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upon his will, since he may avoid it by pleading, and putting bimfelf upon his country, the law cannot be charged with cruelty in that regard. If he will plead, he shall not be interrogated even upon cath, which is a kind of torture to the conKience. A man's own confession in some circumstances will not be allowed to be made use of against him.
• Every man must be tried by the evidence that appears, and this evidence, when it is of living persons, muft be brought face to face, so that the accused person has the liberty of questioning or crofs-examining them.-- When the cause is summed up, the jury are to determine it, i. e. they are to judge of the facts upon which the merit of the cause turns. How far such facts are criminal in law, "hey are indeed directed by the judges; but stil they are at liberty whether they will be wholly governed by the judges opinions or not; for they give their verdict in general, so that though they think the facis sufficiently proved, yet if they do not think, as the judges think, that such facts are cri‘minal, they need not bring in the parties guilty. The great *Judge Lyttelton, in his Tenures, N. 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) says, " that the jury are judges not only of the fact, bit of the law.” And it seems probable, that by law, the juries in all cafès ought to be the judge of points of law, as well as of fact; (f) because originally the persons of the jury seem to have been of the nature of judges, and to have fat upon the bench (g):-- In the trial of a peer the case is determined by the majority of the peers present, but in the case of commons, the verdict of the jury must be unanimous, which is a circumstance favourable to the side of mercy (h).
There have been inftances when a verdict has been taken for sufficient without the unanimous consent 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 i; there not hence an apparent neceflity of further attention to the qualificativn of Jurors ? It is surely a reproach to our judicial proceedings, and an injury to the liberty, property, and sometimes lives of the subject, to have this important fervice performed by perfons of such incompetent abilities, who are always ready to give up the power with which the laws of their country intrust 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 respect is very remarkable : a bare majority out of twelve gives a sufficient verdiet in Scotland: the inconveniences and dangers of this are obvious: some would give the preference to a medium between the extremes ; but of the two the practice of our judicatories is most fam vourable to the subject.
jurors; jurors (i); but this has alwars been by the direction of some arbitrary minister or judge; and has always, by the legislative authority, been condemned as illegal.- No new trial is ever granted, jo criminal cases, when the defendant is acquitted, if fome fraud or trick be not proved in the cale (k).- The jury are not punishable for their verdict, whatever it be, in any criminal case-Such is the form of trial which probably ou: Saxon ancestors brought over hither with them ; since we not only find some traces of it in their laws, before the conqueft, but still earlier, in the constitutions of other northun nations, among all whom something of this nature seems 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 service, and thereby subject to martial law; which in this nation hath always been under certain regulations, and cannot be executed even upon soldiers, but in virtue of an act of parliament (the mutiny bill] renewed every year.
• And as all persons are thus secured from being unjustly found guilty, so if they should be found guilty, the punishments are not arbitrary. The King cannot grant the furfelture of the lands or goods of the persons accused before he is condemned (1), Neither can corporal judgment be given againit a man in his absence (m). The judges cannot invent new punishments, nor add new circumftances of rigour : these are all determined by law as well as the crimes. The cases in which death is to be. infided are all specified by known laws. The King can remit, in some cases, part of the rigour, but he cannot increase it. When Charles I, would bave had Felton's right hand cut off before his execution, the judges would not content to it (a). And when Henry VI. by his or n 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 inAicted at all, but by act of parliament, or sentence of the courts of law (o). The King cannot so much as oblige any person to accept an employment abroad, not even in Ireland. "7 his was attempted in Sir Thomas Overbury's cale: he was sent to the Tower because he refused an embassy into Ruisia (P).
• In like manner as to fines, care is taken that they shall not be exorbitant: where the party is to be amerce, though he be at mi ferecordia domini regis, yet the amercement must be atmed by the jury; and when he is fined ad voluntatem domini rrgis, yet this fine must be set by the judges. The King cannot im
(i) Hale's P. C. part ii. p. 298.
(m) Trial par gais, P: 31. (0) Rushworl's Coll. part i. p. 640. (0) Coke's 2d Init, p. 47
(P) Ruhworth, vol.ii. p. 435.
pose a fine upon any man, but it must be done judicially, and so it hath been resolved by all the judges in England (9). During the reigns of the Stuarts, many exceffive fines were laid on persons, for very small offences, viz. Mr. Hampden for a mildemeanour in Charles the second's time, was fined 40,000 1. and the Earl of Devonshire, for caneing Col. Culpepper was fined 30,000. But the bill of Rights, 1 Williams and Mary, put a stop to this arbitrary practice.'
We fatter ourselves, that in collecting together from this useful tract, and representing in one view, the many excellent provisions which have been made in favour of the liberty of the subject, 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-subjects, of every rank, are immediately interested ; and the knowlege of them cannot be made roo univerfal, as it tends to shew how much superior and more valuable our privileges are, than those of every other nation under heaven; and to beget a satisfaction and confidence in the minds of men towards the go vernment under which they live. Of all others this is the firmest and most natural foundation for the love of our comatry: and that is every man's country, which affords him the fullest and fureft protection.
