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A  HISTORY 

OF 

THE  CRIMINAL  LAW  OF  ENGLAND. 


VOL.   I. 


A   HISTORY 


OF 


THE  CEIMINAL  LAW 
OF  ENGLAND. 


BY 

SIR  JAMES  FITZJAMES  STEPHEN,  K.C.S.L,  D.C.L., 

A  JUDGE  OF  THE  HIGH  COtIRT  OF  JUSTICE,   QTJEEN'S  BENCH  DIVISION. 


IN  THEEE  YOLUMES. 
VOL,    L 


If  onlron : 

MACMILLAN    AND    00. 

1883. 

The  Right  of  Translaiion  and  Bejiroduclion  is  Beaerved. 


LONDON : 

R   Cti-T,  Sons,  and  Taylor, 

BREAD  STREET  HILL. 


PEEFACE. 

This  work,  which  attempts  to  relate  the  history  of  the 
Criminal  Law  of  England,  has  a  history  of  its  own. 

In  1863  I  published  what  in  one  sense  may  be  called  the 
first  edition  of  this  work  under  the  title  of  A  General  View  of 
the  Criminal  Lofw.^^ln  18jp9  I  became  Legal  Member  of  the 
Council  of  the  Vicerpy  in  India,  and  held  that  office  for  about 
two  years  and  a  half,  during  which  time  my  attention  was 
strongly  directed,  from  the  legislative  point  of  view,  to  the 
subject  of  Criminal  Law,  and  particularly  to  its  codification. 
Amongst  other  things,  I  drew  and  carried  through  the 
Legislative  Council  the  Code  of  Criminal  Procedure,  Act  X. 
of  1872,  which,  with  some  slight  alterations  and  variations 
has  just  been  reenacted  and  extended  to  the  High  Courts 
by  Act  X.  of  1882. 

In  1873  or  1874  I  was  informed  that  a  second  edition  of 
my  General  View  was  wanted.  I  began  to  prepare  one,  but 
I  found  myself  hampered  at  every  page  by  the  absence  of 
any  authoritative  statement  of  the  law  to  which  I  might 
refer.  It  then  occurred  to  me  ■  that  as  there  was  no  such 
statement  in  existence  I  might  write  something  which  at 
all  events  would  express  my  own  views  as  to  what  the  law 
was,  to  which  I  might  refer  in  discussing  its  provisions 
historically  and  critically.  Acting  on  this  I  wrote  my  Digest 
of  the  Criminal  Law  which  was  published  in  1877,  and  cf 
which  a  third  edition  is  just  coming  out.     The  Digest  does 


VI  PREFACE. 

not  deal  with  the  subject  of  Procedure.  In  order  at  once 
to  complete  it  and  to  enable  the  readers  of  the  present  work 
to  see  the  law  of  Criminal  Procedure  as  well  as  that  of  crimes 
and  punishments  stated  systematically,  I  have  (with  the  help 
of  my  eldest  son)  written  as  a  companion  to  the  earlier  Digest 
a  Digest  of  the  Lavj  of  Criminal  frocedure,  which  is  published 
contemporaneously  with  the  present  work. 

When  the  Digest  of  the  Criminal  Law  was  written  it 
occurred  to  me  that  with  a  little  alteration  it  would  make 
a  Draft  Penal  Code.  I  communicated  this  view  to  Lord 
Cairns  (then  Lord  Chancellor)  and  to  the  late  Lord  Justice 
Holker  (then  Attorney-General),  and  under  their  authority 
I  drew  the  Draft  Criminal  Code  ofil878,  which  was  introduced 
into  Parliament  by  Sir  John  Holker  in  the  session  of  that 
year.  Thanks  to  a  great  extent  to  the  admirable  skill  with 
which  Sir  John  Holker  brought  forward  a  measure  which  he 
appreciated  with  extraordinary  quickness,  for  I  think  his 
attention  had  never  before  been  directed  to  the  subject  of 
codification,  the  bill  was  favourably  received,  but  Parlia- 
ment had  not  time  to  attend  to  it.  A  commission,  however, 
was  issued  to  Lord  Blackburn,  Mr.  Justice  Barry,  Lord- 
Justice  Lush,  and  myself,  to  inquire  into  and  consider  and 
report  upon  the  Draft  Code.  It  was  accordingly  considered 
by  us  for  about  five  months,  namely  from  November,  1878, 
to  May,  1879.^  We  sat  daily  during  nearly  the  whole  of  that 
time,  and  discussed  every  line  and  nearly  every  word  of  every 
section.  The  Draft  Code  which  was  appended  to  the  Report 
speaks  for  itself  It  differs  slightly  from  the  Draft  Code 
of  1878.  The  particulars  of  the  differences  are  stated  in  the 
Report  prefixed  to  the  Draft  Code  of  1879.  I  did  not  discover, 
in  the  course  of  the  searching  discussions  of  every  detail  of 
the  subject  which  took  place,  any  serious  error  or  omission 
^  The  Report  was  signed  June  12,  1879. 


