)
/> good earnest believe, we have this respect any great matter boast of.
/> good earnest believe, we have this respect any great matter boast of.
Complete Collection of State Trials for Treason - v01
Nor are the Publishers conscious they have omitted one remarkable Trial that could possibly be obtain'd, unless that of Mr.
Hampden in the Case of Ship-Money, and
that of my lord Strafford; both which being to be found in Mr. Rushworth, are already in the hands of most gentlemen, who are suppos'd to purchase these : and the inserting them could be of no other use than to increase the bulk, and enhance the price of the Book. There is indeed another Account of my lord Strafford’s Trial, which differs in some instances from Mr. Rushworth's, and is more concise; and this it has been thought proper to insert.
And as the Union of the two kingdoms of England and Scotland is so near com pleated, and there remains little else to distinguish us at present but the municipal laws of the respective kingdoms, it has been thought advisable to add some remarkable Scots Trials: in which (to do that nation right) are discovered #. learning, elo quence, and strong reasoning. And indeed as the Civil Law prevails very much there, they have at least as large a field to exercise their parts and learning as our more Southern orators, who are so unalterably attach'd to their Common Law; and it must be admitted, that the Party accus’d has in Scotland the fair play imaginable he has what Counsel thinks fit; has Copy his Charge his own language his Counsel are permitted inspect the very Depositions against him before brought Trial; and they are
little haste dispatch State-Prisoner, that the This specimen Scots Trials, will present be we have one Senate, and one Legislature, may
Trial often lasts some months.
acceptable the curious
hereafter give birth the introducing such Methods Trial each kingdom, either shall appear founded the greatest reason and justice.
As any Partiality this Undertaking, seems almost needless disclaim it; for the Reader has the Evidence and Arguments entire, without any alteration di minution. true, falls out History, will here: the farther we search into Antiquity, and the higher we go, the less perfect will our Accounts be; the same exactness cannot expected there Trials more modern date but thus much may said for the more antient Trials, that they are the most perfect
and compleat that could possibly procur’d—We shall detain the Reader than observe, that this Collection will not only useful the Learned
longer the Law,
may fall under criminal Prosecution,
well illustrates our English History: and there Divinity Politics, but the Reader will find has been
and those whose misfortune
many instances corrects
scarce controverted point
fully debated here by the greatest men our nation has bred. And Justness Argument and true Eloquence have any attraction, and these are talents worth im proving, here will found the greatest collection fine Speeches, and Arguments,
the most important subjects, that have hitherto been exhibited the world.
but
on
a
to to
to
to
to
in as in it
be
to to in be
he ;
of
a
be
so
of
in as
it
to as
it
is be
as be
in
orto as in
in it
if ,
to
it
at
:
of is in
as in
he is ;
be
on
so
he a
to do
a
in
no
be
as
of a
:
or
It
to
it
so
of to it
of all
for English gentlemen general, well for those ticular; those who will take the pains peruse will
The Twelve Judges, before whom this Case was argued and the Council both sides unanimously agreed, that argued any Court Judicature; they declared
concern and importance, and there was such multitude
Records (above three hundred) quoted both sides, and
the Long Robe par convinced this truth, the Exchequer-Chamber,
Case like this ever was
matter the highest Cases, Precedents, and
many excellent Argu
OF THE STATE TRIALS. XXI
MR. SALMON'S PREFACE TO THE
CASE OF SHIP-MONEY, j
WHICH WAS PRINTED IN A SEPARATE VOLUME, BY WAY OF SUPPLE MENT TO THE FIRST EDITION.
THE Collection of StATE TRIALs in four Volumes in Folio, being a Work very useful and necessary, to make it more complete, it was thought fitting (at the desire of several persons of eminency and distinction in the law) to add to it the remarkable Trial of Mr. Hampden, in the Great Case of Ship-Money (between his majesty kin
Charles I. and that gentleman). For that reason therefore we caused it to be
of the same size, and on the same paper: tho' it would have been inserted in the Collection, could the Proprietors of this Copy have been prevailed upon to have
parted with their property to the Undertakers, on their terms, which were very un reasonable. It is true, there are some of the Speeches in Rushworth, (a Book very
scarce, and in few hands) but then their number is very small, and without the Re
cords and other material Process herein contained, which are carefully printed from
such authentic Manuscripts, that envy itself cannot detract from their intrinsic worth
and value: and those who would vainly endeavour to impose on mankind, That this
Trial is in Rushworth, not only discover their ignorance, but shew themselves guilty of most scandalous and invidious reflections.
We shall therefore say nothing of the excellency of this Work, which is so useful
ments made, the greatest Learning, that the whole would seem almost incredible,
but those who will read them with attention.
How this Great Case went well known every one who has the least acquaint
ance with History; the Times were then troublesome, and some people took hence occasion blow the coals dissension, which last broke out into that dreadful conflagration, ended the destruction Unfortunate Monarch, and compleated the ruin the best Constitution the world. All the Judges (long before this Case was argued the Exchequer-Chamber) gave their opinions writing under their hands for the King but whether, this Affair, those sages the law acted like Faithful Counsellors, must left the learned that profession determine. Every man will think inclined; however, most certainly,
the greatest concernment and importance, for Prince have about him Faithful Counsellors; for after all, them never wise, good, and just, undoubted
truth, that Princes see with others eyes, and hear with others ears.
let
in
as up
is
in
so
a
to in
a
it is
of
an
of
in as
be
;
of is be
he
to
as
in to
of an
it
to
it,as to noin be
in
it in is
in
ofto in
of
of
of to
on
at
so ofbe a
of
to
all
on
all
in
xxii PREFACES TO FORMER EDITIONS
MR. EMLYN's PREFACE
To THE secon D EDITION of THE STATE TRIALs, IN SIx vo LUMEs Folio : PRINTED IN THE YEAR 1730.
THE favourable reception which the First Impression of this Work has
met with from the Public, is a sufficient recommendation of it in general;
The usefulness Collections are chiefly intended for the preservation separate Pieces,
of the work to which by being scattered up and down, are often length time either
History,
The Professors and Students the Law will not the only persons,
xlnd AElo quence.
thority the respective Courts, pens otherwise, the Reader of the Trial.
Such here
but perhaps it may not be unacceptable to the Reader to point out some particular Advantages
ofthe Uses and oof
the Study of quite lost, hard come at: this, indeed, care not worth be
the Law,
use; but the Pieces here pre them must appear first
stowing those which are little
serv'd are evidently such, Collection
sight very beneficial all studious
especially into that principal branch them, which concerns the Life and Liberty the Subject: for since the Laws England are
i. measure grounded upon immemorial Customs and Usages, the Precedents
and Examples former times must singularly useful, not absolutely
necessary right understanding
very much depend upon Statute Law, either the Crimes themselves,
known, but the Usage former cases: and even those instances, which fall under the direction the Statute Law, the best Expositor of those Statutes the constant received Practice, ever since they were made, optima legum interpres consuetudo. (a)
the Punishments them, being for the most part declar'd act par liament: yet the Method Practice the Trials those Crimes
the main govern'd Common Law rules, and consequently not be
who may receive benefit from this Work: here will matter also In
struction and Entertainment who are delighted with History, in quisitive after the transactions the former present times; many parts
History will here illustrated and set true light; the Reader
may here see, were, with his own eyes, not needing representations others, which are often full partiality according the party and disposition the Historians.
trust the prejudice,
But the nature this Work admits not such turns and disguises, other general ac counts are but too justly chargeable with; the following Trials being plain Narrations Sayings and Facts, for the most part published Au
indifferent Hands; where hap informed the Title the Head
Style, luxuriancy Fancy, may eloquent Speeches and learned Ar subjects; tho' must own'd, inter not altogether deserve that character.
