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intrusts such inquisitions in the hands of persons of understanding and integrity, indifferent and impartial, that might suffer no man to be falsely accused or defamed, nor the lives of any to be put in jeopardy by the malicious conspiracies of great or small, or the perjuries of any profligate wretches." (Lord Somers on Grand Juries. Security of Englishmen's Lives, Tracts, tem. Car. II. Dryden's Medal, with the Notes of Sir W. Scott. Sir J. Hawles's Remarks on Lord Shaftesbury's Grand Jury. North's Examen, and the Tracts of the time respecting "Ignoramus.")With respect to the evidence adduced on the part of the prisoner in his defence; Mary was the first English Sovereign who recommended to her Judges to allow, as a favor, of witnesses being brought against the Crown; but they did not always adopt this course of proceeding. (4 Bl. Comm. p. 359. Sir N. Throgmorton's Case, Hargr. St. Tr.) It was not until the Statute of William, which is applicable to cases of treason only, that the attendance of witnesses for the prisoner was compulsory; nor until the Statute of Anne, that they were examined upon oath in treason and felony. (3 Inst. 79; and see Observations upon the Ancient Rule, and its effect in the Case of Fitzharris, Sir J. Hawles's Remarks on Colledge's Case.) The Act of William first enabled Counsel to conduct the prisoner's full defence in trials for treason, in which he was not entitled to any assistance even for the examination of witnesses: the like privilege was not conferred in cases of impeachment until the 20th George II. The difficulties with which a prisoner had to contend in State prosecutions before the Revolution, are thus detailed by Sir J. Hawles. "A man is by a messenger, without any indictment precedent, which by the Common Law ought to precede, or any accuser or accusation that he knows of, clapt up in close prison, and neither friend or relation must come to him; he must have neither pen, ink or paper, or know of what or by whom he is accused; he must divine all, and provide himself a counter-evidence without knowing what the evidence is against him. If any person advise or solicit for him, unless assigned by the Court before which he is tried, they are punishable: he is tried as soon as he comes into the Court, and therefore of a Solicitor there is no occasion or use: if the prisoner desires Counsel upon a point of law, as was done in my Lord Russel's trial, the Counsel named must be ready to argue presently, and the Court deliver their judgment presently without any consideration. The prisoner, indeed, hath liberty to except to twenty-five of the Jury peremptorily, and as many more as he hath cause to except to, but he must not know beforehand who the Jury are; but the King's Counsel must have a copy of them: he must hear all the witnesses produced to prove him guilty together, without answering each as he comes, for that is breaking in upon the King's Evidence,

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as it is called, though it hold many hours, as it happened in most of the trials: he must not have any person to mind what hath been sworn against him, and forgotten by him to answer: there is a proclamation to call in all persons to swear against him, none for him; as many Counsel as can be hired are allowed to be against him, none for him. Let any person consider truly these circumstances, and it is a wonder how any prisoner escapes." The foregoing is far from being a complete enumeration of the severities to which prisoners were formerly subjected on their trials. The trial of Colledge which gave rise to these remarks of Sir J. Hawles, and other cases in the collection of the State Trials, exhibit many more diversified forms of oppression. Neither were all these rigorous modes of procedure, against which Sir J. Hawles inveighs, abandoned immediately after the Revolution; for we find that several of them were put in practice at the trials of Lord Preston, and Ashton, of Anderton, and of the conspirators engaged in the Assasination Plot. And every impartial mind will reflect with horror on the atrocious conduct of that Government, which, after the passing of the Treason Act, could bring individuals to their trial, and put in force against them those cruel regulations which it was the object of that Statute to abolish; at a moment, when the time for the operation of the new law was speedily to commence, and in one instance, when the next day would have conferred the benefits of it upon the prisoner. It is likewise deeply to be lamented, that the strenuous opposition which the Treason Bill encountered in its progress through the Houses of Parliament, cannot fail to blacken the memory of several individuals, who are otherwise endeared to posterity by the magnitude of their claims upon the gratitude of this nation.A striking difference between the form of ancient and modern trials in civil matters, is in the manner of counting or pleading, which appears from the first reports remaining of our legal proceedings, to have been originally vivâ voce. Some curious specimens of this practice, of a very early date, are given by Mr. Reeves in his History of the Law, which resemble the scholastic disputations, so fashionable in those days. (Reeves's History of the Law, Edw. I, Edw. II.)-A distinguishing characteristic of the Verdict is the requisite unanimity of the Jurors. In ancient times it was in the power of the Judge, when there was a division of opinion among the Jurymen, to afforce the Assize, that is, to dismiss the minority and to substitute new Jurors continually until an unanimous decision of twelve persons was obtained. (Glanville, lib. ii. c. 17. Bracton, lib. iv. c. 19. Fleta, p. 230.) So, in ancient times, verdicts were often taken according to the voice of the majority, or as it was termed, "ex dicto majoris partis." (2 Hale, P. C. p. 297. Fitz. Ab. Verd. 40, Bro. Ab. Jurors 53.) However

