For the farther prevention of abuses, it is an invariable usage, that the Trial be public. The prifoner neither makes his appearance, nor pleads, but in places where every body may have free entrance; and the witneffes when they give their evidence, the Judge when he delivers his opinion, the Jury when they give their verdict, are all under the public eye. Laftly, the Judge cannot change either the place, or the kind of punifhment ordered by the law; and a Sheriff who fhould take away the life of a Man in a manner different from that which the law prescribes, would be profecuted as guilty of murder.

06

of London having faid to Felton, who had affaffinated the Duke of Buckingham, "If you will not confess you must go to the Rack." The Man replied, " If it must be so, "I know not who I may accuse in the extremity of the "torture; Bishop Laud perhaps, or any Lord at this "Board."

"Sound sense, (adds Foster) in the mouth of an Enthu"fiaft and a Ruffian.

Laud having proposed the Rack, the matter was fhortly debated at the Board, and it ended in a reference to the Judges, who unanimously refolved that the Rack could not be legally used.

* And if any other perfon but the Sheriff, even the Judge himself, were to cause death to be inflicted upon a Man, though convicted, it would be deemed homicide. See Blackstone, book iv. chap. 14.

In a word, the Conftitution of England being a free Conftitution, demanded from that circumftance alone (as I fhould already have but too often repeated, if fo fundamental a truth could be too often urged) extraordinary precautions to guard against the dangers which unavoidably attend the Power of inflicting punishments; and it is particularly when confidered in this light, that the Trial by Jury proves an admirable inftitution.

By means of it, the Judicial Authority is not only placed out of the hands of the Man who is vefted with the Executive Authority-it is even out of the hands of the Judge himself. Not only the person who is trusted with the public power cannot exert it, till he has as it were received the permiffion to that purpose, of those who are set apart to administer the laws but these latter are also restrained in a manner exactly alike, and cannot make the law speak, but when, in their turn, they have likewise received permiffion.

And those persons to whom the law has thus exclufively delegated the prerogative of deciding that a punishment is to be inflicted,those Men without whofe declaration the Executive and the Judicial Powers are both thus bound down to inaction, do not form among

themselves a permanent Body, who may have had time to study how their power can ferve to promote their private views or interest: they are Men felected at once from among the people, who perhaps never were before called to the exercise of such a function, nor foresee that they ever shall be called to it again.

As the extenfive right of challenging effectually baffles, on the one hand, the fecret practices of fuch as, in the face of so many discouragements, might ftill endeavour to make the Judicial Power fubfervient to their own views, and on the other excludes all personal refentments, the fole affection which remains to influence the integrity of thofe who alone are intitled to put the public power into action, during the fhort period of their authority, is, that their own fate as fubjects is effentially connected with that of the Man whofe doom they are going to decide.

In fine, fuch is the happy nature of this inflitution, that the Judicial Power, a power fo formidable in itfelf, which is to difpofe, without finding any refiftance, of the property, honour, and life of individuals, and which, whatever precautions may be taken to reftrain it, muft in a great degree remain arbitrary, may be faid in England, to exift,-to accomplish every intended

8

intended end,-and to be in the hands of nobody *.

In all thefe obfervations on the advantages of the English criminal laws, I have only confidered it as connected with the Conftitution, which is a free one; and it is in this view alone that I have compared it with the Jurifprudence received in other States. Yet, abftractedly from the weighty conftitutional confiderations which I have fuggefted, I think there are still other interefting grounds of pre-eminence on the fide of the laws of England.

In the first place, they do not permit that a Man fhould be made to run the rifque of a trial, but upon the declaration of twelve perfons at leaft (the Grand Jury). Whether he be in prifon, or on his Trial, they never for an inftant refufe free accefs to those who have either advice or comfort to give him; they even allow him to fummon all who may have any thing to fay in his favour. And lastly, what is of very great importance, the witneffes against him muft deliver their teftimony in his prefence;

*The confequence of this Inftitution is, that no Man in England ever meets the Man of whom he may say, "That "Man has a power to decide on my death or life." If we could for a moment forget the advantages of that Inftitution, we ought at leaft to admire the ingenuity of it,

he may cross-examine them, and by one unexpected queftion, confound a whole system of calumny: indulgences these, all denied by the laws of other Countries.

Hence, though an accused person may be exposed to have his fate decided by persons (the Petty Jury) who poffefs not, perhaps, all that fagacity which in fome delicate cafes it is particularly advantageous to meet with in a Judge, yet this inconvenience is amply compenfated by the extenfive means of defence with which the law, as we have seen, has provided him. If a Juryman does not poffefs that expertness which is the refult of long practice, yet neither does he bring to Judgment that hardness of heart which is, more or less, also the confequence of it; and bearing about him the principles, let me fay, the unimpaired inftinct of humanity, he trembles while he exercises the awful office to which he finds himself called, and in doubtful cafes always decides for mercy.

It is to be farther observed, that in the ufual courfe of things, Juries pay great regard to the opinions delivered by the Judges: that in those cafes where they are clear as to the fact, yet find themselves perplexed with regard to the degree of guilt connected with it, they leave it, as has been faid before, to be ascertained by the difcre