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points must never be left out of sight in the establishment of a judicial power; and I conceive that they necessarily lead to the following maxims.
In the first place I shall remind the reader of what has been laid down above, that the judicial authority ought never to reside in an independent body ; still less in him who is already the trustee of the executive power.
Secondly, the party accused ought to be provided with all possible means of defence. Above all things the whole proceedings ought to be public. The courts, and their different forms, must be such as to inspire respect, but never terror : and the cases ought to be so accurately ascertained, the limits so clearly marked, that neither the executive power, nor the judges, may ever hope to transgress them with impunity.
In fine, since we must absolutely pay a price for the advantage of living in society, not only by relinquishing some share of our natural liberty (a surrender which, in a wiselyframed government, a wise man will make without reluctance), but even also by resigning part of our personal security,-in a word, since all judicial power is an evil, though a necessary one, no care should be omitted to reduce as far as possible the dangers of it.
As there is, however, a period at which the prudence of man must stop, at which the safety of the individual must be given up, and the law is to resign him to the judgment of a few persons, that is (to speak plainly), to a decision in some sense arbitrary, it is necessary that the law should narrow as far as possible this sphere of peril, and so order matters, that when the subject shall happen to be summoned to the decision of his fate by the fallible conscience of a few of his fellow-creatures, he may always find in them advocates, and never adversaries.*
* The remarks and deductions made in this chapter are among the most philosophical, logical, and just, in De Lolme's work.—Ed.
THE SUBJECT CONTINUED.
AFTER having offered to the reader, in the preceding chapter, such general considerations as I thought necessary, in order to convey a more just idea of the spirit of the criminal judicature in England, and of the advantages peculiar to it, I now proceed to exhibit the particulars.
When a person is charged with a crime, the magistrate, who is called, in England, a justice of the peace, issues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him : he must then hear him, and take down in writing his answers, together with different informations. If it appears, on this examination, either that the crime laid to the charge of the person who is brought before the justice was not committed, or that there is no just ground to suspect him of it, he must be set absolutely at liberty ; if the contrary results from the examination, the party accused must give bail for his appearance to answer to the charge, unless in capital cases; for then he must, for safer custody, be really committed to prison, in order to take his trial at the next sessions.*
* Sessions are either county or borough sessions. The first are held by justices of the peace under a commission issued by the Crown, authorising them to inquire into the “truth of the matter in all manner of felonies, enchantments, sorceries, arts, magic, trespasses, forestalling, regrating, engrossing, and extortions whatsoever, and of all and singular other crimes and offences of which the justices of the peace may inquire.” When the justices assemble to act judicially for the whole district, they constitute a court of general sessions of the peace, and assemble four times in the year. They are styled Courts of the Quarter Sessions of the Peace, and are directed to be held the first week after the 11th October, the first week after the 28th December, the first week after the 31st March, and the first week after the 24th June. Justices are empowered to require the sheriff, by precept, to return a grand jury before them and their fellow justices, by a certain day, not less than fifteen days date after the date of the precept, at a certain place within the district to which the commission extends. They can summon coroners, keepers of gaols and of houses of correction, and the bailies of liberties. The Custos Rotolorum
But this precaution, of requiring the examination of an accused person previous to his imprisonment, is not the only care which the law has taken in his behalf; it has farther ordained, that the accusation against him should be again discussed, before he can be exposed to the danger of a trial. At every session the sheriff appoints what is called the grand jury. This assembly must be composed of more than twelve men, and less than twenty-four; and is always formed out of the most considerable persons in the county. Its function is to examine the evidence that has been given in support of every charge : if twelve of those persons do not concur in the opinion that an accusation is well grounded, the party is immediately discharged ; if, on the contrary,
of the county attends with the rolls of the session, the sheriff by himself or his deputy, the several coroners of the county or district, the constables of hundreds or high constables, bailies of hundreds and of liberties, and keepers of gaols and of houses of correction, who are summoned to bring up the persons of prisoners, and of individuals who have entered into recognizances to answer charges, or to become evidence on charges for criminal offences against others. The 5 & 6 Vict. c. 38, enacts that no justices of the peace, nor recorder, in any borough, shall try or determine any charges of treason, murder, or capital felony, or any felony, where there has been no previous conviction; nor other offences mentioned in the eighteen heads contained in the first section of the act. That any judge of the supreme courts of Westminster, acting under oyer and terminer, and gaol delivery, may issue writs of certiorari and habeas corpus, removing criminal charges from the district of the quarter sessions to their presence, and requiring the presence of the body of the prisoner. The quarter sessions have jurisdiction over the annual fund raised by county rates, and, as in other courts, the justices may fine and imprison for contempt. When the justices are assembled in session, they elect their chairman, and after the grand jury are sworn, a royal proclamation against vice and immoi ality is then read by the clerk of the peace. The chairman delivers his charge to the grand jury, on which they retire to their room, receive the bills of indictment which are brought before them, and such bills, on being endorsed by the grand jury, are brought into court and delivered to the clerk of the peace, on which the prisoners are arraigned, and the trials proceed in the same form as at the assizes. The justices also hold petty and special sessions. By the Municipal Corporations Act, 5 & 6 Will. IV. c. 76, the recorder of any city or borough is the sole judge of the borough sessions. He holds the borough court of quarter sessions every quarter of the year, and at such other times as he may think necessary, as the Crown may recommend.-Ed.