And since Scotland now become part this Kingdom, has been thought proper insert some the Proceedings that country, which
(to that Nation right) are discovered great learning and eloquence: *_
are taken with fluency entertain'd with variety many very important
guments
mixed with some others, which
(a) Co. Instit. 75.
into the Laws this
them. —And tho’ Criminal Cases
nation,
do
on
be
to
as beof
4 of
do
ofto all
aof
to
is
by a
of as is of
in
in
a in
in
it by
toisof
in or
at
of or it
inor of ofa of
it
at
in a
be
of
of
of
is or by
of be of or
ofof do
of on to toor
ofit of be by
to be
to
a of inof as
of of
a of in no
it. itof is
as bebe or to
in of
if
by of of
of
to orof
OF THE STATE TRIALS.
and it must be admitted, that very considerable advantages are there al lowed to the Prisoner, which we in England do not enjoy; he has what
Counsel he thinks fit, and a Copy of the Charge in his own language; his Counsel are permitted to inspect the Depositions against him before he is
brought to his Trial; and they are so little in haste to dispatch a State Prisoner, that the Trial often lasts some months.
Names of such as behav'd impartially on the Bench, without prejudicing ter of the the rightful Prerogatives of the Crown on the one hand, or betraying the Judges. legal Privileges of the Subject on the other; without bearing hard upon
the Innocent, or shewing any unallowable favour to the Guilty, will by this means be remember'd with honour, and left upon record to their last ing praise and commendation.
But it has not always been the good fortune of England to have the Bench adorn'd with such excellent persons; the Reader will in the course of these Trials light upon certain periods, wherein the Judges, who ought by the duty of their place to be the great Barrier, and to act im partially between Prince and People, have notwithstanding deliver'd
Opinions in direct contradiction to the known fundamental Laws of the nation, and as far as in them lay, sacrificed the Constitution and Liberties of the kingdom to the pride and ambition of an arbitrary monarch. This generally ended in the downfall of such Judges, and the Ministers, whose tools they were; the Politics of those times not being arrived at that height, to know how to influence the representative Body of the Nation: for what need could Ministers have to corrupt the Interpreters of the Law, if the Makers of it were intirely at their devotion ?
Others there have been, (as the Reader will have too frequent occasion to remark) who regardless of Right and Wrong, and the solemn Oaths they had sworn, have under colour Law, but yet open defiance natural Justice, made scruple murder the Innocent, and by foul un warrantable practices acquit the Guilty, just they received their di
rections from, thought would best pleasing those above them such monstrous pitch bare-faced iniquity were they arrived, that they stuck not determine the same Point different ways different times, making the Law mere nose wax, but usually turning the
destruction the person tried before them (b). These Volumes will im partially transmit their memory posterity, with that reproach and in
famy, deservedly attendant upon Traitors and Murderers; and this not general characters, which are scarce rely’d on, being oft accord
Another Use of this Work, will be the doing justice to those Judges To form a and Counsel, who respectively presided or practis'd at these Trials : the right charac
ing o Writer, by Facts;
the inclinations the but real their Behaviour
was, own true colours: by which the names, will easily distinguish the calm and
who, without any regard the decency his character, uses his autho rity other end, than silence Reason and Truth, and blustering and clamour worry the Innocent death.
The like Distinction will readily occur with respect those, whose And Counset. Office was the Bar. Some will find, pressing nothing illegal against
the Prisoner, nothing hard and unreasonable (however strictness legal) using artifices deprive him his just Defence, treating his Witnesses with decency and candour; being not intent upon convicting the Pri soner, upon discovering Truth, and bringing real Offenders Justice; looking upon themselves, according that famous Saying queen Eli zabeth, not much retained pro Domina Regina, pro Domina Veritate (c. ).
(b) Sir John Hawles's Remarks the Trial Charles Bateman. (c) Co. Instit, 79.
will here appear just Reader, without the sedate Judge, willing
right Information,
determine according Truth and Justice, from the hectoring bully,
hear and receive
and desirous
xxiii
3
so
to asnono so
a of
of
.
of
by
at it
as
as
to
at
to
to
or
to to
it
it
to
by to
to
he
on of intobeto
to as of
to no
a
to of of
to to its of of
to
so
of
to be
in
to
to
in all
to
:
of
xxiv.
PREFACES TO FORMER EDITIONS
These will appear in a different light from others, who with rude and boisterous language abuse and revile the unfortunate Prisoner; who stick
, not to take advantages him, however hard and unjust, which either his ignorance, the strict rigour Law may give them; who force
stratagem endeavour disable him from making his Defence; who
they appear,
row-beat his Witnesses soon tho’ ever
bo
duty their place
the perusal this Work, such persons will too often arise view; and
could wish for the credit the Law, that that great Oracle the
Lord Chief Justice Coke, (d) had given less reason numbered among this sort.
The Gentlemen that Profession, whether imploy'd criminal Pro secutions civil Actions, are not blame for doing their best sifting out the Truth, and making just Observations favour their Clients; yet after having done they should last find the merits the Cause
declare the whole truth; and
they can put them out delivering their Evidence:
nance, and confound them
who are brought Trial, right
guilty; pensation from the obligations
they, others, above
not
and
convict
Truth and Justice.
these should below men honour, not say men conscience: yet
would disparagement them the prejudice Truth and Justice:
for how just and reasonable soever
cause while nothing appears but that may right, yet when the
course the Evidence proves manifestly otherwise, then high time
desert it; for they must needs think, that Fees Retainers will be just Excuse, either this world another, for being wilfully instru
mental province
belongs
the one Pleader,
the Witnesses, the Guilt will and ought further Advantage this Collection
the other side, am sure desist from attempting any thing
may undertake the defence
willing counte
were the wrong,
peculiar
had dis
Such methods
To shew the ercellency of the English laws.
(Civil Suits.
his door.
that will afford frequent
Ecclesiastical Courts. )
good earnest believe, we have this respect any great matter boast of.
Nor can suppose they are our Ecclesiastical Courts, which make the envy our neighbours: the petty but chargeable Suits, which are
(d) See the Trial Sir Walter Raleigh, 1603,
promoting injustice and wrong: and tho' part
determine either the Law the Fact, the former the Court, and the latter generally the Jury yet
the other misled the artful turns and insinuations any material truth suppress'd
opportunities the careful Reader observing the excellency our Laws, and the advantage Englishman thereby enjoys above his neigh
bours. When meet with Author extolling our laws above those other countries, and representing upon that, well other accounts,
the envy around us, presume meant chiefly with regard
Criminal Procedures for Civil Suits, when consider the tedi
ousness and delays such Suits, necessarily arising from our Methods
and Forms Law; the various Offices, and sometimes Courts, they must pass thro’, before they are finally decided; the exorbitant Fees Counsel, whereto the Costs recovered bear proportion; the duties arising the crown from many incidents every cause; and above all the nicety special Pleadings, whereby the justest cause the world, after having with great trouble and expense been conducted almost period, may thro’ the mistake letter (often occasioned by At torney's Clerk) irretrievably lost,
io things, say, are considered, hard
least turned round begin costs him, who has all the while
again, and that not without payment
property:
imagine, that any one can
been the unjust invader and
another's
when these
their which either the misunderstood by his baffling
of
it
of all do
A. D. ,
I
lie no to no
it of to to
I ofI
to
orto in of on or to
orof
of in a
by
at
in
is is,to or be be
to
an
it,
to
of
or
in
to
a as if
to
ustoin a to of
ifof
of of of in
it so as to
toas
Aof
a to a to lieif
Iin
or
of of I to all
ofbe
of to
all
be of be :
init I
asI an to
an of
so, all
as
of of if in
asto of allasof
is
toor it itat
ofof to
us
it
or itto to
as
; be is no
of in
of or
all noasattobein to
itorit
be of
ofto
of
to in of or of by
or
OF THE STATE TRIAL3. XXV
there often instituted to the no small damage of both sides, only to in dulge the private passions of those who institute them ; the constant practice of denouncing Excommunication for the minutest contempts (e), (a punishment originally designed only for such flagrant vices, as render'd a man unfit for Christian communion, which formerly was greatly dreaded, but is now by these means slighted and despised ;) and the pe cuniary commutations avowedly permitted for Penances (f), are things, which will not allow me to make any such supposal.
The excellency therefore of our Laws above others, I take chiefly to As Criminat
consist in that part of them, which regards Criminal Prosecutions: here indeed it may with great truth and justice be said, That we have
by far the better of our neighbours, and are deservedly their admiration and envy.
