prefentment, upon examining witneffes, are either to allow or reject the indictment as true or falfe: in doing which, at least twelve of them must agree together (y). Now this is of great advantage, in order to prevent an innocent perfon's life or reputation from being brought any further into hazard, if the bill be not found: and by a variety of ftatutes upon this case, sufficient provision is made that the grand juries fhall confift of perfons fit for that truft. • I must add, that this advantage of having their case in capital matters determined by a grand jury, belongs to peers in like manner as to commoners, unless in cafes of an impeachment by the houfe of commons, which representing the whole people of England, is confidered as a grand inqueft, and therefore there is no other in fuch impeachments for either peer or commoner. And when the bill of indictment has been found by the grand jury, there ftill remains a more exact trial; in which the nobility in all cafes of treason, mifprifion of treason, felony or mifprifion of felony, are tried by their peers; that is, by thofe who have a feat and vote in the Houfe of Lords; and who, on account of their common honour, will be difpofed to fhew all the equity and regard that can reasonably be defired. The whole body of the nobility have a right to affift in the trial of each peer; they are to be fummoned with twenty days notice, and there must be a majority of those who are prefent to acquit or condemn. To this trial by their peers every peer and peerefs of Great Britain has a right, except only in cafes of appeals of murder, and of præmunire, in which cafes they are to be tried by a jury of Commoners. Commoners in like manner are to be tried by a jury of their own rank; that is under the degree of peerage, but they muft have all the following qualifications.-They must be free and reputable fubjects of England, not aliens, nor persons outlawed or attainted of any crime; nor infamous by having fuffered the pillory or the like: but men of honeft characters, and in the eye of the law good fobjects, probi et legales homines.— They must be men of competent fubftance and ability. The qualifications of jurors have been different in different periods of our history: but by 3 George II, all jurors in England returned for a capital offence, must have in their own name, or n truft for them, within the fame county 10 pounds per annum of freehold or copyhold lands, or lands in ancient demesne ; and Icafeholders twenty pounds per annum.They must be of the fame county wherein the fact was committed.--And laftly, they must be impartial, i. e. not biaffed by any affection or prejudice. (y) In the Saxon times indictments might be made by one legal perfon: fee Bacon, P. i. p. 54. but the Mirror fays, that Henry L. ordained that no man should be tried without an indictment by twelve perfons. • The upon his will, fince he may avoid it by pleading, and putting himfelf upon his country, the law cannot be charged with cruelty in that regard. If he will plead, he fhall not be interrogated even upon oath, which is a kind of torture to the conience. A man's own confeffion in fome circumstances will not be allowed to be made ufe of against him. Every man must be tried by the evidence that appears, and this evidence, when it is of living perfons, must be brought face to face, fo that the accufed perfon has the liberty of questioning or cross-examining them.-When the caufe is fummed up, the jury are to determine it, i. e. they are to judge of the facts upon which the merit of the caufe turns. How far fuch facts are criminal in law, they are indeed directed by the judges; but ftill they are at liberty whether they will be wholly governed by the judges opinions or not; for they give their verdict in general, fo that though they think the facts fufficiently proved, yet if they do not think, as the judges think, that fuch facts are criminal, they need not bring in the parties guilty. The great Judge Lyttelton, in his Tenures, . 386. declares," that if a jury will take upon them the knowlege of the law, upon the matter they may," which is agreed to by Lord Coke in his Com. thercupon: and Sir Matt. Hale (e) fays, "that the jury are judges not only of the fact, but of the law." And it feems probable, that by law, the juries in all cafes ought to be the judge of points of law, as well as of fact; (f) because originally the perfons of the jury feem to have been of the nature of judges, and to have fat upon the bench (g).--In the trial of a peer the cafe is determined by the majority of the peers prefent, but in the cafe of commons, the verdict of the jury must be unanimous, which is a circumftance favourable to the fide of mercy (h). There have been inftances when a verdict has been taken for fufficient without the unanimous confent of all the twelve (e) Hift. Law, p. 140. (f) We are very much inclined to be of our Author's opinion in this point, and we believe he is right; but is there not hence an apparent neceflity of further attention to the qualification of Jurors? It is furely a reproach to our judicial proceedings, and an injury to the liberty, property, and fometimes lives of the fubject, to have this important fervice performed by perfons of fuch incompetent abilities, who are always ready to give up the power with which the laws of their country intruft them, into the hands of the judges. (g) See Olaus Verelius in Hickes's Differtation." (h) The difference between the law of England, and the Scotch law in this refpect is very remarkable: a bare majority out of twelve gives a fufficient verdict in Scotland: the inconveniences and dangers of this are obvious: fome would give the preference to a medium between the extremes; but of the two the practice of our judicatories is moft favourable to the fubject. jurors 3 jurors (i); but this has always been by the direction of fome arbitrary minister or judge; and has always, by the legiflative authority, been condemned as illegal.