No More Learning

Juror being afterwards asked, how could join
so; and his body stubborn But why then his voice regarded sufficient Verdict without him Or, convicted without the agreement all, why then
pelled agreement one way other After all, forced agreement
his mind, starve Why can't the man must not not the Prisoner acquitted, when they can't agree But why must the Jurors com
true may them out too. others give
they deserve any censure for can’t see things the same
any
given without it?
twenty-three
sure 'tis odd way deciding cause, that
termination him, who can fast the longest.
thought requisite, that two-thirds should
could agree find the Prisoner guilty, should convicted and they did not, should acquitted: would not this sufficient
security for innocence Sure would sion case non-agreement, than appearance one; for the same
convicted without the concurrence which not sincere but forced.
Another thing not counted among the Excellencies our On the pro Law the Indictments and other Proceedings being the Latin ceedings being tongue. Every body knows, that not one prisoner great, many Latin.
understands that language; and tho’ the Indictment generally ex plained him the vulgar tongue, yet the original must
take his Exceptions, and upon that the arguments must founded.
the days Oliver Cromwell Proceedings were the vulgar tongue;
the consent regard, ought
him, who stands out against the rest, free; none, then why can't
Verdict
twelve must agree, the better way would
Jury, and the Verdict
have given the majority for
restrained this manner
should left But suppose
the de should
many much better make provi
mind, and
forcible methods
thing the prisoner, whether
extort the all, by concurrence
ofto in
to
all
it
if by of or
be
in
inIa beisinatobe a in
a in he
to be a a if it
it an of
in
he 2.
Ifbe IfaItso it it
is, is
be in ofof
all an it an
he be
of of in
to
all
to it
be is be
if is all to
to an
if it
of
a ;sotobebe
;toofbe isof
a
heon Ior a
to
of
do
a Iftoof of be
no
Itin
a
is
by it? ofbeit,hedo in behe ? asa toallora
it of bebe be
to
is of it of totoais be
or be by no
a isif? as
if or
Inifbebe *of in
itto
XXX
PREFACES TO FORMER EDITIONS
and tho' it has not been thought proper to continue a practice intro duced by an Usurper, yet if the thing be really and right, matters
On the form of Indictments.
take notice very common
one thing relating insert words, which
In blasphe foolis
greatly
not, who introduced it: fas
said with respect the Writing
should not, for were, the laws would always evaded by pre tended ignorance; but then must very unreasonable use any methods, which tend conceal that law, and keep the people igno rance it: Misera servitus est, ubi jus vagum aut incognitum (f). The inconvenience this will appear more plainly, we consider that every Indictment must assented by Grand-Jury; and another Jury must afterwards declare whether the Charge therein contained be true not. Now how can expected they should declare their
Law, Ignorantia juris non excusat (e) ignorance the Law good plea indeed necessary that
understood. maxim
consent what they cannot understand: greater part may very safely return Ignoramus
that verily believe, the every Bill that comes
before them.
Here may not amiss the Form our Indictments. are never intended proved
-
Indictments for writing where there pretence
praisentant, quod
for instance, the Words armis (g) publishing Libels, and many other cases,
therefore can find the charge, which
reason believe
they be, yet still they have natural and proper meaning (else why
are they inserted and they are not true, don't see how any one can upon oath honestly declare they are, unless can thought an
excuse for giving rash (not say false) Verdict, that thing course. The words course are generally the most material words
Indictment; proditorie (i) word course Indictment for Treason, burglariter (k) Burglary, and felonice (l) Felony; but
any those words
omitted their respective cases, the Indictment,
will
feared, that Jurymen sometimes overlook the Indictment, under the motion their being words course. Thus the case blasphemous Libel, custo mary insert the words falso malitiose scripsit, &c. and indeed they
are the very gist the Indictment, and absolutely necessary con stitute the offence: for words can Blasphemy (i. e. reproachful
(e) Digest. lib. 22. tit. De juris facti ignorantia, 1. 9. Plowd. Com. 343. (f) Co. Instit. 246. 332. This Grievance since remedied the Geo.
naught.
most essential Words
cap. 26,
wrote
also Geo.
