The law gives the party accufed a liberty of challenging both the array and the polls: i. e. the whole pannel, or particular jurors. And befides these challenges, which the law allows to be made to the fheriff or jurors, it further gives liberty to the party accufed, in cafes of high, petit treason, to challenge thirty five, i. e. within one of three whole juries, without affigning any caufe at all. And in like manner in cafes of felony, to challenge twenty, without fhewing any cause.

Perfons of all ranks after having been indicted by a grand jury, are fure of having a regular trial by a petty jury, of having the charge openly made against them; and in cafes of treafon, of having a copy of the indictment five days before their trial; fo that they may know what they will be charged with, and be thereby better prepared to defend themselves against it. To which end alfo, by 7 William and Mary, they have counfel allowed, at their own choice, who are to have free accefs to them; and are to keep their fecrets, and not to be examined against them. And in all cafes, where no counsel is retained, the judge who prefides, and gives directions in the trial, is by law to be of counfel with the prifoner.

"As to evidence againft a perfon upon trial; there is no making him an evidence against himself by torture, or extrajudicial confeffion. In England, it is evident, that the ufe 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 perfon, upon a confeffion 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 confiderable time; for in the fucceeding reigns, even that of Queen Elizabeth, there are several inftances of perfons being tortured (b). There was a propofal for the use of it in the cafe of Felton, upon the murder of the Duke of Buckingham, in Charles the firft's time the King ordered the judges to be confulted upon it; but they declared that any kind of torture, to draw out confeffion, was contrary to the law of England. And Lord Coke fays (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 fubjects, laid this method wholly afide, except in cafes where the perfon accufed refufes to plead. Then indeed he is exposed to paine fort et dure (d). But this depending wholly

p. 55.

(2) Bacon's Governm. of England, P. Camden's Eliz. p. 457

(a) Coke's 3d Inft. p. 34.

(c) Coke's 3d Inft. p. 35.

(d) The paine forte et dure is applicable to a peer if he refufe to plead.

and

upon his will, fince 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 fhall not be interrogated even upon oath, which is a kind of torture to the confcience. A man's own confeffion in fome circumftances 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 cause 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 still 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, 6. 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) 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 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 is there not hence an apparent neceffity 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 most favourable to the subject.

jurors;

jurors (i); but this has always been by the direction of fome arbitrary minister or judge; and has always, by the legislative 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 cafe-Such is the form of trial which probably our Saxen ancestors brought over hither with them; fince we not only find fome traces of it in their laws, before the conqueft, but ftill earlier, in the conftitutions of other northern nations, among all whom fomething of this nature feems to have had place.

To this trial by jury every one has a claim, in time of peace, except thofe 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 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 protested against it.

Imprisonment for life, or banishment, cannot now be inflicted at all, but by act of parliament, or fentence of the courts of law (o). 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 embassy into Ruffia (p).

In like manner as to fines, care is taken that they shall 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 fmall offences, viz. Mr. Hampden for a mifdemeanour in Charles the fecond'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 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, respecting criminal matters, we fhall not be thought to have rendered our Readers, an unneceffary or unacceptable fervice. 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 fhew, that in refpect 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 ufe of, are, the free and independent manner in which property is held in this country; and the provifion made by the laws for the regular adminiftration of juflice, in fecuring and determining property. And it must be a pleafure to every man, who is interested in this fubject, to trace the remarkable progrefs which the policy of the kingdom hath made, in this refpect, from the early part of our hiftory to the present times.

Our Readers perhaps will not be difpleased, with feeing what are his Lordship's fentiments of the judicial authority of the Houfe of Peers, efpecially as he himself was a member of it. The fubject came naturally under his confideration, and with it we hall conclude this article.

If I may take the liberty to give my opinion upon a matter of fo great importance, I must profefs, 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 great advantage, in fome refpects, to the whole constitution,

(q) Rufhworth, vol. i. p. 540.

that

that it ought to be maintained inviolate. Whether this judi-
cial authority was antiently vefted in the Houfe of Lords alone,
exclufive of the Commons, hath been thought a point not quite
fo certain our moft eminent antiquarians have been of diffe-
rent judgments about it (r). Some of them have thought that
this judicature 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 houfe (s), it could hardly be otherwife, but that they
must have had a share in determining the caufes then moved in
parliament.

And indeed, as it is evident that the Commons did join in
acts of attainder, paffed in a legiflative way, fo there is alfo
reason to think that they did fometimes concur with the Lords
in declaring the law; and even in making awards in particular
cafes, even of a civil nature. William de Septivant's cafe is
an instance of it, and others quoted by Mr. Petyt. But this
seems rather to have been practifed by the confent of the Lords,
in those particular cafes, in order to add greater weight to their
own decifions, than because the Commons had a strict right to
concur in all fuch cafes.

There was antiently a diftinction between the greater and leffer Barons; and the right of judicature, in the Magna Curia, feems 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 cafe, in the reign of Henry II. And it seems very probable alfo from hence, that the Leffer Barons, were not reckoned Peers like the greater Barons. In 4 Edward III. the Lords are characterifed as judges of Parliament; which indeed the Commons did not difpute, in Henry the fourth's time, when that King and the Lords declared, that judgment folely belonged to them; and this courfe hath ever fince been obferved. There are numerous inftances, in which the Lords have judged in parliament, not only in the caufes of their Peers, but thofe where the King has been party, and but in others also brought before them; and even in original causes (t).

And whoever judges truly of the intereft of the conftitution will be clearly of opinion, that a Peerage is abfolutely neceflary, for several good purpofes, especially as a bank or fcreen to the Crown. If we had no peerage now upon the old conftitution, yet we fhould be neceffitated to make an artificial peerage, or fenate, inftead of it (u). Cromwell himfelf found it neceffary to do fo: and it is more fo every day, in proportion as the Houfe of Commons goes on gaining ground. Every one therefore, who is no republican, ought to de(r) See Cott. Pofth. p. 359. (s) Lex. Parliam. p. 54. (t) See Cafe of Appeals, p. 18. (u) Plato Rediv. p. 133.