-No new trial is ever granted, in criminal cafes, when the defendant is acquitted, if fome fraud or trick be not proved in the cafe (k).-The jury are not punishable for their verdict, whatever it be, in any criminal case - Such is the form of trial which probably our Saxon ancestors brought over hither with them; since we not only find fome traces of it in their laws, before the conqueft, but still earlier, in the conftitutions of other northern nations, among all whom something of this nature feems to have had place. To this trial by jury every one has a claim, in time of peace, except those who are actually in military fervice, and thereby fubject to martial law; which in this nation hath always been under certain regulations; and cannot be executed even upon foldiers, but in virtue of an act of parliament [the mutiny bill] renewed every year. And as all perfons are thus fecured from being unjustly found guilty, fo if they should be found guilty, the punishments are not arbitrary. The King cannot grant the forfeiture of the lands or goods of the perfons accufed before he is condemned (1). Neither can corporal judgment be given against a man in his abfence (m). The judges cannot invent new punishments, nor add new circumftances of rigour: thefe are all determined by law as well as the crimes. The cafes in which death is to be inflicted are all specified by known laws. The King can remit, in fome cafes, part of the rigour, but he cannot increase it. When Charles I, would have had Felton's right hand cut off before his execution, the judges would not confent to it (n). And when Henry VI. by his on authority condemned de la Pole, Duke of Suffolk, to banishment, the House of Lords protested against it. Imprisonment for life, or banishment, cannot now be inAlicted at all, but by act of parliament, or fentence of the courts of law (0). The King cannot fo much as oblige any perfon to accept an employment abroad, not even in ireland. This was attempted in Sir Thomas Overbury's cafe: he was sent to the Tower because he refused an embally into Ruffia (p). In like manner as to fines, care is taken that they fhail not be exorbitant: where the party is to be amerced, though he be at miferecordia domini regis, yet the amercement must be affirmed by the jury; and when he is fined ad voluntatem domini regis, yet this fine must be fet by the judges. The King cannot im pofe a fine upon any man, but it must be done judicially, and fo it hath been refolved by all the judges in England (q). During the reigns of the Stuarts, many exceffive fines were laid on perfons, for very fmail offences, viz. Mr. Hampden for a mifdemeanour in Charles the fecond's time, was fined 40,000l. and the Earl of Devonshire, for caneing Col. Culpepper was fined 30,000. But the bill of Rights, 1 William and Mary, put a stop to this arbitrary practice.' We flatter ourselves, that in collecting together from this ufeful tract, and reprefenting in one view, the many excellent provifions which have been made in favour of the liberty of the fubject, refpecting criminal matters, we shall not be thought to have rendered our Readers, an unneceffary or unacceptable service. These are things in which our country-men and fellow-fubjects, of every rank, are immediately interested; and the knowlege of them cannot be made too univerfal, as it tends to fhew how much fuperior and more valuable our privileges are, than those of every other nation under heaven; and to beget a fatisfaction and confidence in the minds of men towards the government under which they live. Of all others this is the firmest and most natural foundation for the love of our country: and that is every man's country, which affords him the fulleft and fureft protection. Our Author in the latter part of this tract, proceeds to shew, that in respect of property, we are in a more advantageous fitua tion than most other nations of Europe, and this he does with great ability, and many marks of deep learning in the antiquities and laws of this kingdom. The principal topics of argument which he makes ufe of, are, the free and independent manner in which property is held in this country; and the provifum made by the laws for the regular adminiftration of justice, in fecuring and determining property. And it must be a pleasure to every man, who is interested in this fubject, to trace the remarkable progrefs which the policy of the kingdom hath made, in this respect, from the early part of our hiftory to the prefent times. The Our Readers perhaps will not be difpleafed, with seeing what are his Lordship's fentiments of the judicial authority of the House of Peers, efpecially as he himself was a member of it. fubject came naturally under his confideration, and with it we fhall conclude this article. If I may take the liberty to give my opinion upon a matter of fo great importance, I must profess, that upon the best enquiry I have been able to make, it appears to me, that the jurifdiction of the House of Peers, in fome cafes, is of as great antiquity as any part of our conftitution: and likewife of fo eat advantage, in fome refpects, to the whole conftitution, (9) Rufhworth, vol. i. p. 40. that |