Proceedings shall English, and character, and words length. See
these cases. See
insert them, when they are not true.
Francis Smith, and Laurence Braddon, Lev.
which enacted, That
common legible hand and cap. 14.
(g) These words are not necessary
therefore the more inexcusable
(h) See the Indictments 221.
(i) Co. Instit. 15. 11. (k) Co. 39, Cr. Eliz. 920. (l) Co, 121. Cro. Eliz. 193.
hoste doceri. The same might be peculiar hand, not generally
libellum (h); which not only
but tends insnare the consciences general Verdict against the Defendant,
that part the Indictment proved. Verdict against the Defendant, does
the Indictment,
man guilty generally, when there
either believes false,
true? said that these are words
believes the entire charge laid
true; how one part least has no
colour truth
Juratores quemdam the thing,
giving
ARM
falso absurdity
them; malitiosé scripsit
the nature Jurymen; who
not always consider whether When Juryman gives general
effect declare upon oath, that
course
5 3
in 4 toof isbeof or
of
of
b.
a );to J.
it ofbe be S. to
it isto a
-
in an
or
2. an if of he in
6 It 3.
a to to 2, by of to is ofit
to he no ofifIt
H. is ofbeofa be to P. of 6. as inan in he vi. be be
is
C. to no ifbeEToror no
et is to a It as in a is
is : It it it
in est
it et all of in tobe;in
he an as is to be
inet a is ab
be a in of of est
4 oftodo ait
a
of
I init
b. in
intoIifbe
is
do
be a et So inin ofto
is
fit
37be
H. atin
8. by it a ofis ing. et
c. to is 2 8, 4
a
to it in a
it is
ifinof ;
it;
a
of
ofe. vi
a to
it atto isbe be
them, whether reality Thus the Case when the word falsó
guilty, the assertion word falso, another
was not.
defamatory Libels, Scandalum Magnatum, and defama >\
inserted, the Defendant ought not true. Whether necessary
that Indictment laid, Hitherto the Law allows not
the words true.
the On Trials for Felony.
OF THE STATE TR1A L5.
“xxxi
reflection upon God or Religion) which are true, for Truth can be no reflection on the God of Truth; so no opinions, however erroneous, can merit that denomination, unless uttered with a wicked malicious design of reviling God or Religion (m). And yet how often have persons been found guilty upon these Indictments, without any proof either of the falshood of the positions, or of the malice of him who wrote them 2 Nay sometimes, when there is a great deal of reason to think they were published from no other principle, but a sincere love and regard for
Truth? These are things not always sufficiently attended to by Juries; it often satisfies them, if the Defendant be proved to have done the fact
wrote the Book) whether with the circumstances falso
malitiosé, charged the Indictment, not and yet when the Defendant comes move Arrest Judgment, that what has done cannot
amount Blasphemy, because was not done with evil intent; then told, that that found by the Verdict, and must taken be
true; and indeed must: but then this should caution Juries,
how they find man guilty Indictment generally without due proof every part it; since every thing, which was proper for their
consideration, will after verdict supposed have been considered by
question, (tho’ believe would
Indictment without it;) yet certainly where the Indictment
maintain charges guilty
copy names the Jurors, nor the assistance
fact any Indictments for Felony, yet
would be never the worse man these assistances
him, when his life lies
soner would these means enabled make captious Exceptions
man with falsly writing
Libel, cannot justly found
did; for
Counsel (n)
the opinion
matter many
But still there one reason why, the law now stands, the Prisoner ought not wholly deprived the means making even these captious Exceptions; and that because otherwise may brought into jeopardy his life divers times for one and the same offence, thing very unreasonable itself, and contrary the Maxims Common Law (o); for found Not Guilty faulty Indictment, his Acquittal shall avail him nothing, but may still indicted again for the same fact. This founded supposition (p), that his life was
danger the first Indictment, because the Exceptions which might taken it; and yet apparent, that the generality prisoners, unless they may informed counsel such Exceptions,
advised how make them, are like be but little the better for them.
(m) See Reformat. leg. Ecclesiast. Blasphemia, cap. ‘Blasphemia con temptu contumelias Deum projicit, etiracundia. ’ See also Whitlock's Speech'
behalf James Nayler, vol.