it became settled by a solemn decision in the reign of Edw. III, that a verdict by less than twelve Jurors was nugatory. (41 Ass. 11.) And it is doubtful whether the contrary rule ever prevailed in prosecutions. (Fleta, p. 52, Kelh. Brit. p. 42.) Lenity to the prisoner in criminal cases, and in civil the practice of attaints are supposed by Barrington to have been the causes for requiring the unanimity of Juries by our law. (Barrington's Observations on 29th Chap. of Magna Charta.) Incidental to the same regulation is the custom of withholding all refreshment from Juries until they have delivered their verdict. Barrington conjectures from the recital of an ancient Statute, that the object of this rule was to prevent opportunities of bribery. Others have thought that it arose from a desire to preserve decorum in Courts of Justice, by prohibiting legal proceedings after indulgencies at the table, and confining them to the time of morning, when the mind is in greatest vigor. And this hypothesis derives countenance from some of the institutions of Greece and Rome, and from the language of the Canons of the Church. (Taylor's Civil Law, p. 399. Spelman on Terms. Barrington's Observations on the 34th and 35th Henry VIII.) There are many cases in the State Trials, in which the Juries appear to have suffered great hardships on account of their being denied refreshment and necessary comfort. (Clarkson's Life of Penn, Vol. I. p. 77. Cases of Penn and Meade, of the Seven Bishops, Lilburne, Archibald Hamilton, in the State Trials. Barrington's Observations on 34 and 35 Henry VIII. where see the passage from Stiernhook de jure Sueonum. Also Emlyn's Remarks upon the Subject, in the Preface to Hargr. St. Tr. As to carrying the Jury about in Carts till they have agreed. 19 Ass. 6. 41 Ass. 11.) In recent times, the unusual length of trials has sometimes dictated the necessity of an adjournment. (Barrington's Obervations on 34 and 35 Henry VIII. and see the References in the Discussion of the Subject, Hardy's Case, St. Tr.) So there are several instances in which a Jury has been dismissed before giving their verdict. (See the Opinions in Sir J. Weddeburn's Case, Foster's Crown Law.) But the adoption of this measure simply with the design of deferring a trial, because the evidence of the Crown is found insufficient for the purpose of conviction, will ever be stigmatized as of a piece with the rest of the proceedings against the persons suspected of the Popish Plot.The distinction between the province of the Jury, and that of the Judge is an important consideration, arising out of the enquiry respecting the verdict. This is a question, which from its relation to prosecutions for political libel, has given rise to more interesting discussions, than perhaps any other subject connected with the jurisprudence of the Country. (Parliamentary Debates, A. D. 1792, particularly the Opinion of the Judges, the Protest of the Lords, Lord Mansfield's

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Paper, left with the Clerk of the House of Lords, and the Questions propounded to Lord Mansfield by Lord Camden. Case of the Dean of St. Asaph, St. Tr. Hargr. Co. Litt. 155.b. n. 5. Wynne's Eunomus, Dial. iii. Among the older Authorities, Bracton, lib. iv. c. 19. Hobbes's Dialogue between a Lawyer and Philosopher, p. 625. Leviathan, c. 25. Lord Clarendon's Survey of the Leviathan, p. 129.) -Another circumstance to which the consideration of the verdict leads, is the influence that Juries have had in interpreting and modifying the laws. This is a singular fact in the History of the Constitution of this Country, but which has hitherto been little remarked: some valuable observations on the subject will be found in Lord J. Russell's Essay on the English Government; and in a late prosecution for murder in a duel in Scotland, the topic was introduced with great ability by the counsel for the defence. (See Printed Trial for the Murder of Sir A. Boswell.)

