusation one positive witness is sufficient. Baron Montesquieu lays it down for a rule,50 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,51 that the witness who affirms, and the accused who denies, makes an equal balance; there is a necessity therefore to call in 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 indicted for perjury; because then there is only one oath against another.52 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 168953 it may be collected,54 that the mere similitude of hand-writing 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.55
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.56
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. And Sir Matthew Hale in particular57 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 ancient and commonly received practice,58 (derived from the civil law, and which also to this day obtains in the kingdom of France59) 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 honor of Mary I, (whose early sentiments, till her marriage with Philip of Spain, seem to have been humane and generous60) 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 favor of the adversary, her majesty being party; her highness’ pleasure was, that whatsoever could be brought in favor 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.”61 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 defense:” and in general the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive, that a practice was gradually introduced of examining witnesses for the prisoner, but not upon oath:62 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 Coke63 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.64 And the house of commons were so sensible of this absurdity, that, in the bill for abolishing hostilities between England and Scotland,65 when felonies committed by Englishmen in Scotland were ordered to be tried in one of the three northern countries, they insisted on a clause, and carried it66 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,67 “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 Ann. st. 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 in closed, the jury cannot be discharged till they have given in their verdict; 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, give a privy verdict.68 But an open verdict may be either general, guilty, or not guilty; 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 so 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.69 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.”70 For, as Sir Matthew Hale well observes,71 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,72 where contrary to evidence the jury have found the prisoner guilty, their verdict has been mercifully set aside, and a new trial granted by the court of king’s bench; for in such case, as has been said, it cannot be set right by attaint. But there has yet been no instance of granting a new trial, where the prisoner was
acquitted upon the first.73
IF the jury therefore find the prisoner not guilty, he is then forever quit and discharged of the accusation;74 except he be appealed of felony within the time limited by law. But if the jury find him guilty,75 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 offense 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, in general, for any felony, the reasonable expenses of prosecution are by statute 25 Geo. II. c. 36. to be allowed to the prosecutor out of the county stock, if he petitions the judge for that purpose; and by statute 27 Geo. II. c. 3. poor persons, bound over to give evidence, are likewise entitled to be paid their charges, as well without conviction as with it. 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. 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.76 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 our of the offender’s goods, if has any, by a writ to be granted by the justice. And this writ of restitution shall reach the goods so stolen, notwithstanding the property77 of them is endeavored to be altered by sale in market overt.78 And, though this may seem somewhat hard upon 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. Or else, secondly, without such writ of restitution, the party may peaceably retake his goods, wherever he happens to find them,79 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:80 and also recaption is unlawful, if it be done with intention to smother or compound the larceny; it then becoming the heinous offense of theft-bote, as was mentioned in a former chapter.81
IT is not uncommon, when a person is convicted of a misdemeanor, 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, 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 entrusted 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,82 (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.”
1. de mor. Germ. 10.
2. Mirr. c. 3. § 23.
3. Tenetur se purgare is qui accusatur, per Dei judicium; scilicet, per calidum ferrum, vel per aquam, pro diversitate conditionis hominum: per ferrum calidum, si fuerit homo liber; per aquam, si fuerit rusticus. (Glanv. l. 14. c. 1.)
4. This is still expressed in that common form of speech, of “going through fire and water to serve another.”
5. Tho. Rudborne Hist. maj. Winton. l. 4. c. 1.
6. Sp. L . b. 12 c. 5.
7. v. 270.
8. On Numb. v. 17.
9. Mod. Univ. Hist. vii. 266.
10. Spelm. Gloss. 435.
11. de jure Sueonum, l. 1. c. 8.
12. Decret. part. 2. caus. 2. qu. 5. dist. 7. Decretal. lib. 3. tit. 50. c. 9. & Gloss. ibid.
13. Mod. Un. Hist. xxxii. 105.
14. 9 Rep. 32.
15. 1 Rym. Foed. 228. Spelm. Gloss. 326. 2. Pryn. Rec. Append, 20. Seld. Eadm. ful. 48.