Our Author in the latter part of this tract, proceeds to Thew, that in respect of property, we are in a more advantageous fituation 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 use of, are, the free and independent manrer in which property is held in this country; and the provifion made by the laws for the regular administration of justice, in fecuring and determining property. And it must be a pleasure to every man, who is interested in this subject, to trace the remarkable progress which the policy of the kingdoin hath made, in this respect, from the early part of our history to the present times.
Our Readers perhaps will not be displeased, with seeing what are his Lordship’s sentiments of the judicial authority of the House of Peers, especially as he himself was a member of it. The subject came naturally under his consideration, and with it we shall conclude this article.
• If I may take the liberty to give my opinion upon a matter of so great importance, I must profess, that upon the best enquiry I have been able to make, it appears to me, that the jurisdiction of the House of Peers, in some cases, is of as great antiquity as any part of our constitution : and likewife of fo mat advantage, in some respects, to the whole conftitution, 69) Rushworth, vol. i. P: $40.
that it ought to be maintained inviolate. Whether this judicial authority was antiently vested in the House of Lords alone, exclusive of the Commons, hath been thought a point not quite to certain: our most eminent antiquarians have been of different judgments about it (r). Some of them have thought that this judicatuce being parliamentary, the commons are entitled to a share in it; and the rather, because their having formerly been included in the baronage, and having fat with the Lords in one house (s), it could hardly be otherwise, but that they muft have had a share in determining the causes then moved in parliament.
And indeed, as it is evident that the Commons did join in acts of attainder, passed in a legislative way, so there is also reason to think that they did sometimes .concur with the Lords in declaring the law; and even in making awards in particular cases, even of a civil naturę. William de Septivant's case is an instance of it, and others quoted by Mr. Petyt. But this feems rather to have been practised by the consent of the Lords, in those particular cases, in order to add greater weight to their own decihons, than because the Commons had a strict right to concur in all such cases.
• There was antiently a distinction between the greater and leffer Barons ; and the right of judicature, in the Magna Curia, seems to have been vefted only in the former, with the King at their head: that the Leffer Barons had not that right, appears from Archbishop Becket's case, in the reign of Henry II. And it feems very probable allo from hence, that the Lefier Barons, were not reckoned Peers like the greater Barons. In
Edward III. the Lords are characterised as judges of Parliament; which indeed the Commons did not dispute, in Henry the fourth's time, when that King and the Lords declared, that judgment solely belonged to them; and this course hath ever fince been observed. There are numerous instances, in which the Lords have judged in parliament, not only in the caufes of their Peers, but those where the King has been party, but in others also brought before them; and even in original caufes (t).
And whoever judges truly of the interest of the constitu. tion will be clearly of opinion, that a Peerage is absolutely neceffary, for feveral good purposes, especially as a bank or fcreen to the Crown. If we had no peerage now upon the old constitution, yet we thould be neceffitated to make an artificial peerage, or fenate, instead of it (u). Cromwell himfelf found it necessary to do fo: and it is more fo every day, in proportion as the House of Commons goes on gaining ground. . Every one therefore, who is no republican, ought to de. (r) See Corr. Pofth. p. 359.
(s) Lex Pariam p. 54.. (1) See Cafe of Appeals, p. 18. (a) Plate Rediv. p. 133.
fire to support the dignity of the Lords house as m fible; and to that purpose it is necessary at present, prerogatives of that house, and especially the right ture, should be preserved intire ; for if this thou they would find it impossible to preserve their dig should be supposed, that there are some young, unatı unskilful persons, at all times among them; it is ce on the other hand, that there are and always have b of great knowlege and probity, who take care that be no juft grounds of complaint in their administrat tice. In fact, I do not find there have been many plained of; and probably this same care will alway not only from their innate honour and probity an justice, but also because they know that the Hou mons have their eyes open upon them; and that the will be likely to be supported by the people, in cal do any thing amiss. So that upon the whole, th could not easily be better placed, nor the judicial : general be much better administered.'
We believe the general public sense will confi nourable testimony this learned Writer bears to the integrity with which judicial proceedings are co the House of Lords; but the strongest testimony o is the amazing encrease of bufiness of this kind; a numerous appeals which are made at the bar of th every session of parliament: this shews the confide the public places in this court of judicature ; and w there are many great families, both in this, and doms, that have experienced, to their great and 1 faction, the wisdom and fidelity of its determinati we need not fcruple to foretell, that if the box British Peers will go on to administer justice, in t that it hath been done, for some years paft, they account, if on no other, retain their dignity and in the legislature. The friends of public liberty, partiai to the aristocratic part of our government, as obfcrved with pleasure, their rising importance in th and have looked upon it as an earnest of the frequen meetings of parliaments, which is the great fecuri thing dear to us as Britons. Nor did his Lordship n exprified any fears, as though the House of Con gaining ground beyond its due proportion: as long relations, and dependents of noble families are mem House of Commons; and fo many boroughs and a almost at the disposal of the peerage in all their ele the number of Peers is every day cularda of policy pursued for confining an that body; and as long as B- -p Lords, the apprehensions of other way