(n) See Whitlock's Mem. (o) Co. 40. 47.
273. Blasphemy “crimen malitia. ” 433.
(p) Ibid. 45.
the Indictment, nor
seems very strange
allow defence his property, and deny them
stake. Perhaps will said, that the pri
the proceedings, whereby public justice might evaded; but this objection would removed,
allow such exceptions; for either they relate
cause, they not; they do, they are not captious, but
have the benefit them they not, there will done disallowing them.
either protracted the law did not
the merits
the ought wrong
found tory Libels.
insert the difficult
4
in or of on of ofa
if in to to
a.
a. in
on if of be toto he
by
in a
of in
p. 2. p.
; if
if so
of of
a.
is
onto of a
to it to if be be
of it or
is he ofto
in‘ o in to orto a of is as(i. no 4. e.
ofbe an to
is soin
de
it on to by
of
is be be
isof in ifatin beit
1. of be he of be
as
be
an
et
of
a
to itof
to
he
he
do
be
of
of
be itbe beto to
be
a he
is do of
itis
be it
isa as of I ;
is,
aifa
sobe an it or or
be nohe
of to to
be
be
to
to
of
of
it it
xxxii
Le Peine fort et dure.
PREFACES TO FORMER EDITIONS
5. There is one thing in our Laws which is very singular, and comes the nearest of any thing to the Tortures used in other countries, viz. le Peine fort et dure, or, pressing to death: 'Tis true, this is not used to force the Prisoner to confess, but to plead one way or other; but yet
On the pu
mishments of Crimes,
Theft,
Murder,
would be taken away too.
6. It has been esteemed an advantage of our Law, that it does not
inflict various and cruel Deaths; that which is inflicted for Treason is the only one, which has any appearance of severity; and even there in
the execution it is generally the same with other capital cases: but yet it must be also observed, that our laws are very liberal of the lives of offenders (r), making no distinction between the most atrocious and heinous Felonies, and those of a less degree. If a man commit a single Robbery, hanging is the punishment inflicted by law; if he commit
even this seems a needless piece of severity. In High-Treason, if the party refuse to plead, the Charge is taken pro confesso; nor would it be
inconvenience if it were so in other cases, or rather if it amounted
to a plea of Not Guilty, and the court thereupon proceeded to hear the
Proofs of the Fact; for it is as unreasonable to press a man to death
without a trial, as it would be to hang him without one : nor can a plea
extorted by such methods give any credit to the proceeding of the
Court more than if they had proceeded without one, which yet would be no injustice to the prisoner, who will not plead, when he may : nor,
on the other hand, is it reasonable, that the hardiness of a Criminal, if he should be able to endure such a lingering death, should exempt him
from the forfeitures the law has thought his crime to deserve :- if this advantage were taken away, the only temptation of standing mute
Robbery and Murder with never so many cruel circumstances, the punishment is still the same, and no more : so little regard is had in proportioning the punishment to the offence, that the letter of the law
makes no difference between picking a man's pocket (s) and cutting his throat; between stealing his horse (t), and firing his house about his
ears. How far this is either just or prudent, is left to every one's own reason to determine; it is certainly a strong temptation to an highway
man to add murder to robbery, when by that means he runs less danger of a discovery, and no danger of a severer punishment.
The Law of God to the Israelites required, that a person convicted ofTheft should restore two-fold (u), and in some cases four or five fold (r); (thus it was also by the Civil Law (y) ) and in cases where personal violence was offered, the Punishment was retaliation, “Eye “ for eye, tooth for tooth, hand for hand, foot for foot, burning for
“ burning, wound for wound, and stripe for stripe (z) :” and tho' this law may not in strictness be binding on other nations, yet undoubtedly where the reason holds the same, it is the best pattern for our imi tation (a).
Murder is indeed a crime, which even by the Law of Retaliation calls for a capital punishment; it is so peremptorily enjoined by the law
given to Noah, (and therefore binding on his posterity) “Whosoever
sheds man's blood, man shall his blood have questioned (c), whether any prince
101.
cap. 53.
shed” (b), that some power earth can
(s) Eliz. cap.
