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presentment, upon examining witnesses, are either to allow or reject the indictment as true or false : in doing which, at least twelve of them must agree together (y). Now this is of great advantage, in order to prevent an innocent person's life or reputation from being brought any further into hazard, if the bill, be not found : and by a varietv of statutes upon this case, sufficient provision is made that the grand juries fhall consist of perfons fit for that truit.
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 cases of an impeachment by the house of commons, which representing the whole people of England, is considered as a grand inqucit, and therefore there is no other in such impeachments for either peer or commoner.
. And when the bill of indictment has been found by the grand jury, there itill remains a more exact trial; in which the nobility in all cases of treason, misprision of treason, felony or misprision of felony, are tried by their peers ; that is, by those who have a seat and vote in the House of Lords; and who, on account of their common honour, will be disposed to thew 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 summoned with twenty days notice, and there must be a majorit; of those who are present to acquit or condeinn. To this trial by their peers every peer and peeress of Great B:itain has a right, except only in cases of appeals of murder, and of præmunire, in which cases 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 must have all the following qualifications. They must be free and reputable subjects of England, not aliens, nor persons outlawed or attainted of any crime; nor infamous by having suffered the pillory or the like: but men of honeft characters, and in the eye of the law good subjects, probi et legales homines. - They must be men of competent substance 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 in trust for them, within the same county 10 pounds per annum of freehold or copyhold lands, or lands in ancient demelne; and leaseholders twenty pounds per annum. They must be of the same county wherein the fact was committed.-And Jaitly, they muft be impartial, i. e. noi biased 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 I. ordained chat no man should be tried without an ind &ment by twelve perfons,
- The The law gives the party accused a liberty of challenging both the array and the polls : i. e. the whole pannel, or particular jurors. And besides these challenges, which the law allows to be made to the sheriff or jurors, it further gives liberty to the party accused, in cases of high, petit treason, to challenge thirty five, i. e. within one of three whole juries, without assigning any cause at all. And in like manner in cases of felony, to challenge twenty, without thewing any cause.
• Persons of all ranks after having been indicted by a grand jury, are sure of having a regular trial by a petty jury, of having the charge openly made against them; and in cases of treafon, of having a copy of the indictment five days before their trial ; so that they may know what they will be charged with, and be thereby better prepared to defend themselves against it. To which end also, by 7 William and Mary, they have counsel allowed, at their own choice, who are to have free access to them; and are to keep their secrets, and not to be examined against them. And in all cases, where no counsel is retained, the judge who presides, and gives directions in the trial, is by law to be of counsel with the prisoner.
" As to evidence against a person upon trial; there is no making him an evidence against himself by torture, or extrajudicial confession. In England, it is evident, that the use of torture was contrary to law, and regarded as an infamous practice, even in the antient Saxon conftitution ; for the great Alfred put one of his judges to death, for condemning a person, upon a confession drawn out by torture(z). In Henry VI. time there was an endeavour by the Duke of Exeter to introduce it here (a), from whence the rack in the Tower was called his daughter: and the practice obtained for a considerable time; for in the succeeding reigns, even that of Queen Elizabeth, there are several instances of persons being tortured (b). There was a proposal for the use of it in the case of Felton, upon the murder of the Duke of Buckingham, in Charles the first's time : the King ordered the judges to be consulted upon it; but they declared that any kind of torture, to draw out confession, was contrary to the law of England. And Lord Coke says (c), “ there is no one opinion in our books, or judicial records, that we have seen and remember, for the maintenance of tortures or torments.” Our law has therefore, in tenderness to the subjects, laid this method wholly aside, except in cases where the person accused refuses to plead. Then indeed he is exposed to paine fort et dure (d). But this depending wholly
(2) Bacon's Governm. cf England, p. 55. (a) Coke's 3d Inft. p. 34.
