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OF THE STATE TRIALS.
arelief as the urgency of the case requires; another Remedy is there fore provided, viz. the Writ of Habeas Corpus (y), which is called festi num remedium. By this Writ the gaoler is obliged immediately to bring
the body of his prisoner before the Lord Chancellor, or one of the twelve Judges, and to certify by whom and for what cause he stands commit ted; whereupon the Lord Chancellor or Judge is requir’d (unless he be legally committed for an offence not bailable by law) to discharge or
bail him, except in case of Treason or Felony plainly and specially ex pressed in the Warrant (z); and even in those cases, that the innocent may not be worn and wasted with long imprisonment (a), the prisoner
xxvii
must be brought to his trial within a reasonable time ; for if he be not indicted the next term or sessions after his commitment, having duly en ter'd his Prayer, he shall on the last day of the term or sessions be ad mitted to bail, unless it appear to the Court upon oath, that the Witnes
ses for the king could not then be produced: and then, if he be not in dicted and tried the second term or sessions after his commitment, he shall be quite discharged (b).
But because these precautions favour liberty may render useless sending the Subject remote private prisons (c), where
may lose the benefit the king's Commission Gaol Delivery (d), and the king's writs rendered ineffectual for want knowing whom,
direct them (e); prevent this inconvenience, the law has further provided, that subject England shall sent prisoner into any part
beyond the seas, either within without the king's dominions (f); nor
shall any compelled against his will serve the king out the realm, Best under pretence service, ambassador the like,
should sent into real banishment (g) nor can any regularly impri soned within the realm any other place than the common County Gaolor other publick accustomed gaol (h); for which reason gaoler cannot authorized any warrant deliver his prisoner into the custody an unknown person (i) Nor can any new gaol, according the opinion
lord Coke (k), erected, but act parliament one statute ordains, that none shall imprisoned Justices the Peace, (some say this extends other judges and justices, (m) but in the com mon County Gaol, saving lords and others, who have gaols, their frau chises.
Some will ready object, these laws were force, that Sub ject shall not compelled serve the king out the realm, how comes pass that divers subjects (not only mariners, but others) have been
taken virtue Press-Warrants (n), and
ship and carried beyond sea not lawful
antient accustomed gaols, how comes about that
been taken messengers (o), who have imprisoned them their own houses, detaining them there not two three days only, (the time allowed law take their examinations) (p), but for weeks, months, thereby making gaols their houses, though they have neither the grant such franchise, nor any act parliament make them
These are questions which will not undertake give satisfac tory answer; but shall leave that others, who are more nearly con
cern’d and better able
(y) Co. Inst. 55. (2)
(b) the Judges
the 34th Eliz. Ander. Rep. 397.
can only say, that whatever may Car. cap.
(a) Co. Inst. 315.
was complained
(d) Co. Instit. 43. 315. Cro. Eliz. 830. (e) Co. Instit. 53. (f) Car.
cap. (g) Co. Instit. 47. (h) Co. Rep. 119.
Co. Instit. 53. How prisoner may lawfully removed, see Car. cap.
$9. (k) Instit. 705. (l) Hen. cap. (n), Co. , Instit; 43. (n) Sec. Car, (0) Mod. Rep. 79. (p) Cro. Eliz. S90.
force put aboard commit any but many persons have
Car. cap. (c) This
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xxviii
PREFACES TO FORMER EDITIONS
fact have been practised, I do not know that such practices have ever had the sanction of one judicial determination, and for my part must confess myself unable to reconcile them to the laws of the land. al
It must be owned that the guards and fences of the Law have not ways proved an effectual security for the Subject; the Reader will in the course of these Trials find many instances, wherein they, who held the sword of justice, did not employ it as they ought, to the punishment of evil-doers, but to the oppression and destruction of men more righte ous than themselves. Indeed, it is scarce possible to frame a Body of Laws, which a tyrannical prince, influenced by wicked counsellors and corrupt judges, may not be able to break through ; they may sometimes check, but will never be able to stop the career of violent and furious men. The Law itself is a dead letter, Judges are the interpreters of and they prove men
sense they will
they are supported
repeated iniquities they grow intolerable,
convulsions, which may last end their own ruin. This shews how valuable blessing upright and learned judge
concern the public, that none preferr'd
whose ability and integrity may safely depended pro dicis calamitis innocentis (q).