PREFACE.  vii 

in  the  Digest  upon  which  both  measures  were  founded.  Our 
report  was  presented  too  late  for  the  Code  to  be  passed  in 
1879.  In  1880  there  was  a  change  of  ministry,  but  in  1882 
the  part  of  the  Code  which  related  to  Procedure  was 
announced  in  the  Queen's  Speech  as  a  Government  measure. 
It  had,  however,  to  be  postponed,  like  many  other  things, 
to  matters  of  a  more  pressing  nature.  For  reasons  stated 
at  length  in  the  present  work  I  should  deeply  regret  the 
division  of  the  Code  into  separate  parts.  Such  a  course  would 
in  my  opinion  produce  confusion  and  deprive  the  measure 
of  much  of  its  value.  If  it  is  said  that  the  Code  taken 
as  a  whole  is  too  extensive  a  measure  to  be  disposed  of  in 
a  single  session,  it  may  be  replied  that  it  is  not  longer  than 
other  single  acts — for  instance,  the  Merchant  Shipping  Act  of 
1854  ;  and  it  may  be  added  that  by  far  the  greater  part  of 
the  Act  is  mere  reenactment,  and  would  in  all  probability 
give  rise  to  no  discussion.  At  all  events,  if  the  Bill  is 
divided  into  two  parts,  it  would  be  desirable  to  suspend  the 
operation  of  the  one  first  passed  till  the  other  could  be 
enacted.  They  are  so  interwoven  that  it  would  be  incon- 
venient to  bring  one  into  operation  alone.  To  give  a  single 
instance.  How  can  you  retain  the  distinction  between  felony 
and  misdemeanour  as  a  part  of  the  substantive  law,  and  yet 
remove  it  from  the  law  of  procedure  ?  How,  if  it  is  removed 
from  the  law  of  procedure,  retain  it  as  part  of  the  substantive 
law  ?  There  is  no  hurry  about  the  matter.  The  law  as  it 
stands  is  perfectly  well  understood  and  in  substance  requires 
Uttle  alteration.  The  use  of  codification  would  be  to  give  it 
literary  form,  and  so  to  render  it  generally  accessible  to  all 
whom  it  concerns.  Surely  it  would  be  unwise  to  perform  the 
operation  in  such  a  way  as  to  deprive  the  result  of  its 
principal  value. 

As  soon  as  the  sittings  of  the  Criminal  Code  Commissions 


vni  PREFACE. 

were  over  I  returned  to  the  work  which  the  preparation  and  ■ 
revision  of  the  Draft  Codes  of  1878  and  1879  had  forced 
me  to  lay  aside. 