See Spelman's Life Edw. cap. 12.
king Alfred,
10. Edw.
(r) Ibid. cap. 22. ver. delicto, &c.
u) Exod. cap. 22. ver.
Instit. lib. tit.
Exod. cap. 21. ver, 24, 25. Levit. cap. 24. ver. 19, 20.
Grot. jur. bel. lib. cap. 20. 32.
Gen. cap. ver. Grot. jur. bel. lib. cap. See this Quastion discuss'd Bishop Barlow's Cases
- Deut. cap. 19.
- Conscience.
obligation. qua
c) b) a) c)&) de
“ 1
in de
7. 2 &3
9,
6. 4.
6. 1. §
2. de4&of
by
§
ex 1.
p. G.
all or be
2.
of§ §
5.
8 5.
1.
t) r)
4. §
2.
on
OF THE STATE TRIALS.
lawfully dispense with it in any case of a plain notorious Murder (d) : most certainly they ought not without some very important and pecu liar reasons, and not merely for favour or interest. The Law of God forbids, “that any satisfaction shall be taken for the life of a Murderer,
“ but he shall surely be put to death (se). ”
As to other less Offenders, it would be a more equitable and effectual
by their guilt incurred forfeiture wrong will done them disposing
forcibly carrying them away from their friends and relations into miserable Slavery America, without any better title, than what arises
taking away Life for every kind offence, consideration which the
xxxiii
Punishment to confine them to hard (f) labour at home; or, if they deserve sell them the Moors Spaniards abroad Idleness which the source their guilt, and generally draws them into the commission their crimes, and therefore nothing more proper re claim and deter them, than hard work and labour: however, they have
sure much more lawful method
kidnapping and stealing innocent men from off the African shore, and
-
from the difference
However, not enter into discussion the lawfulness justice
complexions.
later ages (g),
the punishments crimes widely different their own nature. The lower part mankind are apt dubious cases judge the heinous mess the Offence the severity the Punishments; but yet, when they see the same punishment annext, where the difference Guilt manifest and apparent, they soon lose the sense that extraordinary guilt, and instead conceiving worse the crime, they only blame
the cruelty the law. Further, when such numbers are continually ordered Execution, (as must the case where Death made the common punishment for ordinary crimes) the frequency the example
destroys the terror and makes less dreaded than going the Galleys any place hard labour. Besides, when the punishments
their natural liberty, that them that manner.
am making slaves than the practice
-
learned Spelman observes has not had due weight yet methinks long experience might have taught answer the purposes for which designed.
how ineffectual Death ultimum the highest rank; but when indiscriminately inflicted, leaves no room difference
supplicium, and therefore intended only for crimes
are very disproportionate the offence, defeats the end forasmuch those, who have any tenderness humanity
temper, will much rather forbear wholly prosecute, than
the Instruments putting such severe laws execution; instead there fore being means bringing the Offenders punishment, oftentimes the very reason, why they escape with impunity.
This severity our Law inflicting capital punishments upon the lighter crimes Pilfering and Thieving seems the more extraordinary, when one considers the great indulgence shewn one the first mag
nitude, and which productive much more mischievous
conse
our law and Adultery;
case
quences; mean Adultery, which
holden (h), does not
(d) By divers old Statutes Charter Murder. Dal. cap. 145.
granted
Pardon ought
general opinion, tho' must confess, see not, but that Adultery indictable our Law. Godolphin his Repertoriun, cap. 34. 10. admits
temporal offence against the peace the realm, for which sureties the peace
(e) Numb. cap. 35. ver. 31.
(f) Puf. Law Nat. lib. cap. 26.
(g) Spelm.
Mori Utopia, lib. verbo Lanicinium. See also Hales Hist.
notis 12. (h) Co. Instit. 488. Salk. Rep. 552. Galizard Rigault: This the
may required.
the turns leets VOL.
And lord Coke says, That ancient times was punishable
fine imprisonment the name Letherwite, Inst. -
them, their made
e
to in & toorofof
inby of
it of is
be
I. 2
of to it
is is
-or
in
as of ofis
of ofof ofto
be ofto
by I orin2
is
of of by of ofit,
ofin
of
a to
8. no
in
of I 8.