This might be made to appear in many particulars. In other Coun tries the Courts of Justice are held in secret; with us publickly (g) and in open view: there the Witnesses are examined in private, and in the Prisoner's absence; with us they are produced face to face, and deliver their Evidence in open court, the Prisoner himself being present, and at liberty to cross-examine them : there the Judges determine both Law and Fact; with us, if the Fact be denied by the Prisoner, it must be tried
Prosecutions.
by twelve men of his own rank and condition, (h) who are sworn to go
according to Truth and Evidence, and are therefore called a Jury; to
any of these the Prisoner may except for just cause, and in capital Cases
to a large number without cause: and unless this Jury declare him guilty
of the Charge, the Judges can proceed no further against him. If the
Prisoner be a peer of the land, his Trial on Indictments for Treason,
Felony,
twelve. applied
but this practice which Englishmen are happily unacquainted with, enjoying the benefit that just and reasonable Maxim, Nemo tene
true
tur accusare seipsum private; with
answer the end
other countries the Criminals are often executed always openly and public, being necessary
Justice, that public example made Offenders
Misprision either, must by other peers not fewer than other countries, Racks and Instruments Torture (i) are force from the Prisoner Confession, sometimes more than
order deter others from the like crimes; but where the Trial
and Execution are private, not only defeats the end Justice,
but affords opportunity secretly destroying which must needs expose the subject variety
(e) Cr. Car. 196, 199. Mo. Rep. 540. Latch. 174. 204.
489, 620. Rol. rep. 384. Godolph. Abridg. , 39. (g) Co. Instit. 103. (h) Fortescue Laud. Leg. Angl. cap. 28. (i) Ibid. cap. 22. This
was the practice the antient Civil Law. See the Fragments Julius Paulus, hb. Seatent. recept. “Tit. 14. quaestionibus habendis suspicione aliqua
“reus urgeatur, adhibitis tormentis sociis sceleribus suis confiteri compel ‘litur:-Reus evidentioribus arguinentis oppressus repeti quaestionem potest,
maxime, tormenta animum corpusque duraverit. ”—See also whole Title the Digests quaestionibus, lib. 49. tit. 18. See Instances those who en
was use, had no appears of.
dured these Tortures Valer. Max. lib. cap. lib. cap. But absurd and unreasonable practice was this, that even the antients, among whom
from 23. the said Title ‘de quaestionibus: Resest fragilis, periculosa, quae veritatem fallit;
“nam plerique patientia, sive duritia tormentorum tormentum contennunt, ‘ut exprimi eis veritas nullo modo possit; alii tantâ sunt impatientia, quo 'vis mentiri, quam pati tormenta, velint; sit, etiam vario modo fateantur,
“ut non tantum se, verum etiam alios comminentur. Quintilian. declam. 18. On ‘nium quidem incertorum suspiciones pessine semper corporibus incipiunt; ‘nec bene cujusquam moribus illain partem corporis interroges, quie non
animo, sed dolore respondet. ’ See more this purpose Montaigne's Essays,
Book cap. and Grotius's Letters, Let. 693. wherein approves the omis
*ion this practice England.
-
innocent men, fears and dan
(f) Co. Inst.
‘ of 2.
in‘
de in
si 2. in
to Inor
d
he in
ut
ita
3. &
all
5.
de
toitaetas3.
27to
be
a
et
beit
of in
4.
a ofof 2 of
ut
it
in ;
of it,
dede
a
in a
in
of
5.
inin is to
l. in; of 1. 8, Si2
§ of of
of
so
to
ofde an
of us
is :a
ofit a
et &p. a in
in
of
to
xxvi.
PREFACES TO FORMER EDITIONS
gers inconsistent with the liberties of a free people. —These are great and noble Privileges, which we may justly value ourselves upon,
and should be very unworthy we did not highly prize them.
Cases HIGH-TREAson the English subject has peculiar advantages:
This Charge general nature, and therefore more difficult make Defence (%); subjects the offender severer punishment, than other crimes; the crown more nearly concerned, reason whereof the Prisoner has more powerful adversary contend with this the
fatal engine often employed by corrupt and wicked ministers against the noblest and bravest patriots, whose laudable opposition their per
nicious schemes those ministers are very ready construe into Treason and Rebellion against the Prince thereby confounding their own and the Prince’s interest together, the one could not opposed without the other. Our ancestors therefore thought this case, wherein the Subject needed more than ordinary assistance; lest therefore too great latitude should left the arbitrary determinations Judge, who
Particularly in cases of High Treason.
the creature the crown, they took care particularize the several species Treasons express law (l): and guard against all
forced constructions and innuendos, was
vided, that Treason should proved
deed; and that innocent person might
the perjury single witness, was afterwards provided (m), that none
should convicted without two positive Witnesses.
Nor does our Law excel others only defending the Life the sub
ther order,” with such like conclusions.
scribed what shall necessary legal Commitment,
but has also illegally com
Action Indict Imprisonment,
§.
ment founded Magna Action false
provided divers Remedies (u) case any one should mitted, detained the party injured may have
Writ homine replegiando, and Writ odio atia (r).
But precious the Liberty man’s person the eye the law,
that none these Remedies was thought sufficient, not giving speedy
(k). How great latitude was taken this matter may appear from the antient Law-Books, where the lying with the nurses the king's children, the killing
man sent
pl. 40. Briton.
(l) Edw.
Pears from the Petition
they complain the Justices did adjudge several they did not own Treason. This Petition
that year. No. 171.
(r) Co. , Instit. 52.
(b) Co. Inst. 501. (u) disused; what the nature
(s) Car. Co. Inst. 55.
errand 43.
occasion this Law ap was founded, wherein Traitors, causes which
the Parliament Rolls
Stat.
cap. That this was the
(m) Edw. cap, Dent, cap.
(n) Co. Instit. (q) Co. Instit. 187. cap. Co. Inst. 616.
380. (. . . ) Cap. 29. (p) Instit. 46,
ver.
the same law farther pro some manifest plain act
the king, were adjudged Treason. Assiz. Ed.
the Commons
which entered
danger suffering thro'
And in the
provisions for ject against any injurious attacks, but also care and concern for the
the Liberty of Liberty and Freedom his person. How absolute swever the sovereigns
the Subject.
other nations may be, the king England cannot take detain
the meanest subject his mere will and pleasure (n): one privileges confirmed by Magna Charta (o), that man shall re
strained his liberty, but by the law
(p), Indictment Presentment
king's Writs out his ordinary courts
rant. Now every lawful Warrant (r) must grounded upon oath; must plainly and specially express the cause commitment (s); must be under the hand and seal one, who authorized expressing his
committeth, and must con law,” and not until fur Nor has the law only pre
office, place and authority (t), whereby clude, “until delivered by due course
the land; that says lord Coke good and lawful men, the justice (q), by lawful War
(r) This Writ now quite was, see Co. Inst, 43.
the
of
a
in a an a is of of
it
& 2
2
3 11.
. . .
)
/> good earnest believe, we have this respect any great matter boast of.
Nor can suppose they are our Ecclesiastical Courts, which make the envy our neighbours: the petty but chargeable Suits, which are
(d) See the Trial Sir Walter Raleigh, 1603,
promoting injustice and wrong: and tho' part
determine either the Law the Fact, the former the Court, and the latter generally the Jury yet
the other misled the artful turns and insinuations any material truth suppress'd
opportunities the careful Reader observing the excellency our Laws, and the advantage Englishman thereby enjoys above his neigh
bours. When meet with Author extolling our laws above those other countries, and representing upon that, well other accounts,
the envy around us, presume meant chiefly with regard
Criminal Procedures for Civil Suits, when consider the tedi
ousness and delays such Suits, necessarily arising from our Methods
and Forms Law; the various Offices, and sometimes Courts, they must pass thro’, before they are finally decided; the exorbitant Fees Counsel, whereto the Costs recovered bear proportion; the duties arising the crown from many incidents every cause; and above all the nicety special Pleadings, whereby the justest cause the world, after having with great trouble and expense been conducted almost period, may thro’ the mistake letter (often occasioned by At torney's Clerk) irretrievably lost,
io things, say, are considered, hard
least turned round begin costs him, who has all the while
again, and that not without payment
property:
imagine, that any one can
been the unjust invader and
another's
when these
their which either the misunderstood by his baffling
of
it
of all do
A. D. ,
I
lie no to no
it of to to
I ofI
to
orto in of on or to
orof
of in a
by
at
in
is is,to or be be
to
an
it,
to
of
or
in
to
a as if
to
ustoin a to of
ifof
of of of in
it so as to
toas
Aof
a to a to lieif
Iin
or
of of I to all
ofbe
of to
all
be of be :
init I
asI an to
an of
so, all
as
of of if in
asto of allasof
is
toor it itat
ofof to
us
it
or itto to
as
; be is no
of in
of or
all noasattobein to
itorit
be of
ofto
of
to in of or of by
or
OF THE STATE TRIAL3. XXV
there often instituted to the no small damage of both sides, only to in dulge the private passions of those who institute them ; the constant practice of denouncing Excommunication for the minutest contempts (e), (a punishment originally designed only for such flagrant vices, as render'd a man unfit for Christian communion, which formerly was greatly dreaded, but is now by these means slighted and despised ;) and the pe cuniary commutations avowedly permitted for Penances (f), are things, which will not allow me to make any such supposal.