With respect to the penal consequences attaching to Jurors on 3 account of their verdict: it is remarkable how often the complaint against them, for perjury, is repeated in ancient Statutes, and not against the witnesses produced at trials. (Barrington's Observations on 11 Henry VII. St. 38 Edw. III. 3 Henry VI. 23, c. 10. 6, c. 1. 8, c. 1. with the Titles Embracery and Decies Tantum, in the Digests.) Scarcely less objectionable than direct bribery was the custom which formerly prevailed of entertaining the Jury, after giving their verdict, at the expence of the successful party. Sir T. Smith in his Commonwealth, mentions this to have been the usage in his time: and a very curious example of it occurs in a letter written to Archbishop Sancroft, by the Solicitor employed for the Seven Bishops. (Doyley's Life of Sancroft. See also Sir J. Hawles's Remarks on Lord Russell's Case, for the Conduct of the Government in this respect during the Reign of Car. II.) The doctrine of attaint is now, as Lord Mansfield observed, a mere sound in every case, and in many cases it did not ever pretend to be a remedy. (Bright v. Eynon, 1 Burr. 390. Com. dig. Attaint.) The practice of granting new trials has entirely superseded it; a practice which may be traced as high as the year, A. D. 1655, and perhaps the reason it cannot be traced earlier, is, that the old reports do not give any account of determinations made by the Courts upon motions. Barrington states, that no prosecution by attaint had been carried on against a Jury for the last three hundred years: Sir T. Smith (who wrote his Commonwealth of England in the year A. D. 1565) accounts for attaints being disused, and amongst other reasons he says, that it was very difficult to procure the attendance of a Jury, in this sort of trial; as people were very averse to be instrumental in inflicting upon their neighbours the severe penalties ensuing upon a conviction. (Barrington's Observations on West. I. Sir T. Smith de Rep. lib. iii. c. 2. 3 Inst. 222. For the Law in the time of Fortescue, the Statutes, Henry VI. 11, c. 4. 15,

c. 5. 18, c. 2.) It has been observed by Mr. Brodie in his History of the British Empire, that Fortescue while he speaks of the attaint, never gives a hint of any power to try or punish a Jury except in that way. This remark is important with reference to the question, respecting the antiquity of the Star Chamber; for it has been contended, that this Court must have been of very early institution, because it is to be supposed that there existed somewhere a power to restrain the corruption of Juries, and it was found that one Jury would seldom attaint another. In the controversy upon this subject, the testimony of Sir T. Smith has been cited for the purpose of shewing that the Star Chamber, for a long time, seldom ventured to punish juries, though it affected the right. Speaking in the reign of Queen Elizabeth, he says, that although Juries were often commanded to appear before the Court of Star Chamber, the matter was commonly passed over with a rebuke: he specifies only two instances, and those occuring in a previous reign, in which Juries had been fined; "but," says he, "those doings were even then of many accounted very violent, tyrannical, and contrary to the liberty and custom of the Realm of England." Examples are too frequent in English History, of severities having been exercised against Jurymen, on account of their delivering verdicts which were displeasing to the ruling power of the State, and to none does the infamy of such proceedings attach with a deeper dye than to Cromwell. (Lord Herbert's Henry VIII, p. 6. The Cases of Throgmorton's and Lilburne's Juries, in the St. Tr. and "The World's Mistake in Oliver Cromwell," Harl. Misc.) In the reign of Charles II. Bushell was brought before the Court of Common Pleas, upon a habeas corpus, by which his commitment appeared to be expressed in the following terms: "That being a Juryman among others charged at the Session Court of the Old Bailey, to try the issue between the King, and Penn and Meade, upon an indictment for assembling unlawfully and tumultuously, he did contra plenam et manifestam evidentiam' openly given in Court, acquit the prisoners indicted." Vaughan the Chief Justice, discharged the juryman, and, in an admirable argument, maintained the invaluable doctrine, that the Jury, in the delivery of their verdict, which is a judicial function, are unaccountable to any power in the State.

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