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torily, challenge thirty-five jurors. 3. He may have two counsel to assist him through the whole course of the proceedings. 4. That his witnesses may not be kept away, the judges must grant him the same compulsive process to bring them in, which they issue to compel the evidences against him. 5. A copy of his indictment must be delivered to him ten days at least before the trial, in presence of two witnesses, and at the expense of five shillings; which copy must contain all the facts laid to his charge, the names, professions, and abodes of the jurors who are to be on the panel, and of all the witnesses who are intended to be produced against him. *
When, either in cases of high treason, or of inferior crimes, the prosecutor and the prisoner have closed their evidence, and the witnesses have answered to the respective questions both of the bench and of jurors, one of the judges makes a speech, in which he sums up the facts which have been advanced on both sides. He points out to the jury what more precisely constitutes the hinge of the question before them; and he gives them his opinion both with regard to the evidences that have been given, and to the point of law which is to guide them in their decision. This done, the jury withdraw into an adjoining room, where they must remain without eating and drinking, and without fire, till they have agreed unanimously among themselves; unless the court give a permission to the contrary. Their declaration or verdict (veredictum) must (unless they choose to give a special verdict) pronounce expressly, either that the prisoner is guilty, or that he is not guilty, of the act laid to his charge. Lastly, the fundamental maxim of this mode of proceeding is, that the jury must be unanimous.
And as the main object of the institution of the trial by jury is to guard accused persons against all decisions whatsoever from men invested with any permanent official authority,t it is not only a settled principle that the opinion which the judge deļivers has no weight but such as the jury
* Stat. 7 Will. III. c. 3, and 7 Anne, c. 21. The latter was to be in force only after the death of the late Pretender.
+ “Laws," as Junius says extremely well, “ are intended, not to trust to what men will do, but to guard against what they may do."
choose to give it; but their verdict must besides comprehend the whole matter in trial, and decide as well upon the fact as upon the point of law that may arise out of it: in other words, they must pronounce both on the commission of a certain fact, and on the reason which makes such fact to be contrary to law.*
This is even so essential a point, that a bill of indictment must expressly be grounded upon those two objects. Thus an indictment for treason must charge, that the alleged facts were committed with a treasonable intent (proditorie). An indictment for murder must express that the fact has been committed with malice prepense, or aforethought. An indictment for robbery must charge, that the things were taken with an intention to rob (animo furandi), &c. +
Juries are even so uncontrollable in their verdict,SO apprehensive has the constitution been lest precautions to restrain them in the exercise of their functions, however specious in the beginning, might in the issue be converted to the very destruction of the ends of that institution, that it is a repeated principle that a juror, in delivering his opinion, is to have no other rule than his opinion itself, that is to say, no other rule than the belief which results to his mind from the facts alleged on both sides, from their probability, from the credibility of the witnesses, and even
* Unless they choose to give a special verdict. “When the jury," gays Coke,“ doubt of the law, and intend to do that which is just, they find the special matter : and the entry is, Et super tota materiá petunt discretionem justiciorum.” Inst. iv. These words of Coke, we may observe, confirm beyond a doubt the power of the jury to determine on the whole matter in trial ; a power which in all constitutional views is necessary; and the more so, since a prisoner cannot in England challenge the judge, as he can under the civil law, and for the same causes as he can a witness.
of The principle that a jury is to decide both on the fact and the criminality of it, is so well understood, that, if a verdict were so framed as only to have for its object the bare existence of the fact laid to the charge of the prisoner, no punishment could be awarded by the judge in consequence of it. Thus, in the prosecution of Woodfall, for printing Jnnius' Letter to the King (a supposed libel), the jury brought in the following verdict – Guilty of printing and publishing only; the consequence of which was the discharge of the prisoner.
[See Supplementary Illustrations, No. 8.]- Ed.
from all such circumstances as he may have a private knowledge of. Lord Chief Justice Hale expresses himself on this subject in the following terms :
“In this recess of the jury, they are to consider the evi. dence, to weigh the credibility of the witnesses, and the force and efficacy of their testimonies; wherein (as I have before said they are not precisely bound by the rules of the civil law, viz. to have two witnesses to prove every fact, unless it be in cases of treason, nor to reject one witness because he is single, or always to believe two witnesses, if the probability of the fact does upon other circumstances reasonably encounter them; for the trial is not here simply by witnesses, but by jury : nay, it may so fall out, that a jury upon their own knowledge may know a thing to be false that a witness swore to be true, or may know a witness to be incompetent or incredible, though nothing be objected against him—and may give their verdict accordingly.”*
If the verdict pronounces not guilty, the prisoner is set at liberty, and cannot, on any pretence, be tried again for the same offence. If the verdict declares him guilty, then, and not till then, the judge enters upon his function as a judge, and pronounces the punishment which the law appoints.t But, even in this case, he is not to judge according to his own discretion only; he must strictly adhere to the letter of the law; no constructive extension can be admitted ; and however criminal a fact might in itself be, it would pass unpunished if it were found not to be positively comprehended in some one of the cases provided for by the law. The evil
* History of the Common Law of England, chap. 12, sect. 11. The same principles and forms are observed in civil matters; only peremptory challenges are not allowed.