The excellency therefore of our Laws above others, I take chiefly to As Criminat
consist in that part of them, which regards Criminal Prosecutions: here indeed it may with great truth and justice be said, That we have
by far the better of our neighbours, and are deservedly their admiration and envy.
This might be made to appear in many particulars. In other Coun tries the Courts of Justice are held in secret; with us publickly (g) and in open view: there the Witnesses are examined in private, and in the Prisoner's absence; with us they are produced face to face, and deliver their Evidence in open court, the Prisoner himself being present, and at liberty to cross-examine them : there the Judges determine both Law and Fact; with us, if the Fact be denied by the Prisoner, it must be tried
Prosecutions.
by twelve men of his own rank and condition, (h) who are sworn to go
according to Truth and Evidence, and are therefore called a Jury; to
any of these the Prisoner may except for just cause, and in capital Cases
to a large number without cause: and unless this Jury declare him guilty
of the Charge, the Judges can proceed no further against him. If the
Prisoner be a peer of the land, his Trial on Indictments for Treason,
Felony,
twelve. applied
but this practice which Englishmen are happily unacquainted with, enjoying the benefit that just and reasonable Maxim, Nemo tene
true
tur accusare seipsum private; with
answer the end
other countries the Criminals are often executed always openly and public, being necessary
Justice, that public example made Offenders
Misprision either, must by other peers not fewer than other countries, Racks and Instruments Torture (i) are force from the Prisoner Confession, sometimes more than
order deter others from the like crimes; but where the Trial
and Execution are private, not only defeats the end Justice,
but affords opportunity secretly destroying which must needs expose the subject variety
(e) Cr. Car. 196, 199. Mo. Rep. 540. Latch. 174. 204.
489, 620. Rol. rep. 384. Godolph. Abridg. , 39. (g) Co. Instit. 103. (h) Fortescue Laud. Leg. Angl. cap. 28. (i) Ibid. cap. 22. This
was the practice the antient Civil Law. See the Fragments Julius Paulus, hb. Seatent. recept. “Tit. 14. quaestionibus habendis suspicione aliqua
“reus urgeatur, adhibitis tormentis sociis sceleribus suis confiteri compel ‘litur:-Reus evidentioribus arguinentis oppressus repeti quaestionem potest,
maxime, tormenta animum corpusque duraverit. ”—See also whole Title the Digests quaestionibus, lib. 49. tit. 18. See Instances those who en
was use, had no appears of.
dured these Tortures Valer. Max. lib. cap. lib. cap. But absurd and unreasonable practice was this, that even the antients, among whom
from 23. the said Title ‘de quaestionibus: Resest fragilis, periculosa, quae veritatem fallit;
“nam plerique patientia, sive duritia tormentorum tormentum contennunt, ‘ut exprimi eis veritas nullo modo possit; alii tantâ sunt impatientia, quo 'vis mentiri, quam pati tormenta, velint; sit, etiam vario modo fateantur,
“ut non tantum se, verum etiam alios comminentur. Quintilian. declam. 18. On ‘nium quidem incertorum suspiciones pessine semper corporibus incipiunt; ‘nec bene cujusquam moribus illain partem corporis interroges, quie non
animo, sed dolore respondet. ’ See more this purpose Montaigne's Essays,
Book cap. and Grotius's Letters, Let. 693. wherein approves the omis
*ion this practice England.
-
innocent men, fears and dan
(f) Co. Inst.
‘ of 2.
in‘
de in
si 2. in
to Inor
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ut
ita
3. &
all
5.
de
toitaetas3.
27to
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to
xxvi.
PREFACES TO FORMER EDITIONS
gers inconsistent with the liberties of a free people. —These are great and noble Privileges, which we may justly value ourselves upon,
and should be very unworthy we did not highly prize them.
Cases HIGH-TREAson the English subject has peculiar advantages:
This Charge general nature, and therefore more difficult make Defence (%); subjects the offender severer punishment, than other crimes; the crown more nearly concerned, reason whereof the Prisoner has more powerful adversary contend with this the
fatal engine often employed by corrupt and wicked ministers against the noblest and bravest patriots, whose laudable opposition their per
nicious schemes those ministers are very ready construe into Treason and Rebellion against the Prince thereby confounding their own and the Prince’s interest together, the one could not opposed without the other. Our ancestors therefore thought this case, wherein the Subject needed more than ordinary assistance; lest therefore too great latitude should left the arbitrary determinations Judge, who
Particularly in cases of High Treason.
the creature the crown, they took care particularize the several species Treasons express law (l): and guard against all
forced constructions and innuendos, was
vided, that Treason should proved
deed; and that innocent person might
the perjury single witness, was afterwards provided (m), that none
should convicted without two positive Witnesses.
Nor does our Law excel others only defending the Life the sub
ther order,” with such like conclusions.
scribed what shall necessary legal Commitment,
but has also illegally com
Action Indict Imprisonment,
§.
ment founded Magna Action false
provided divers Remedies (u) case any one should mitted, detained the party injured may have
Writ homine replegiando, and Writ odio atia (r).
But precious the Liberty man’s person the eye the law,
that none these Remedies was thought sufficient, not giving speedy
(k). How great latitude was taken this matter may appear from the antient Law-Books, where the lying with the nurses the king's children, the killing
man sent
pl. 40. Briton.
(l) Edw.
Pears from the Petition
they complain the Justices did adjudge several they did not own Treason. This Petition
that year. No. 171.
(r) Co. , Instit. 52.
(b) Co. Inst. 501. (u) disused; what the nature
(s) Car. Co. Inst. 55.
errand 43.
occasion this Law ap was founded, wherein Traitors, causes which
the Parliament Rolls
Stat.
cap. That this was the
(m) Edw. cap, Dent, cap.
(n) Co. Instit. (q) Co. Instit. 187. cap. Co. Inst. 616.
380. (. . . ) Cap. 29. (p) Instit. 46,
ver.
the same law farther pro some manifest plain act
the king, were adjudged Treason. Assiz. Ed.
the Commons
which entered
danger suffering thro'
And in the
provisions for ject against any injurious attacks, but also care and concern for the
the Liberty of Liberty and Freedom his person. How absolute swever the sovereigns
the Subject.
other nations may be, the king England cannot take detain
the meanest subject his mere will and pleasure (n): one privileges confirmed by Magna Charta (o), that man shall re
strained his liberty, but by the law
(p), Indictment Presentment
king's Writs out his ordinary courts
rant. Now every lawful Warrant (r) must grounded upon oath; must plainly and specially express the cause commitment (s); must be under the hand and seal one, who authorized expressing his
committeth, and must con law,” and not until fur Nor has the law only pre
office, place and authority (t), whereby clude, “until delivered by due course
the land; that says lord Coke good and lawful men, the justice (q), by lawful War
(r) This Writ now quite was, see Co. Inst, 43.
the
of
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it
& 2
2
3 11.
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3. a a
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its in to
to toa
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.
that of my lord Strafford; both which being to be found in Mr. Rushworth, are already in the hands of most gentlemen, who are suppos'd to purchase these : and the inserting them could be of no other use than to increase the bulk, and enhance the price of the Book. There is indeed another Account of my lord Strafford’s Trial, which differs in some instances from Mr. Rushworth's, and is more concise; and this it has been thought proper to insert.