16. Spekn. Gl. 439.
17. Numb. ch. 5.
18. LL. Canut. c. 6.
20. As, “I will take the sacrament upon it; may this morsel be my last;” and the like.
21. Mod. Univ. Hist. vii 129.
22. Ibid. xv. 464.
23. See Vol. III. pag. 337.
24. 2 Hawk. P. C. 427.
25. Flet. l. 1. c. 34. 2 Hawk. P. C. 426.
26. 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. Antiqu. b. 1. c. 19.)
27. See pag. 259.
28. Kelynge. 56. Stat. 7 W. II. c. 3. § 11. Foster. 247.
29. 9 Hen. III. c. 29.
30. See Vol. III. pag. 379.
31. 2 Hal. P. C. 264. 2 Hawk. P. C. 403.
32. Fost. 230.
33. Fost. 250.
34. 2 Hawk. P. C. 410.
35. See Vol. III. pag. 359.
36. 2 Hawk. P. C. 420. 2 Hal. P. C. 271.
37. 2 Hawk. C. P. 413. 2 Hal. P. C. 271.
38. 2 Hal. P. C. 268.
39. 2 Hawk. P. C. 414.
40. 3 Inst. 227. 2 Hal. P. C. 270.
41. See Vol. III. pag. 364.
42. 2 Hawk. P. C. 400.
43. 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.” It was therefore thought too dangerous an experiment, to let an advocate try, whether it could be contradicted or no.
44. c. 3. § 1.
45. Father Parsons the Jesuit, and after him bishop Ellys, (of English liberty, ii. 26.) have imagined, that the benefit of counsel to plead for them was first denied to prisoners by a law of Henry I, meaning (I presume) chapters 47 and 48 of the code which is usually attributed to that prince. “De causis criminalibus vel capitalibus nemo quaerat 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 impart; (See Vol. III. pag. 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 tend le querelle a respondre; et aura congie de soy conseiller, s’il le demande: et quand il sera conseille, it peut nyer le faict dont il 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.”
46. 1 Hal. P. C. 297.
47. See St. Tr. II. 144. Foster. 235.
48. Stat. 8 W. III. c. 4
49. St. Tr. V. 40.
50. Sp. L. b. 12. c. 3.
51. Beccar. c. 13.
52. 10 Mod. 194.
53. St. Tr. VIII. 472.
54. 2 Hawk. P. C. 431.
55. Lord Preston’s case. A. D. 1690. St. Tr. IV. 453. Francia’s case. A. D. 1716. St. Tr. VI. 69. Layer’s case. A. D. 1722. ibid. 279. Henzey’s case. A. D. 1758. 4 Burr. 644.
56. See pag. 198.
57. 2 Hal. P. C. 290.
58. St. Tr. I. passim.
59. Domat. publ. law. b. 3. t. 1. Montesq. Sp. L. b. 29. c. 11.
60. See pag. 17.
61. Holingsh. 1112. St. Tr. I. 72.
62. 2 Bulstr. 147. Cro. Car. 292.
63. 3 Inst. 79.
64. See also 2 Hal. P. C. 283. and his summary. 264.
65. Stat. 4. Jac. I. c. 1.
66. Com. Journ. 4, 5, 12, 13, 15, 29, 30 Jun. 1607.
67. Ibid. 4 Jun. 1607.
68. 2 Hal. P. C. 300. 2 Hawk. P. C. 439.
69. 2 Hal. P. C. 310.
70. Smith’s commonw. l. 3. c. 1.
71. 2 Hal. P. C. 313.
72. 1 Lev. 9. T. Jones. 163. St. Tr. X. 416.
73. 2 Hawk. P. C. 442.
74. The civil law in such case only discharges him from the same accuser, but not from the same accusation. (Ff. 48. 2. 7.
75. In the Roman republic, when the prisoner was convicted of any capital offense 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.)
76. 3 Inst. 242.
77. See Vol. II. pag. 450.
78. 1 Hal. P. C. 543.
79. See Vol. III. pag. 4.
80. 1 Hal. P. C. 546.
81. See pag. 133.
82. Becc. ch. 46.