b) Camden's Eliz. p. 457. ic) Coke's 3d Inft. p. 35. id) The paine forte es dure is applicable to a peer if he refuse to plead. Pp 2
ure (d). BuradiThen inte in cales Obec: A man oath, which plead, he be charged wiputting
upon his will, since he may avoid it by pleading, and putting himself upon his country, the law cannot be charged with cruelty in that regard. If he will plead, he shall not be interrogated even upon oath, which is a kind of torture to the confcicnce. A man's own confeffion 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, must be brought face to face, so that ihe accused person has the liberty of questioning or cross-examining them.- When the cause is fummed up, the jury are to determine it, i, e, they are to judge of the fačts upon which the merit of the cause turns. How far such facts are criminal in law, they are indeed directed by the judges ; but still 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 facts sufficiently proved, yet if they do not think, as the judges think, that such facts are criminal, they need not bring in the parties guilty. The great Judge Lyttelton, in bis Tenures, 8. 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. thereupon: and Sir Matt. Hale (e) says, “ that the jury · are judges not only of the fact, but of the law.” And it seems :
probable, that by law, the juries in all cases 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 sat 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 instances when a verdict has been taken for sufficient without the unanimous consent of all the twelve
(e) Hift. Law, p. 140.
(1) We are very much inclined to be of our Author's opinion in this i 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 surely . a reproach to our judicial proceedings, and an injury to the liberty, property, and sometimes lives of the subject, to have this important fer. vice performed by perfons of such incompetent abilities, who are al. ways ready to give up the power with which the laws of their country intruft chem, into the hands of the judges.
(8) See Olaus Verelius in Hickes's Dissertation.
(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 verdia 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 favourable to the subject.
jurors (i); but this has always 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, in criminal cases, when the defendant is acquitted, if some fraud or trick be not proved in the case (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 Saxrn ancestors brought over hither with them ; since we not only find some traces of it in their laws, before the conquest, but still earlier, in the constitutions of other northern nations, among all whom something of this nature seeins 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 exécuted 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 fould be found guilty, the punishments are not arbitrary. The King cannot grant the forfeiture of the lands or goods of the personis accused before he is condemned (1). Neither can corporal judgment be given against a man in his absence (m). The judges cannot invent new punishments, nor add new circumstances of rigour: these are all determined by law as well as the crimes. The cases in which death is to be inflicted 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 have had Felton's right hand cut off before his execution, the judges would not consent to it (n). And when Henry VI. by his own authority condemned de la Pole, Duke of Suffolk, to banishment, the House of Lords.protefted against it. '
• Imprisonment for life, or banishment, cannot now be in-' Aicted 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. This was attempted in Sir Thomas Oyerbury's case : he was sent to the Tower because he refused an embassy into Russia (p).
• In like manner as to fines, care is taken that they fall not be exorbitant: where the party is to be amerced, though he be at miserecordia 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 set by the judges. The King cannot im
(i) Hale's P. C. part ii. p. 298.
· Pp 3
pu We Aatter ou representing ine in favour of th
ow-subject of them perior,
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). Dur. ing the reigns of the Stuarts, many excessive fines were laid on persons, for very small offences, viz. Mr. Hampden for a misdemeanour in Charles the second's time, was fined 40,000 l. and the Earl of Devonshire, for caneing Col. Culpepper was fined 30,000. But the bill of Rights, I William and Mary, put a stop to this arbitrary practice.'
We Aatter ourselves, that in collecting together from this uferul trael, and representing in one view, the many excellent provisions which have been inade in fövour of the liberty of the subject, respecting criminal matters, we shall not be thought to have rendered our Readers, an unnecessary or unacceptable service. These are things in which our country-men and fellow-subjects, of every rank, are immediately interefted ; and the knowlege of them cannot be made too universal, as it tends to Thew 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 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 fullest and furcst protection.
Our Author in the latter part of this tract, proceeds to fhew, that in refpe&t 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 itse of, are, the free and independent manner in which property is held in this country; and the provision made by the laws for the regular administration of jufiice, in securing 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 kingdom hath made, in this respect, from the early part of our bistory 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 Pers, especially as he himself was a member of it. The ! subject came naturally under his consideration, and with it we mall conclude this article.
• If I may take the liberty to give my opinion upon a mat-! ter of so great importance, I inust profess, that upon the beftenquiry I have been able to make, it appears to me, that the i jurisdiction of the Houle of Peers, in some cases, is of as great antiquity as any part of our constitution : and likewise of so great advantage, in some respects, to the whole constitution,
(9) Runworth, vol. . p. 540.