And as the Union of the two kingdoms of England and Scotland is so near com pleated, and there remains little else to distinguish us at present but the municipal laws of the respective kingdoms, it has been thought advisable to add some remarkable Scots Trials: in which (to do that nation right) are discovered #. learning, elo quence, and strong reasoning. And indeed as the Civil Law prevails very much there, they have at least as large a field to exercise their parts and learning as our more Southern orators, who are so unalterably attach'd to their Common Law; and it must be admitted, that the Party accus’d has in Scotland the fair play imaginable he has what Counsel thinks fit; has Copy his Charge his own language his Counsel are permitted inspect the very Depositions against him before brought Trial; and they are
little haste dispatch State-Prisoner, that the This specimen Scots Trials, will present be we have one Senate, and one Legislature, may
Trial often lasts some months.
acceptable the curious
hereafter give birth the introducing such Methods Trial each kingdom, either shall appear founded the greatest reason and justice.
As any Partiality this Undertaking, seems almost needless disclaim it; for the Reader has the Evidence and Arguments entire, without any alteration di minution. true, falls out History, will here: the farther we search into Antiquity, and the higher we go, the less perfect will our Accounts be; the same exactness cannot expected there Trials more modern date but thus much may said for the more antient Trials, that they are the most perfect
and compleat that could possibly procur’d—We shall detain the Reader than observe, that this Collection will not only useful the Learned
longer the Law,
may fall under criminal Prosecution,
well illustrates our English History: and there Divinity Politics, but the Reader will find has been
and those whose misfortune
many instances corrects
scarce controverted point
fully debated here by the greatest men our nation has bred. And Justness Argument and true Eloquence have any attraction, and these are talents worth im proving, here will found the greatest collection fine Speeches, and Arguments,
the most important subjects, that have hitherto been exhibited the world.
but
on
a
to to
to
to
to
in as in it
be
to to in be
he ;
of
a
be
so
of
in as
it
to as
it
is be
as be
in
orto as in
in it
if ,
to
it
at
:
of is in
as in
he is ;
be
on
so
he a
to do
a
in
no
be
as
of a
:
or
It
to
it
so
of to it
of all
for English gentlemen general, well for those ticular; those who will take the pains peruse will
The Twelve Judges, before whom this Case was argued and the Council both sides unanimously agreed, that argued any Court Judicature; they declared
concern and importance, and there was such multitude
Records (above three hundred) quoted both sides, and
the Long Robe par convinced this truth, the Exchequer-Chamber,
Case like this ever was
matter the highest Cases, Precedents, and
many excellent Argu
OF THE STATE TRIALS. XXI
MR. SALMON'S PREFACE TO THE
CASE OF SHIP-MONEY, j
WHICH WAS PRINTED IN A SEPARATE VOLUME, BY WAY OF SUPPLE MENT TO THE FIRST EDITION.
THE Collection of StATE TRIALs in four Volumes in Folio, being a Work very useful and necessary, to make it more complete, it was thought fitting (at the desire of several persons of eminency and distinction in the law) to add to it the remarkable Trial of Mr. Hampden, in the Great Case of Ship-Money (between his majesty kin
Charles I. and that gentleman). For that reason therefore we caused it to be
of the same size, and on the same paper: tho' it would have been inserted in the Collection, could the Proprietors of this Copy have been prevailed upon to have
parted with their property to the Undertakers, on their terms, which were very un reasonable. It is true, there are some of the Speeches in Rushworth, (a Book very
scarce, and in few hands) but then their number is very small, and without the Re
cords and other material Process herein contained, which are carefully printed from
such authentic Manuscripts, that envy itself cannot detract from their intrinsic worth
and value: and those who would vainly endeavour to impose on mankind, That this
Trial is in Rushworth, not only discover their ignorance, but shew themselves guilty of most scandalous and invidious reflections.
We shall therefore say nothing of the excellency of this Work, which is so useful
ments made, the greatest Learning, that the whole would seem almost incredible,
but those who will read them with attention.
How this Great Case went well known every one who has the least acquaint
ance with History; the Times were then troublesome, and some people took hence occasion blow the coals dissension, which last broke out into that dreadful conflagration, ended the destruction Unfortunate Monarch, and compleated the ruin the best Constitution the world. All the Judges (long before this Case was argued the Exchequer-Chamber) gave their opinions writing under their hands for the King but whether, this Affair, those sages the law acted like Faithful Counsellors, must left the learned that profession determine. Every man will think inclined; however, most certainly,
the greatest concernment and importance, for Prince have about him Faithful Counsellors; for after all, them never wise, good, and just, undoubted
truth, that Princes see with others eyes, and hear with others ears.
let
in
as up
is
in
so
a
to in
a
it is
of
an
of
in as
be
;
of is be
he
to
as
in to
of an
it
to
it,as to noin be
in
it in is
in
ofto in
of
of
of to
on
at
so ofbe a
of
to
all
on
all
in
xxii PREFACES TO FORMER EDITIONS
MR. EMLYN's PREFACE
To THE secon D EDITION of THE STATE TRIALs, IN SIx vo LUMEs Folio : PRINTED IN THE YEAR 1730.
THE favourable reception which the First Impression of this Work has
met with from the Public, is a sufficient recommendation of it in general;
The usefulness Collections are chiefly intended for the preservation separate Pieces,
of the work to which by being scattered up and down, are often length time either
History,
The Professors and Students the Law will not the only persons,
xlnd AElo quence.
thority the respective Courts, pens otherwise, the Reader of the Trial.
Such here
but perhaps it may not be unacceptable to the Reader to point out some particular Advantages
ofthe Uses and oof
the Study of quite lost, hard come at: this, indeed, care not worth be
the Law,
use; but the Pieces here pre them must appear first
stowing those which are little
serv'd are evidently such, Collection
sight very beneficial all studious
especially into that principal branch them, which concerns the Life and Liberty the Subject: for since the Laws England are
i. measure grounded upon immemorial Customs and Usages, the Precedents
and Examples former times must singularly useful, not absolutely
necessary right understanding
very much depend upon Statute Law, either the Crimes themselves,
known, but the Usage former cases: and even those instances, which fall under the direction the Statute Law, the best Expositor of those Statutes the constant received Practice, ever since they were made, optima legum interpres consuetudo. (a)
the Punishments them, being for the most part declar'd act par liament: yet the Method Practice the Trials those Crimes
the main govern'd Common Law rules, and consequently not be
who may receive benefit from this Work: here will matter also In
struction and Entertainment who are delighted with History, in quisitive after the transactions the former present times; many parts
History will here illustrated and set true light; the Reader
may here see, were, with his own eyes, not needing representations others, which are often full partiality according the party and disposition the Historians.
trust the prejudice,
But the nature this Work admits not such turns and disguises, other general ac counts are but too justly chargeable with; the following Trials being plain Narrations Sayings and Facts, for the most part published Au
indifferent Hands; where hap informed the Title the Head
Style, luxuriancy Fancy, may eloquent Speeches and learned Ar subjects; tho' must own'd, inter not altogether deserve that character.
And since Scotland now become part this Kingdom, has been thought proper insert some the Proceedings that country, which
(to that Nation right) are discovered great learning and eloquence: *_
are taken with fluency entertain'd with variety many very important
guments
mixed with some others, which
(a) Co. Instit. 75.
into the Laws this
them. —And tho’ Criminal Cases
nation,
do
on
be
to
as beof
4 of
do
ofto all
aof
to
is
by a
of as is of
in
in
a in
in
it by
toisof
in or
at
of or it
inor of ofa of
it
at
in a
be
of
of
of
is or by
of be of or
ofof do
of on to toor
ofit of be by
to be
to
a of inof as
of of
a of in no
it. itof is
as bebe or to
in of
if
by of of
of
to orof
OF THE STATE TRIALS.
and it must be admitted, that very considerable advantages are there al lowed to the Prisoner, which we in England do not enjoy; he has what
Counsel he thinks fit, and a Copy of the Charge in his own language; his Counsel are permitted to inspect the Depositions against him before he is
brought to his Trial; and they are so little in haste to dispatch a State Prisoner, that the Trial often lasts some months.