twelve of the grand jury find the proofs sufficient, the prisoner is said to be indicted, and is detained in order to go through the remaining process.
On the day appointed for his trial, the prisoner is brought to the bar of the court, where the judge, after causing the bill of indictment to be read in his presence, must ask him how he would be tried ; to which the prisoner answers, by God and my country : by which he is understood to claim to be tried by a jury, and to have all the judicial means of defence to which the law entitles him. The sheriff then appoints what is called the petit jury: this must be composed of twelve men chosen out of the county where the crime was committed, and possessed of a landed income of ten pounds a year : their declaration finally decides on the truth or falsehood of the accusation.
As the fate of the prisoner thus entirely depends on the men who compose this jury, justice requires that he should have a share in the choice of them; and this he has through the extensive right which the law has granted him, of challenging, or objecting to, such of them as he may think exceptionable.
These challenges are of two kinds. One, which is called the challenge to the array, has for its object to have the whole panel set aside: it is proposed by the prisoner when he thinks that the sheriff who formed the panel is not indifferent in the cause ; for instance, if he thinks he has an interest in the prosecution, that he is related to the prosecutor, or in general to the party who pretends to be injured.
The other challenges are called to the polls (in capita): they are exceptions proposed against the jurors, severally, and are reduced to four heads by Sir Edward Coke. That which he calls propter honoris respectum, may be proposed against a lord empanelled on a jury; or he might challenge himself. That propter defectum takes place when a juror is legally incapable of serving that office, as, if he is an alien ; if he has not an estate sufficient to qualify him, &c. That propter dilictum has for its object to set aside any juror convicted of such crime or misdemeanor as renders him infamous, as felony, perjury, &c. That propter affectum is proposed against a juror who has an interest in the conviction of the prisoner; one, for instance, who has an action
depending between him and the prisoner; one who is of kin to the prosecutor, or his counsel, attorney, or of the same society or corporation with him, &c.*
In fine, in order to relieve even the imagination of the prisoner, the law allows him, independently of the several challenges above mentioned, to challenge peremptorily, that is to say, without showing any cause, twenty jurors successively.t
When at length the jury is formed, and they have taken their oath, the indictment is opened, and the prosecutor produces the proofs of his accusation. But, unlike to the rules of the civil law, the witnesses deliver their evidence in the presence of the prisoner : the latter may put questions to them; he may also produce witnesses in his behalf, and have them examined upon oath. Lastly he is allowed to have a counsel to assist him, not only in the discussion of any point of law which may be complicated with the fact, but also in the investigation of the fact itself, and who points out to him the questions he ought to ask, or even asks them for him. I
Such are the precautions which the law has devised for cases of common prosecutions ; but in those for high treason, and for misprision of treason, that is to say, for a conspiracy against the life of the king, or against the state, and for a concealment of it, §--accusations which suppose a heat of party and powerful accusers,—the law has provided for the accused party farther safeguards.
First, no person can be questioned for any treason, except a direct attempt on the life of the king, after three years elapsed since the offence. 2. The accused party may, independently of his other legal grounds of challenging peremp
* When a prisoner is an alien, one half of the jurors must also be aliens : a jury thus formed is called a jury de medietate lingue.
+ When these several challenges reduce too much the number of the jurors on the panel, which is forty-eigbt, new ones are named on a writ of the judge, who are named the tales, from those words of the writ, decem or octo tales.
I This last article, however, is not established by law, except in cases of treason; it is done only through custom and the indulgence of the judges.
§ The penalty of a misprision of treason is the forfeiture of all goods, and imprisonment for life.