On  turning  back  to  the  book  published  in  1863  I  found 
that  though  the  experience  collected  in  the  manner  already- 
stated  had  confirmed  large  parts  of  what  I  had  written,  the 
book  was  in  many  places  crude  and  imperfect,  and  that  in , 
some  respects  it  no  longer  represented  my  views.  It  seemed, 
accordingly,  that  if  the  work  was  to  be  republished  it  must 
be  rewritten,  and  the  present  work  is  the  result.  I  am  con- 
scious of  many  defects  in  it  for  which  my  best  apology  is 
that  it  has  been  written  in  the  intervals  of  leisure  left  by  my 
judicial  duties.  It  is  longer  and  more  elaborate  than  I 
originally  meant  it  to  be,  but,  until  I  set  myself  to  study  the 
subject  as  a  whole,  and  from  the  historical  point  of  view,  I  had 
no  idea  of  the  way  in  which  it  connected  itself  with  all 
the  most  interesting  parts  of  our  history,  and  it  has  been 
matter  of  unceasing  interest  to  see  how  the  crude,  imper- 
fect definitions  of  the  thirteenth  century  were  gradually 
moulded  into  the  most  complete  and  comprehensive  body  of 
criminal  law  in  the  world,  and  how  the  clumsy  institutions 
of  the  thirteenth  century  gradually  grew  into  a  body  of 
courts  and  a  course  of  procedure  which,  in  an  age  when  every- 
thing is  changed,  have  remained  substantially  unaltered,  and 
are  not  alleged  to  require  alteration  in  their  main  features. 
Much  has  been  said  and  written  of  late  years  on  the  historical 
method  of  treating  legal  and  pohtical  matters,  and  it  has  no 
doubt  thrown  great  light  on  the  laws  and  institutions  of 
remote  antiquity.  Less  has  been  done  in  investigating 
comparatively  modem  laws  and  institutions.  The  history  of 
one  part  of  our  institutions  has,  under  the  name  of  constitu- 
tional history  or  law,  been  investigated  with  admirable  skill 
and  profound  learning.     Comparatively  little  has  been  done 


PREFACE.  IX 

towards  writing  the  history  of  other  branches  of  our  law  which 
are  perhaps  more  intimately  connected  with  the  current  busi- 
ness of  life.  Of  these  the  criminal  law  is  one  of  the  most 
important  and  characteristic.  No  department  of  law  can  claim 
greater  moral  importance  than  that  which,  with  the  detail  and 
precision  necessary  for  legal  purposes,  stigmatises  certain  kinds 
of  conduct  as  crimes,  the  commission  of  which  involves,  if 
detected,  indelible  infamy  and  the  loss,  as  the  case  may  be, 
of  life,  property,  or  personal  liberty.  A  gradual  change  in 
the  moral  sentiments  of  the  community  as  to  crime  in 
general  and  as  to  each  separate  crime  in  particular,  displays 
itself  in  the  history  of  legislation  on  the  subject,  and 
particularly  in  the  history  of  legal  punishments.  The 
political  and  constitutional  interest  of  the  subject  is  not 
inferior  to  its  moral  interest.  Every  great  constitutional 
question  has  had  its  effect  both  on  criminal  procedure  and 
on  the  definition  of  crimes.  I  may  instance  the  history 
of  impeachments,  the  history  of  the  criminal  jurisdiction  of 
the  Privy  Council,  the  history  of  the  gradual  development  of 
the  modern  system  of  trial,  the  history  of  the  law  relating 
to  treason,  and  that  of  the  law  relating  to  libel.  Subjects 
of  even  more  vital  interest  than  politics  have  their  bearing 
upon  the  criminal  law.  Any  history  of  it  which  omitted 
the  subject  of  religious  offences  would  be  incomplete,  but 
that  history  involves  a  sketch  of  the  process  which  has, 
in  the  course  of  about  five  centuries,  changed  a  legislative 
system,  based  upon  practically  unanimous  belief  in  the  doc- 
trines of  the  mediaeval  church,  into  a  system  which,  accord- 
ing to  some,  is  based  upon  the  principle  that  for  legislative 
purposes  many  religions  are  to  be  regarded  as  about  equally 
true  (which  is  probably  what  is  meant  by  the  principle  of 
religious  equality),  and  according  to  others  on  the  principle 
that  all  religions  are  untrue. 


X  PREFACE. 

The  subject  of  criminal  responsibility  and  the  relation 
of  madness  to  crime  cannot  be  discussed  without  saying 
something  on  subjects  forming  the  debateable  land  between 
ethics,  physiology,  and  mental  philosophy. 

Again,  the  different  views  of  social  and  political  economy 
which  have  prevailed  at  different  times  have  left  traces, 
amongst  others,  on  the  laws  which  punish  offences  against 
trade,  and  on  the  laws  against  vagrancy  and  on  the  game 
laws. 