Names of such as behav'd impartially on the Bench, without prejudicing ter of the the rightful Prerogatives of the Crown on the one hand, or betraying the Judges. legal Privileges of the Subject on the other; without bearing hard upon
the Innocent, or shewing any unallowable favour to the Guilty, will by this means be remember'd with honour, and left upon record to their last ing praise and commendation.
But it has not always been the good fortune of England to have the Bench adorn'd with such excellent persons; the Reader will in the course of these Trials light upon certain periods, wherein the Judges, who ought by the duty of their place to be the great Barrier, and to act im partially between Prince and People, have notwithstanding deliver'd
Opinions in direct contradiction to the known fundamental Laws of the nation, and as far as in them lay, sacrificed the Constitution and Liberties of the kingdom to the pride and ambition of an arbitrary monarch. This generally ended in the downfall of such Judges, and the Ministers, whose tools they were; the Politics of those times not being arrived at that height, to know how to influence the representative Body of the Nation: for what need could Ministers have to corrupt the Interpreters of the Law, if the Makers of it were intirely at their devotion ?
Others there have been, (as the Reader will have too frequent occasion to remark) who regardless of Right and Wrong, and the solemn Oaths they had sworn, have under colour Law, but yet open defiance natural Justice, made scruple murder the Innocent, and by foul un warrantable practices acquit the Guilty, just they received their di
rections from, thought would best pleasing those above them such monstrous pitch bare-faced iniquity were they arrived, that they stuck not determine the same Point different ways different times, making the Law mere nose wax, but usually turning the
destruction the person tried before them (b). These Volumes will im partially transmit their memory posterity, with that reproach and in
famy, deservedly attendant upon Traitors and Murderers; and this not general characters, which are scarce rely’d on, being oft accord
Another Use of this Work, will be the doing justice to those Judges To form a and Counsel, who respectively presided or practis'd at these Trials : the right charac
ing o Writer, by Facts;
the inclinations the but real their Behaviour
was, own true colours: by which the names, will easily distinguish the calm and
who, without any regard the decency his character, uses his autho rity other end, than silence Reason and Truth, and blustering and clamour worry the Innocent death.
The like Distinction will readily occur with respect those, whose And Counset. Office was the Bar. Some will find, pressing nothing illegal against
the Prisoner, nothing hard and unreasonable (however strictness legal) using artifices deprive him his just Defence, treating his Witnesses with decency and candour; being not intent upon convicting the Pri soner, upon discovering Truth, and bringing real Offenders Justice; looking upon themselves, according that famous Saying queen Eli zabeth, not much retained pro Domina Regina, pro Domina Veritate (c. ).
(b) Sir John Hawles's Remarks the Trial Charles Bateman. (c) Co. Instit, 79.
will here appear just Reader, without the sedate Judge, willing
right Information,
determine according Truth and Justice, from the hectoring bully,
hear and receive
and desirous
xxiii
3
so
to asnono so
a of
of
.
of
by
at it
as
as
to
at
to
to
or
to to
it
it
to
by to
to
he
on of intobeto
to as of
to no
a
to of of
to to its of of
to
so
of
to be
in
to
to
in all
to
:
of
xxiv.
PREFACES TO FORMER EDITIONS
These will appear in a different light from others, who with rude and boisterous language abuse and revile the unfortunate Prisoner; who stick
, not to take advantages him, however hard and unjust, which either his ignorance, the strict rigour Law may give them; who force
stratagem endeavour disable him from making his Defence; who
they appear,
row-beat his Witnesses soon tho’ ever
bo
duty their place
the perusal this Work, such persons will too often arise view; and
could wish for the credit the Law, that that great Oracle the
Lord Chief Justice Coke, (d) had given less reason numbered among this sort.
The Gentlemen that Profession, whether imploy'd criminal Pro secutions civil Actions, are not blame for doing their best sifting out the Truth, and making just Observations favour their Clients; yet after having done they should last find the merits the Cause
declare the whole truth; and
they can put them out delivering their Evidence:
nance, and confound them
who are brought Trial, right
guilty; pensation from the obligations
they, others, above
not
and
convict
Truth and Justice.
these should below men honour, not say men conscience: yet
would disparagement them the prejudice Truth and Justice:
for how just and reasonable soever
cause while nothing appears but that may right, yet when the
course the Evidence proves manifestly otherwise, then high time
desert it; for they must needs think, that Fees Retainers will be just Excuse, either this world another, for being wilfully instru
mental province
belongs
the one Pleader,
the Witnesses, the Guilt will and ought further Advantage this Collection
the other side, am sure desist from attempting any thing
may undertake the defence
willing counte
were the wrong,
peculiar
had dis
Such methods
To shew the ercellency of the English laws.
(Civil Suits.
his door.
that will afford frequent
Ecclesiastical Courts. )
good earnest believe, we have this respect any great matter boast of.
Nor can suppose they are our Ecclesiastical Courts, which make the envy our neighbours: the petty but chargeable Suits, which are
(d) See the Trial Sir Walter Raleigh, 1603,
promoting injustice and wrong: and tho' part
determine either the Law the Fact, the former the Court, and the latter generally the Jury yet
the other misled the artful turns and insinuations any material truth suppress'd
opportunities the careful Reader observing the excellency our Laws, and the advantage Englishman thereby enjoys above his neigh
bours. When meet with Author extolling our laws above those other countries, and representing upon that, well other accounts,
the envy around us, presume meant chiefly with regard
Criminal Procedures for Civil Suits, when consider the tedi
ousness and delays such Suits, necessarily arising from our Methods
and Forms Law; the various Offices, and sometimes Courts, they must pass thro’, before they are finally decided; the exorbitant Fees Counsel, whereto the Costs recovered bear proportion; the duties arising the crown from many incidents every cause; and above all the nicety special Pleadings, whereby the justest cause the world, after having with great trouble and expense been conducted almost period, may thro’ the mistake letter (often occasioned by At torney's Clerk) irretrievably lost,
io things, say, are considered, hard
least turned round begin costs him, who has all the while
again, and that not without payment
property:
imagine, that any one can
been the unjust invader and
another's
when these
their which either the misunderstood by his baffling
of
it
of all do
A. D. ,
I
lie no to no
it of to to
I ofI
to
orto in of on or to
orof
of in a
by
at
in
is is,to or be be
to
an
it,
to
of
or
in
to
a as if
to
ustoin a to of
ifof
of of of in
it so as to
toas
Aof
a to a to lieif
Iin
or
of of I to all
ofbe
of to
all
be of be :
init I
asI an to
an of
so, all
as
of of if in
asto of allasof
is
toor it itat
ofof to
us
it
or itto to
as
; be is no
of in
of or
all noasattobein to
itorit
be of
ofto
of
to in of or of by
or
OF THE STATE TRIAL3. XXV
there often instituted to the no small damage of both sides, only to in dulge the private passions of those who institute them ; the constant practice of denouncing Excommunication for the minutest contempts (e), (a punishment originally designed only for such flagrant vices, as render'd a man unfit for Christian communion, which formerly was greatly dreaded, but is now by these means slighted and despised ;) and the pe cuniary commutations avowedly permitted for Penances (f), are things, which will not allow me to make any such supposal.
The excellency therefore of our Laws above others, I take chiefly to As Criminat
consist in that part of them, which regards Criminal Prosecutions: here indeed it may with great truth and justice be said, That we have
by far the better of our neighbours, and are deservedly their admiration and envy.
This might be made to appear in many particulars. In other Coun tries the Courts of Justice are held in secret; with us publickly (g) and in open view: there the Witnesses are examined in private, and in the Prisoner's absence; with us they are produced face to face, and deliver their Evidence in open court, the Prisoner himself being present, and at liberty to cross-examine them : there the Judges determine both Law and Fact; with us, if the Fact be denied by the Prisoner, it must be tried
Prosecutions.
by twelve men of his own rank and condition, (h) who are sworn to go
according to Truth and Evidence, and are therefore called a Jury; to
any of these the Prisoner may except for just cause, and in capital Cases
to a large number without cause: and unless this Jury declare him guilty
of the Charge, the Judges can proceed no further against him. If the
Prisoner be a peer of the land, his Trial on Indictments for Treason,
Felony,
twelve. applied
but this practice which Englishmen are happily unacquainted with, enjoying the benefit that just and reasonable Maxim, Nemo tene
true
tur accusare seipsum private; with
answer the end
other countries the Criminals are often executed always openly and public, being necessary
Justice, that public example made Offenders
Misprision either, must by other peers not fewer than other countries, Racks and Instruments Torture (i) are force from the Prisoner Confession, sometimes more than
order deter others from the like crimes; but where the Trial
and Execution are private, not only defeats the end Justice,
but affords opportunity secretly destroying which must needs expose the subject variety
(e) Cr. Car. 196, 199. Mo. Rep. 540. Latch. 174. 204.