Further visions in cases
of Treason.
conscience nor integrity, will give what however different from the true one and when superior authority, will for while prevail, till by
oriumtur leges (r): Leges egregist apud bomoser delictis aliorum gigmuntur (s).
cases Treason, wherein the crown more immediately interest
ed, the party accused may now demand Copy the whole Indict
ment (t), five days least, and
least before his trial; has
not only matters law, but
benefit the usual process (y) ses; who, when produced, are
the names the Jurors (u) two days right the assistance counsel (r), matters fact; may now have the compel the appearance his Witnes
and throw the State into those
and what great that office, but such Ignorantia ju
However, amidst the mischiefs caused the arbitrary proceedings these wicked and unjust Judges, there one good effect has follow’d from them; them we owe those additional provisions, which have been since made for the security the Subject: malis moribus bona.
those tended prov’d
examined oath (z), well
the part the crown (this last privilege has been since (a) ex
treasons and felonies). Each species treason must some overt-act (b), and there must least two witnesses each species (c). the accused peer, not only some pick'd out
the whole body, but the peers must summoned the Trial, least twenty days before (it).
There are other Alterations (e) made favour the Subject, which the legislature has not thought should take place during the life the present Pretender. After his decease Attainder for Treason will work disherison the heir, affect any other right, than only that the offender during his life the prisoner will then entitled have List, not only the Jury, but the Witnesses produced against him the Trial, with the addition their respective professions and places abode, delivered him along with the copy the Indictment,
the presence two witnesses, ten days before his trial. The first these Alterations being mitigate the punishment those, who shall by
the law adjudged guilty, might thought
unseasonable relaxa immediate danger but
tion, while there should
any apprehensions
(q)
20. Some instances
(r) Co. Instit. 161.
this kind are there mentioned. (t) Gul. cap.
Co. Instit. 30.
(s) Tacit. Annal, lib. 25.
(r). Ibid. (y) Ibid. (2) Ibid.
(u) Ibid.
Thus ought always have been. See Co. Instit. 79. (a) Ann.
cap. (b) Gul. III. cap. (c) Ibid. (d) Ibid. 11. (e) Ann. cap. 21.
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OF THE STATE TRIALS. xxix
why the others should be defer'd so long, which are intended only as the proper guards of innocence against violent prosecutions, I will not
pretend to guess; for the heinousness or mischief of the crime charged is so far from being a reason, why the prisoner should want assistances, that
it is a very strong reason to the contrary : it being as easy a matter to impose a false charge of a great, as of a small crime.
These are some of the Privileges of a British Subject, which no other subject in the world can boast of. But after all it must not be said, that
our Laws will admit of no Alterations for the better.
1. Even in that darling and deservedly esteem’d Privilege of being Observations
tried by Juries, some change might, I was going to say, ought to be on Juries.
made : the law requires, that the twelve men, of which a Jury con sists, shall agree before they give Verdict; they don’t, they
must undergo are be confin’d
greater punishment than the criminal himself; they one room without meat, drink, fire candle, till
they are starv'd. son for this usage:
would pretty hard assign any tolerable rea has seldom never happen'd, I'm afraid
has sometimes been prevented only by the unjust compliance
some the Jurors against their own consciences. For however plain some cases may be, others there are, wherein they cannot avoid
differing their judgments; nor doing; many men, many minds;
light. To what end therefore are they
may indeed force them outward seeming agreement against the
means informing
opinion; which, fear, the best reason great many are able give. —
said, that otherwise one stubborn fellow may stand out against all the rest, even contrary the convictions his own mind, very
dictates their consciences; but can never their judgment, convincing their understanding.
have known, when such unjust Wer dict, could give better reason for than that the others were that
(as
agreements
procured restraint are) better than none.
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
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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
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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
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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
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7. 2 &3
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6. 4.
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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. -
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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.