§ it
in to in a
byin
§ to
into it
in a
of is. in1. it
or
it so is
of isof
it
of of or of itis of of
of so
I orfor it a it,
of a
is so
of
itC. beofofof :
P. to us in
is of to
a is is ofano
2toisp. in be
- to it
Ito
by
bein of
is
be of
of
all
it its
xxxiv
PREFA C ES TO FORMER EDXTION 5
admit of any prosecution in a criminal way ; yet whether we consider
the guilt of the offender, or the mischief done to the injured party, there is no comparison between the one and the other. What proportion is there between a private Theft, perhaps of some trifle, which may soon be repaired, and the invasion of our neighbour's bed, (i) irreparably
robbing him of the satisfaction and comfort relations, and imposing upon him the charge
issue his own The one often done only
pressing hunger, but the other always
ungovern'd lust. Nor can with reason pretended, that the one crime public, the other private nature: the public con cerned the preservation the Property Goods, cannot less
the preservation the more valuable Rights, which affect the peace and quiet families. private stealing offence against the community The other much more so, having greater tendency
promote frays, and quarrels, public disturbances and breaches
the peace, from whence bloodshed and murders often ensue (k).
—What may the reason why our laws make light this enormous Crime, whether the countenance receives from great examples and the commonness the fault, some other reason, will not take upon me say but most certain that the laws other nations (l) had different sense and treated severer man ner by the Mosaic law was always punished with Death (m); and long before that law was esteemed “an Imiquity punished by
the Judges (n). ”—By old law Romulus (o) the Adulteress was put death; Adulterii convictam vir cognati, volent, necanto
and tho' afterwards the Civil Law, Ler Julia Adulteriis, punish’d it. only [per relagationem (p) with banishment, [per deportationem (g)] with transportation into some remote island; yet the, father the adulteress was permitted kill both his daughter and the adulterer (r), and some instances the husband had the same power (s); and chanced use that power case not allow'd, even then was not
—
seducing servant away from his master's service; and that the same reason extends
488. Inst. 206. allowed hands that indictment lies
the seducing wife away from her husband this there precedent Tremain's Entries, 299. 213. 214; The King against Montague, Jac. and another Offic. Cler. Pac. 311. Tho' these were Cases where the Wife went away with the Adulterer, yet the reason holds proportionably, where she
seduced breach her fidelity and trust, tho' without going away.
man debauch wife's sister, this has been held Misdemeanor punisi
family, confounding maintaining spurious allay the violence
gratify irregular and
able indictment information; this was the Case Ford lord Grey, for debauching the earl Berkeley's daughter: See Trials, 1682, and the
king against Heathcote, debauching Mr. Holworthy's daughter, Trin. Geo. (1720) Rot. 46. Sure not less injurious debauch another
man's wife; but still
severity the guilt
thought deserve;
betake himself civil action damages; tho' Mr. Wollaston says the
place cited below, the offence such made for the injured man thinks so, the law should framed, rather than aim making amends for after
(i) See Wollaston's Religion Nature,
nature that satisfaction can
generally does. this so,
deter from committing the crime, committed.
Ezek, cap. 18. ver. Methodo Historica, cap,
punishable only Misdemeanor, and not with that the offence requires, and the laws other nations have
that the injured party manner obliged
par.
(k) See Hen. (? ) Sce Godolph. Abridgment, cap. 34.
(m) Levit. cap. 20. ver, 10. Deuter. cap. 22. ver, 11; Susanna, ver. 41. John. cap. ver,
(n) Job, cap. 81. ver, 11. (o) See Bodinus
(p) Digest. Digest. (*) Digest,
divortiis repudis, lib. 24. tit. quaestionibus, lib. 48. 18. leg. Jul. adulter, lib, 48,
20.
(s) Ibid. 24.
tit. l.
6,it he is
&
it or is,
of
beto
to ofof
{ 1. Ifisato“toin
)q a be: toby3in ofas
addede
7,
to R. be a
or his p. It
a be to
all
3,5. g. in 1. i.
as
an
l.