Even  the  history  ot  crimes  which  are  crimes  and  nothing 
else,  such  as  homicide  in  its  two  forms,  and  theft,  is  full 
of  interest,  partly  bfecause  it  illustrates  the  unexpressed 
views  of  many  different  ages  upon  violence  and  dishonesty, 
and  partly  because  it  is  perhaps  the  most  striking  illus- 
tration to  be  found  in  toy  part  of  the  law  of  the  process 
by  which  the  crude  and  meagre  generalities  of  the  early 
law  were  gradually  elaborated  into  a  system  erring  on  the 
side  of  over  luxuriance  and  refinement,  but  containing  mate- 
rials of  the  highest  value  fof  systematic  legislation. 

Lastly,  the  Criminal  Law,  like  every  other  important  branch 
of  the  law,  connects  itself  with  other  systems,  and  that  in 
several  ways.  First,  the  question  of  its  local  extent  has 
much  to  do  with  questions  connected  with  International 
Law.  Secondly,  it  has  been  the  parent  of  other  systems, 
one  of  which  at  least  (the  Criminal  Law  of  India)  is  on 
its  own  account  a  topic  of  great  interest,  whilst  it  becomes 
doubly  interesting  when  it  is  regarded,  as  it  ought  to  be, 
as  a  rationalised  version  of  the  system  from  which  it  was 
taken.  Thirdly,  it  is  difficult  to  criticise  the  system  properly 
or  to  enter  into  its  spirit  except  by  comparing  it  with 
what  may  be  described  as  the  great  rival  system, — that 
which  is  contained  in  the  French  and  German  Penal  Codes, 
both   of  which   may  be  regarded  to  a    certain   extent   as 


PREFACE.  XI 

rationalised  versions  and  developments  (though  in  each  case 
at  several  removes)  of  the  Criminal  Law  of  Eome. 

I  have  tried  to  deal  with  these  matters  in  such  a  manner 
as  to  write  a  hitherto  unwritten  chapter  of  the  history  of 
England,  and  at  the  same  time  to  explain  one  of  the  most 
important  branches  of  the  existing  law,  and  to  show  on  what 
foundations  rests  the  Code  in  which  it  is  proposed  to 
embody  it. 

J.  F.  Stephen. 

Anaverna, 

Eavensdalb, 

Co.    LOTJTH, 

Oa.  19, 1882. 


CONTENTS. 


CHAPTER  I. 

PAGE 
STATEMENT  OF  THE   SUBJECT   OF   THE  WORK 1 


CHAPTER  II. 

SOMAN  CRIMINAL  LAW 


CHAPTER  lU. 

EARLY  ENGLISH   CRIMINAL  LAW ....  51 

CHAPTER  IV. 

THE  ORDINARY  CRIMINAL  COURTS — QUEBn's  BENCH  DIVISION  OF  THE 
HIGH  COURT,  THE  COURTS  OF  ASSIZE,  THE  COURTS  OF  QUARTER 
SBSSIOtfS,  COURTS  OF  SUMMARY  JURISDICTION,  FRANCHISE  COURTS, 
WELSH   COURTS 75 


CHAPTER  V. 

I;HE  CRIMINAL  JURISDICTION   OF  PARLIAMENT  AND    THE    COURT  OF  THE 

LORD  HIGH  STEWARD 145 


XIV  CONTENTS. 


CHAPTER  VI. 

PAGE 


THE   CRIMINAL  JURISDICTION   OF  THE  PRIVY 


OOTTNCIL 166 


CHAPTER  VII. 

HISTORY  OF  THE    LAW    OF    CRIMINAL    PROCEDURE. — PROCBDUBB    DOWN 

TO  COMMITTAL  FOR  TRIAL  OR  BAIL 184 


CHAPTER  VIII, 

HISTORY  OF  THE    LAW    OF    CRIMINAL    PROCEDURE   CONTINUED. — FORMS 

OF    ACCUSATION    AND  TRIAL — APPEALS — ORDEALS — TRIAL  BY  JURY  244 


CHAPTER  IX. 