489, 620. Rol. rep. 384. Godolph. Abridg. , 39. (g) Co. Instit. 103. (h) Fortescue Laud. Leg. Angl. cap. 28. (i) Ibid. cap. 22. This
was the practice the antient Civil Law. See the Fragments Julius Paulus, hb. Seatent. recept. “Tit. 14. quaestionibus habendis suspicione aliqua
“reus urgeatur, adhibitis tormentis sociis sceleribus suis confiteri compel ‘litur:-Reus evidentioribus arguinentis oppressus repeti quaestionem potest,
maxime, tormenta animum corpusque duraverit. ”—See also whole Title the Digests quaestionibus, lib. 49. tit. 18. See Instances those who en
was use, had no appears of.
dured these Tortures Valer. Max. lib. cap. lib. cap. But absurd and unreasonable practice was this, that even the antients, among whom
from 23. the said Title ‘de quaestionibus: Resest fragilis, periculosa, quae veritatem fallit;
“nam plerique patientia, sive duritia tormentorum tormentum contennunt, ‘ut exprimi eis veritas nullo modo possit; alii tantâ sunt impatientia, quo 'vis mentiri, quam pati tormenta, velint; sit, etiam vario modo fateantur,
“ut non tantum se, verum etiam alios comminentur. Quintilian. declam. 18. On ‘nium quidem incertorum suspiciones pessine semper corporibus incipiunt; ‘nec bene cujusquam moribus illain partem corporis interroges, quie non
animo, sed dolore respondet. ’ See more this purpose Montaigne's Essays,
Book cap. and Grotius's Letters, Let. 693. wherein approves the omis
*ion this practice England.
-
innocent men, fears and dan
(f) Co. Inst.
‘ of 2.
in‘
de in
si 2. in
to Inor
d
he in
ut
ita
3. &
all
5.
de
toitaetas3.
27to
be
a
et
beit
of in
4.
a ofof 2 of
ut
it
in ;
of it,
dede
a
in a
in
of
5.
inin is to
l. in; of 1. 8, Si2
§ of of
of
so
to
ofde an
of us
is :a
ofit a
et &p. a in
in
of
to
xxvi.
PREFACES TO FORMER EDITIONS
gers inconsistent with the liberties of a free people. —These are great and noble Privileges, which we may justly value ourselves upon,
and should be very unworthy we did not highly prize them.
Cases HIGH-TREAson the English subject has peculiar advantages:
This Charge general nature, and therefore more difficult make Defence (%); subjects the offender severer punishment, than other crimes; the crown more nearly concerned, reason whereof the Prisoner has more powerful adversary contend with this the
fatal engine often employed by corrupt and wicked ministers against the noblest and bravest patriots, whose laudable opposition their per
nicious schemes those ministers are very ready construe into Treason and Rebellion against the Prince thereby confounding their own and the Prince’s interest together, the one could not opposed without the other. Our ancestors therefore thought this case, wherein the Subject needed more than ordinary assistance; lest therefore too great latitude should left the arbitrary determinations Judge, who
Particularly in cases of High Treason.
the creature the crown, they took care particularize the several species Treasons express law (l): and guard against all
forced constructions and innuendos, was
vided, that Treason should proved
deed; and that innocent person might
the perjury single witness, was afterwards provided (m), that none
should convicted without two positive Witnesses.
Nor does our Law excel others only defending the Life the sub
ther order,” with such like conclusions.
scribed what shall necessary legal Commitment,
but has also illegally com
Action Indict Imprisonment,
§.
ment founded Magna Action false
provided divers Remedies (u) case any one should mitted, detained the party injured may have
Writ homine replegiando, and Writ odio atia (r).
But precious the Liberty man’s person the eye the law,
that none these Remedies was thought sufficient, not giving speedy
(k). How great latitude was taken this matter may appear from the antient Law-Books, where the lying with the nurses the king's children, the killing
man sent
pl. 40. Briton.
(l) Edw.
Pears from the Petition
they complain the Justices did adjudge several they did not own Treason. This Petition
that year. No. 171.
(r) Co. , Instit. 52.
(b) Co. Inst. 501. (u) disused; what the nature
(s) Car. Co. Inst. 55.
errand 43.
occasion this Law ap was founded, wherein Traitors, causes which
the Parliament Rolls
Stat.
cap. That this was the
(m) Edw. cap, Dent, cap.
(n) Co. Instit. (q) Co. Instit. 187. cap. Co. Inst. 616.
380. (. . . ) Cap. 29. (p) Instit. 46,
ver.
the same law farther pro some manifest plain act
the king, were adjudged Treason. Assiz. Ed.
the Commons
which entered
danger suffering thro'
And in the
provisions for ject against any injurious attacks, but also care and concern for the
the Liberty of Liberty and Freedom his person. How absolute swever the sovereigns
the Subject.
other nations may be, the king England cannot take detain
the meanest subject his mere will and pleasure (n): one privileges confirmed by Magna Charta (o), that man shall re
strained his liberty, but by the law
(p), Indictment Presentment
king's Writs out his ordinary courts
rant. Now every lawful Warrant (r) must grounded upon oath; must plainly and specially express the cause commitment (s); must be under the hand and seal one, who authorized expressing his
committeth, and must con law,” and not until fur Nor has the law only pre
office, place and authority (t), whereby clude, “until delivered by due course
the land; that says lord Coke good and lawful men, the justice (q), by lawful War
(r) This Writ now quite was, see Co. Inst, 43.
the
of
a
in a an a is of of
it
& 2
2
3 11.
. . .
)
/> good earnest believe, we have this respect any great matter boast of.
Nor can suppose they are our Ecclesiastical Courts, which make the envy our neighbours: the petty but chargeable Suits, which are
(d) See the Trial Sir Walter Raleigh, 1603,
promoting injustice and wrong: and tho' part
determine either the Law the Fact, the former the Court, and the latter generally the Jury yet
the other misled the artful turns and insinuations any material truth suppress'd
opportunities the careful Reader observing the excellency our Laws, and the advantage Englishman thereby enjoys above his neigh
bours. When meet with Author extolling our laws above those other countries, and representing upon that, well other accounts,
the envy around us, presume meant chiefly with regard
Criminal Procedures for Civil Suits, when consider the tedi
ousness and delays such Suits, necessarily arising from our Methods
and Forms Law; the various Offices, and sometimes Courts, they must pass thro’, before they are finally decided; the exorbitant Fees Counsel, whereto the Costs recovered bear proportion; the duties arising the crown from many incidents every cause; and above all the nicety special Pleadings, whereby the justest cause the world, after having with great trouble and expense been conducted almost period, may thro’ the mistake letter (often occasioned by At torney's Clerk) irretrievably lost,
io things, say, are considered, hard
least turned round begin costs him, who has all the while
again, and that not without payment
property:
imagine, that any one can
been the unjust invader and
another's
when these
their which either the misunderstood by his baffling
of
it
of all do
A. D. ,
I
lie no to no
it of to to
I ofI
to
orto in of on or to
orof
of in a
by
at
in
is is,to or be be
to
an
it,
to
of
or
in
to
a as if
to
ustoin a to of
ifof
of of of in
it so as to
toas
Aof
a to a to lieif
Iin
or
of of I to all
ofbe
of to
all
be of be :
init I
asI an to
an of
so, all
as
of of if in
asto of allasof
is
toor it itat
ofof to
us
it
or itto to
as
; be is no
of in
of or
all noasattobein to
itorit
be of
ofto
of
to in of or of by
or
OF THE STATE TRIAL3. XXV
there often instituted to the no small damage of both sides, only to in dulge the private passions of those who institute them ; the constant practice of denouncing Excommunication for the minutest contempts (e), (a punishment originally designed only for such flagrant vices, as render'd a man unfit for Christian communion, which formerly was greatly dreaded, but is now by these means slighted and despised ;) and the pe cuniary commutations avowedly permitted for Penances (f), are things, which will not allow me to make any such supposal.