4. -
be in beto
if of I of be
22.
no a
it A. of be
it uti to in
it an if his a
it, it as to 1 iftoB. to
to
in a of
it,
is
it,
tit. aas 5. § toas a
; of
of
so of it
is
8. 19. in a
or de
a beaso
If
he a 1 ofbe
of to p. 7 of
is
it an
a in a
at
c. isofofis it of
de&6. sofor ;
. to } an it
is &in ofis
it isIs ofas for p. on a be
it
of 8. ofit all ofof a
for
2. into he :
is of ofsoaa
OF THE STATE TRIALS.
to be punished with severity, but only to undergo a milder sort of punishment (t) : but at length when the empire became Christian, under the reign of Constantine, Adultery was made capital, Sacrilegos
nuptiarum gladio puniri oportet (u), and so it continued to Justinian's (1) time and long after. Some are of opinion that it was so even while the empire was Heathen, under the reign of Diocletian and Maximian, it being enumerated in one of their laws (y) among the capital Crimes.
has not, nor indeed could affix to each a certain and determinate Penalty, Misdemean
this is left to the discretion and prudence of the Judge, who may punish Ors. it either with Fine or Imprisonment (z), Pillory or Whipping, as he shall
think the nature of the crime deserves: but though he be intrusted with
so great power, yet he is not at liberty to do as he lists, and inflict what arbitrary punishments he pleases; due regard is to be had to the quality
and degree, to the estate and circumstances of the offender, and to the
greatness or smallness of the offence ; that Fine, which would be a mere
trifle to one man, may be the utter ruin and undoing of another; and
those marks of ignominy and disgrace, which would be shocking and grievous to a person of a liberal education, would be slighted and de
spised by one of the vulgar sort (a). A Judge therefore who uses this discretionary power to gratify a private revenge, or the rage of a party, by inflicting indefinite and perpetual Imprisonment, excessive and exor bitant Fines, unusual and cruel Punishments, is equally guilty of per verting justice and acting against law, as he, who in a case, where the law has ascertained the penalty, wilfully and knowingly varies from
As to smaller Crimes and Misdemeanors, they are differenced with Of smaller such a variety of extenuating or aggravating circumstances, that the law Crimes and
measures were man who guilty
observed these discretionary Punishments,
Misdemeanor might worse condition
capital crime; might exposed an Imprison
than had committed
indefinite and perpetual Imprisonment, punishment not favoured ment, and by law, being worse than death itself (b): nor does extravagant Fune.
Fine, which beyond the power the offender ever pay differ much from for his Imprisonment depend upon
raise, condition,
which will never his power perform, the same
absolute and unconditional
Rights and Liberties the Subject,” &c. The same Statute declares the Illegality unusual and cruel Punishments.
was the non-observance these Rules, which occasioned the disso
were pay such
XX^{V
his offence deserves, lieu according
the offender not able
must then submit corporal punish
Fine
ment
luat
quires the saving every man's contenement, (viz. his means livelihood) extends only Amerciaments, which are ascertained Jury, and not Fines, which are imposed the Court; but nevertheless those Fines ought moderate and within bounds; where court has power setting Fines, that must understood setting reasonable Fines (e) “an excessive Fine,” says lord Coke, (f), “is against law,” (g), and declared the Act (h) for declaring the
the old Rule, Quinon habet crumena, cute (c. ). true, that Clause Magna Charta (d) which re
(t) Digest. leg. Cornel. sicariis, lib. 48. tit. leg. Jul. adulter. 38.
Digest.
Nat. Obs.
(u) Cod. (r) Institut. (y) Cod.
leg. Jul. adulter. lib. tit. 30. publicisjudiciis, lib. tit. 18.
transact. lib. tit. 18.
(a) Wollast. Relig. 25, Grot. jur. bel. lib.
Rep. 4. 44. (g) See John Hawles's Remarks Fitzharris's Trial, &c. (h) Gul, Mar, Sess, cap.
(2) Co. Rep. fo. 59.
Law Nat. cap. pejor morte, Trials.
Puf. (b) Vita (e) Co.
Rep. 38. (fl.
20. 33. (c) Co. Instit. 173. (d) Cap. 14.
on
a If Itto no
fo. of 8
de
in in as : . #
if as he
b. b. de ad
8 de ad
to to of
is
is
11 3.