+ When the party accused is one of the lords temporal, he likewise enjoys the universal privilege of being judged by his peers : though the trial then differs in several respects. In the first place, as to the number of jurors; all the peers are to perform the function of such, and they must be summoned at least twenty days beforehand. 2. When the trial takes place during the session, it is said to be in the high court of parliament; and the peers officiate at once as jurors and judges. When the parliament is not sitting, the trial is said to be in the court of the high steward of England; an office which is not usually in being, but is revived on those occasions; and the high steward performs the office of judge, 3. In either of these cases, unanimity is not required; and the majority, which must consist of twelve persons at least, is to decide,
that may arise from the impunity of a crime,—that is, an evil which a new law may instantly stop,-has not by the English laws been considered as of magnitude sufficient to be put in comparison with the danger of breaking through a barrier on which so materially depends the safety of the individual.*
To all these precautions taken by the law for the safety of the subject, one circumstance must be added, which indeed would alone justify the partiality of the English lawyers to their laws in preference to the civil law ;-I mean the absolute rejection they have made of torture.t Without repeating here what has been said on the subject by the admirable author of the treatise on Crimes and Punishments, I I shall only observe, that the torture, in itself so horrible an expedient, would, more especially in a free state, be attended with the most fatal consequences. It was absolutely necessary to preclude, by rejecting it, all attempts to make the pursuit of guilt an instrument of vengeance against the innocert. Even the convicted criminal must be spared, and, a practice at all rates exploded, which might so easily be made an instrument of endless vexation and persecution.g
* I shall here give an instance of the scruple with which the English judges proceed upon occasions of this kind. Sir Henry Ferrars having been arrested by virtue of a warrant, in which he was termed a knight, though he was a baronet, Nightingale, his servant, took his part, and killed the officer ; but it was decided, that, as the warrant " was an ill warrant, the killing of an officer in executing that warrant could not be murder, because no good warrant: wherefore he was found not guilty of the murder and manslaughter."-See Coke's Rep. Part III. p. 371.
+ Coke says (Inst. III. p. 35), that when John Holland, duke of Exeter, and William de la Pole, duke of Suffolk, renewed under Henry VI. the attempts made to introduce the civil law, they exhibited the torture as a beginning thereof. The instrument was called the duke of Exeter's daughter,
Ś Judge Foster relates, from Whitelocke, that the Bishop of London having said to Felton, who had assassinated the Duke of Buckingham, “If you will not confess, you must go to the rack ;" the man replied, “If it must be so, I know not whom 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 enthusiast and a ruffian."
Laud baying proposed the rack, the matter was shortly debated at
For the farther prevention of abuses, it is an invariable usage that the trial be public. The prisoner neither makes his appearance, nor pleads, but in places where every body may have free entrance; and the witnesses when they give their evidence, the judge when he delivers his opinion, the jury when they give their verdict, are all under the public eye. Lastly, the judge cannot change either the place or the kind of punishment ordered by the law; and a sheriff, who should take away the life of a man in a manner different from that which the law prescribes, would be prosecuted as guilty of murder.”*
In a word, the constitution of England, being a free constitution, demanded from that circumstance alone (as I should already have but too often repeated if so fundamental a truth could be too often urged) extraordinary precautions to guard against the dangers which unavoidably attend the power of inflicting punishments : and it is particularly when considered in this light that the trial by jury proves an admirable institution.
By means of it, the judicial authority is not only placed out of the hands of the man who is invested 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 exért it, till he has, as it were, received the permission to that purpose of those who are set apart to administer the laws; but these latter are also restrained in a manner exactly alike, and cannot make the law speak, but when, in their turn, they have likewise received permission.
And those persons to whom the law has thus exclusively delegated the prerogative of deciding that a punishment is to be inflicted,—those men, without whose declaration the executive and the judicial powers are both thus bound down to inaction, do not form among themselves a permanent body, who may have had time to study how their power can serve to promote their private views or interests : they are
* the board, and it ended in a reference to the judges, who unanimously
resolved that the rack could not be legally used.
* And if any other person but the sheriff, even the judge himself, were to cause death to be inflicted upon a man, though convicted, it would be deemed homicide.-See Blackstone, book iv. chap. 14.