The excellency therefore of our Laws above others, I take chiefly to As Criminat
consist in that part of them, which regards Criminal Prosecutions: here indeed it may with great truth and justice be said, That we have
by far the better of our neighbours, and are deservedly their admiration and envy.
This might be made to appear in many particulars. In other Coun tries the Courts of Justice are held in secret; with us publickly (g) and in open view: there the Witnesses are examined in private, and in the Prisoner's absence; with us they are produced face to face, and deliver their Evidence in open court, the Prisoner himself being present, and at liberty to cross-examine them : there the Judges determine both Law and Fact; with us, if the Fact be denied by the Prisoner, it must be tried
Prosecutions.
by twelve men of his own rank and condition, (h) who are sworn to go
according to Truth and Evidence, and are therefore called a Jury; to
any of these the Prisoner may except for just cause, and in capital Cases
to a large number without cause: and unless this Jury declare him guilty
of the Charge, the Judges can proceed no further against him. If the
Prisoner be a peer of the land, his Trial on Indictments for Treason,
Felony,
twelve. applied
but this practice which Englishmen are happily unacquainted with, enjoying the benefit that just and reasonable Maxim, Nemo tene
true
tur accusare seipsum private; with
answer the end
other countries the Criminals are often executed always openly and public, being necessary
Justice, that public example made Offenders
Misprision either, must by other peers not fewer than other countries, Racks and Instruments Torture (i) are force from the Prisoner Confession, sometimes more than
order deter others from the like crimes; but where the Trial
and Execution are private, not only defeats the end Justice,
but affords opportunity secretly destroying which must needs expose the subject variety
(e) Cr. Car. 196, 199. Mo. Rep. 540. Latch. 174. 204.
489, 620. Rol. rep. 384. Godolph. Abridg. , 39. (g) Co. Instit. 103. (h) Fortescue Laud. Leg. Angl. cap. 28. (i) Ibid. cap. 22. This
was the practice the antient Civil Law. See the Fragments Julius Paulus, hb. Seatent. recept. “Tit. 14. quaestionibus habendis suspicione aliqua
“reus urgeatur, adhibitis tormentis sociis sceleribus suis confiteri compel ‘litur:-Reus evidentioribus arguinentis oppressus repeti quaestionem potest,
maxime, tormenta animum corpusque duraverit. ”—See also whole Title the Digests quaestionibus, lib. 49. tit. 18. See Instances those who en
was use, had no appears of.
dured these Tortures Valer. Max. lib. cap. lib. cap. But absurd and unreasonable practice was this, that even the antients, among whom
from 23. the said Title ‘de quaestionibus: Resest fragilis, periculosa, quae veritatem fallit;
“nam plerique patientia, sive duritia tormentorum tormentum contennunt, ‘ut exprimi eis veritas nullo modo possit; alii tantâ sunt impatientia, quo 'vis mentiri, quam pati tormenta, velint; sit, etiam vario modo fateantur,
“ut non tantum se, verum etiam alios comminentur. Quintilian. declam. 18. On ‘nium quidem incertorum suspiciones pessine semper corporibus incipiunt; ‘nec bene cujusquam moribus illain partem corporis interroges, quie non
animo, sed dolore respondet. ’ See more this purpose Montaigne's Essays,
Book cap. and Grotius's Letters, Let. 693. wherein approves the omis
*ion this practice England.
-
innocent men, fears and dan
(f) Co. Inst.
‘ of 2.
in‘
de in
si 2. in
to Inor
d
he in
ut
ita
3. &
all
5.
de
toitaetas3.
27to
be
a
et
beit
of in
4.
a ofof 2 of
ut
it
in ;
of it,
dede
a
in a
in
of
5.
inin is to
l. in; of 1. 8, Si2
§ of of
of
so
to
ofde an
of us
is :a
ofit a
et &p. a in
in
of
to
xxvi.
PREFACES TO FORMER EDITIONS
gers inconsistent with the liberties of a free people. —These are great and noble Privileges, which we may justly value ourselves upon,
and should be very unworthy we did not highly prize them.
Cases HIGH-TREAson the English subject has peculiar advantages:
This Charge general nature, and therefore more difficult make Defence (%); subjects the offender severer punishment, than other crimes; the crown more nearly concerned, reason whereof the Prisoner has more powerful adversary contend with this the
fatal engine often employed by corrupt and wicked ministers against the noblest and bravest patriots, whose laudable opposition their per
nicious schemes those ministers are very ready construe into Treason and Rebellion against the Prince thereby confounding their own and the Prince’s interest together, the one could not opposed without the other. Our ancestors therefore thought this case, wherein the Subject needed more than ordinary assistance; lest therefore too great latitude should left the arbitrary determinations Judge, who
Particularly in cases of High Treason.
the creature the crown, they took care particularize the several species Treasons express law (l): and guard against all
forced constructions and innuendos, was
vided, that Treason should proved
deed; and that innocent person might
the perjury single witness, was afterwards provided (m), that none
should convicted without two positive Witnesses.
Nor does our Law excel others only defending the Life the sub
ther order,” with such like conclusions.
scribed what shall necessary legal Commitment,
but has also illegally com
Action Indict Imprisonment,
§.
ment founded Magna Action false
provided divers Remedies (u) case any one should mitted, detained the party injured may have
Writ homine replegiando, and Writ odio atia (r).
But precious the Liberty man’s person the eye the law,
that none these Remedies was thought sufficient, not giving speedy
(k). How great latitude was taken this matter may appear from the antient Law-Books, where the lying with the nurses the king's children, the killing
man sent
pl. 40. Briton.
(l) Edw.
Pears from the Petition
they complain the Justices did adjudge several they did not own Treason. This Petition
that year. No. 171.
(r) Co. , Instit. 52.
(b) Co. Inst. 501. (u) disused; what the nature
(s) Car. Co. Inst. 55.
errand 43.
occasion this Law ap was founded, wherein Traitors, causes which
the Parliament Rolls
Stat.
cap. That this was the
(m) Edw. cap, Dent, cap.
(n) Co. Instit. (q) Co. Instit. 187. cap. Co. Inst. 616.
380. (. . . ) Cap. 29. (p) Instit. 46,
ver.
the same law farther pro some manifest plain act
the king, were adjudged Treason. Assiz. Ed.
the Commons
which entered
danger suffering thro'
And in the
provisions for ject against any injurious attacks, but also care and concern for the
the Liberty of Liberty and Freedom his person. How absolute swever the sovereigns
the Subject.
other nations may be, the king England cannot take detain
the meanest subject his mere will and pleasure (n): one privileges confirmed by Magna Charta (o), that man shall re
strained his liberty, but by the law
(p), Indictment Presentment
king's Writs out his ordinary courts
rant. Now every lawful Warrant (r) must grounded upon oath; must plainly and specially express the cause commitment (s); must be under the hand and seal one, who authorized expressing his
committeth, and must con law,” and not until fur Nor has the law only pre
office, place and authority (t), whereby clude, “until delivered by due course
the land; that says lord Coke good and lawful men, the justice (q), by lawful War
(r) This Writ now quite was, see Co. Inst, 43.
the
of
a
in a an a is of of
it
& 2
2
3 11.
. . . 5
35 so de by
be
of
&onofor of of
aa
6 an or
to 3. p. a he
of all of a
so to of
8 on of de 10. is
he of of be
ofof in in
on be of is ;be
no be
a of ita
6. be
it of an is
of5. by 2.
or at
of
by to
a in ofto
as
if; if
1. 50. to et
beof to
1. §2
inan do no be or
to be
5.
1
it, is,
of by of a
15. in it
to
a
2forof it : is2or“isup to
22 sooforit or orof by beof
to is
3. a a
oris
of
is In a
it be
of,
bebyby
its in to
to toa
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.
