crimination, which a more liberal admission of proof would render indispensable: it cannot be denied, that the policy of the State might devise some institution which in this respect would be more competent for the eliciting of truth. Still a prudent legislator would pause before he ventured, in any case, upon removing the decision of causes out of the hands of the people. It is a peculiar feature in the English Constitution, that what in other States is the work of Government, amongst us is done by the nation. It would be impolitic to make any infraction upon this principle, which should operate to take away from the mass of the people the performance of those duties, the discharging of which, independent of its primary object, the investigation of facts, is found productive of inestimable consequences both moral and political. In prosecutions instituted by the Government of the Country, the trial by Jury will always be upheld on account of the protection it affords to individuals, in an unequal contest with the authority of the State: In the most perilous and arbitrary times, it has proved a safeguard to the subject: The verdict of the Jury which acquitted Lilburne, is said, by Clarendon, to have occasioned more regret to Cromwell than the loss of a battle: The acquittal of the Seven Bishops animated the dispositions of the nation to a successful effort for shaking off the yoke of the Stuarts. The nature of that security, which at such times the trial by Jury is peculiarly calculated to give to the subject, is luminously explained by Prynne in his Protest for Sir J. Maynard. Sir E. Coke in several parts of his Institutes, takes occasion to admonish his readers against all infringements on the "ordinary and precious trial per legem terræ "from the example of the proceedings of Empson and Dudley: These "bold men, and regardless of fame" were conspicuous for their attempt to introduce absolute and partial trials by discretion: they paid, however, the penalty of their guilt by an ignominious death; and they have been consigned to perpetual obloquy, by the immortal historian of the times.

CHAP. XXXI.

BUT, my good Chancellor, though the method whereby the Laws of England sift out the truth, in matters which are at issue, highly pleases me; yet there rests one doubt with me, whether it be not repugnant to Scripture: Our blessed Saviour says to the Pharisees (St. John viii. 17.) "It is written in your law that the testimony of two men is true." And, in confirmation, he subjoins in the very next verse, "I am one that bear witness of myself, and the Father that sent me beareth witness of me." The Pharisees were Jews; wherefore it is the same thing to say, "It is written in your law," as to say, "It is written in the Law of Moses," which was no other than the Law of God, given by Moses to the children of Israel; wherefore to contradict this Law of Moses, is, in effect, the same as to contradict the Law of GOD; from whence it follows, that the Law of England deviates from this Law of GOD, which it does not seem lawful in any wise to impugn. It is written also (Matt. xviii. 16.) that our Saviour, speaking of offences, and forgiving one another, amongst other things, delivers himself thus, "If thy brother will not hear thee, then take with thee one or two more, that, in the mouth of two or three witnesses, every word may be established." Now, if in the mouth of two or three witnesses, GoD will establish every word; why do we look for the truth in dubious cases, from the evidence of more than two or three witnesses. No one can lay better or other foundation, than our

Lord hath laid. This is what, in some measure, makes me hesitate concerning the proceedings according to the Laws of England, in matters of proof, wherefore, I desire your answer to this objection.

a Sir M. Hale, in his Tract on the amendment of the law, considers the applicability of the Mosaic Dispensation to the existing circumstances of the world: his work contains many sensible observations upon the subject discussed in the present chapter. The Puritans went the length of insisting, that the judicial laws of Moses, for the punishment of offences, ought to be observed: The necessity believed to be imposed by the Law of God, for proving an offence by two witnesses, has frequently been the subject of argument, in judicial proceedings. (Cases of Vaughan, Sir J. Fenwick, Bishop Atterbury, St. Tr. Reniger v. Fogossa, Plowden's Comm. 8, Shotter v. Friend Corthen 142; and see 3 Inst. 26; also, Mosaicarum et Romanarum legum vetus collatio, cum notis Pithæi.)

CHAP. XXXII:

Chancellor. THE Laws of England, Sir! do not contradict these passages of Scripture for which you seem to be so concerned; though they pursue a method somewhat different in coming at, and discovering the truth how does that law of a general council prejudice or comdemn the testimony of two witnesses, whereby it is provided, that the Cardinals shall not be convicted of any crime, unless upon the deposition of twelve witnesses? If the testimony of two be true, à fortiori, the testimony of twelve ought rather to be presumed to be so. The rule of law says, "the more always contains in it that which is less." So, the repayment of whatsoever the host spent more than the two-pence, towards the taking care of the man who fell amongst thieves, was promised to be paid punctually to him by the good Samaritan, when he came again. Shall not an impeached person, who endeavours to prove himself to have been in another place at the time of the fact alleged and committed, be obliged to produce more than two or three witnesses, when the prosecutor has proved, or is ready to prove the charge by as many. So that person who takes upon him to convict any number of witnesses of perjury, must of necessity produce a greater number of witnesses against them; so that the testimony of only two or three witnesses shall not, in all cases, be presumed to be true. But, the meaning of the law is this, that a less number than two witnesses shall

H

not be admitted as sufficient to decide the truth in doubtful cases. And this appears from Bernard, (Extra. de testi. ca. licet in glossa ordinaria) where he puts many cases, in which, by the laws, more than three witnesses are required; in some cases, five, in others, seven. And, that the truth in some cases may be proved by two witnesses only, when there is no other way of discovering it, is what the laws of England likewise affirm. As, where facts are committed upon the high sea, without the body of any County, which may be afterwards brought to trial before the Admiralty-Court; facts of this kind, by the Constitution of England, are to be proved by witnesses, without a Jury. In like manner are proceedings before the Lord Constable, and Earl Marshal, upon a fact committed in another kingdom,

a The first case in our law, extant, relating to the marine jurisdiction, is in the time of Edward I: but the judicial power of the Admiral does not appear to have excited the attention of the Legislature, until the reign of Richard II, when his authority was defined. The Common Lawyers formerly regarded the proceedings in the Court of Admiralty with a jealous eye: In the reign of James, formal articles of complaint were presented against the Judges, for the purpose of restraining them in their practice of granting prohibitions: to these the Judges replied in writing, justifying the grounds upon which they proceeded in the course of the discussion the authority of Fortescue in the text, is appealed to: the part of the Institutes in which the argument concerning the Admiralty is related, has been animadverted on by Prynne, in a manner exhibiting the extraordinary stores of his erudition. (Prynne's Animadver sions, p. 75. 4 Inst. c. 22, Articuli Admiralitatis.) In the reign of Charles II, the jurisdiction of the Court of Admiralty again became the subject of contention, and there is preserved an able argument delivered by Sir L. Jenkins before the Lords on that occasion. (Wynne's Life of Sir L. Jenkins, p. 76.) Some interesting particulars respecting this Court, will be found in the following authorities. (Spelman's Treatise on the Jurisdiction of the Admiralty, Selden's Mare Clausum, Cases of the Admiralty, 12 Rep. Harl. Misc. Vol. VIII. p. 371. Luder's Tract on the Laws of Orleron. Zouch's Admiralty Jurisdiction. Nicholson's Historical Library, Part III. 4 Inst. 124. where the Admiral is called by Coke, the English Neptune. Reeves's History of the Law, Rich. II. Selden's Notes to Fortescue.)