HISTORY  OF  THE  LAW  OF  CRIMINAL  PROCEDURE  CONTINUED. — LEGAL 
INCIDENTS  OF  A  CRIMINAL  TRIAL — INDICTMENT  AND  INFORMATION 
— ARRAIGNMENT,   TRIAL,    AND   VERDICT 273 


CHAPTER  X. 

HISTORY   OF  THE  LAW  OF  CRIMINAL  PROCEDURE  CONTINUED. — PROCEED- 
INGS BY  WAY  OF  APPEAL 308 


CHAPTER  XI. 

HISTORY  OF   CRIMINAL  TRIALS  IN  ENGLAND  FROM   1554 — 1760   ....     319 


CHAPTER  XII. 

DESCRIPTION   OF  MODER,N    CRIMINAL  TRIALS 428 


CONTENTS. 


CHAPTER  XIII. 

HAOE 
HISTORY   OF   LEGAL  PUNISHMENTS ^ 457 


CHAPTER  XIV. 

MANAGEMENT   OP   PEOSECUTIONS ....     493 


CHAPTER  XV. 

GENERAL  AND   COMPAEATIVE  VIEW  OF  ENGLISH  AND  FKENCH  CRIMINAL 

PROCEDURE        £04 


*»'  For  List  of  Cases  named,  Statutes  cited  and  General  Index, 
see  end  of  Volume  III. 


EREATA  AND  COEEiaENDA. 

Vol.  I. 

P.    56)  last  Iwie,  omit  "[?culpain]"  and  add  the  following  note  to  the  word 

"  colpum  :  " — "Colpus  Gallis  amp  Italis    colpo  diminutivum  ex 

colaphus." — Ducange,  sub  voce. 
P.    70,  note  2,  for  "  Hen.  8,"  read,  "Hen.  1." 
P.    71,  line  20  from  top,  for  "  thedir,"  read,  "  theow." 
P.    98,  last  line,  for  "goal,"  read,  "gaol." 
P.  116,  last  line  of  note  \,for  "  c.  79,"  read  "  c.  76." 
P.  126,  The  passage  quoted  from  Bracton  is  in  Vol.  II.,  p.  538. 
P.  127,  Twte  2,  for  "  Sir  H.  Twiss,"  read,  "  Sir  T.  Twiss." 
P.  241,  add  to  note  i  the  following : — "  The  &c.,  to  which  this  note  is  made  is 

a  misprint  in  Sir  T.  Twiss's  edition  for  'vie.,'  the  abbreviation  of 

vioecomites,  which  makes  the  passage  clear." 

Vol.  II. 

P.    17,  note  1,  lin^  2,  for  "Horace,"  read  "  Travers." 
P.  187,  line  5  from  the  bottom,  for  "cnr,"  read  "  eas." 

Vol.  in. 

P.    15,  line  8 from  bottom,  dele  "who." 

P.    21,  line  17 from  top,  dele  "two." 

P.    29,  Zi»e  next  below  the  table,  for  "  Horace,"  read  "  Travers.' 

P.  152,  Twte  l,for  "Shaw,"  read  "Show." 

P.  179,  line  17,  for  "actions,"  read  "sections." 

P.  321,  line  6  frojn  top,  for  "  they,"  read  "  he." 


CEIMINAL  LAW. 

CHAPTEE   I. 

STATEMENT  OF  THE  SUBJECT  OF  THE  WORK. 

A  COMPLETE  account  of  any  branch  of  the  law  ought  to    Chap.  I. 
consist  of  three  parts,  corresponding  to  its  past,  present,  and 
future  condition  respectively.     These  three  parts  are — 

(1)  Its  history. 

(2)  A  statement  of  it  as  an  existing  system. 

(3)  A  critical  discussion  of  its  component  parts  with  a  view 
to  its  improvement. 

My  Digest  of  the  Criminal  Law  and  the  Digest  of  the  Law 
of  Criminal  Procedure  now  published  as  a  companion  volume 
to  it  are  attempts  to  state  the  most  important  parts  of  the 
criminal  law  as  it  is  systematically.  The  present  work  is 
intended  to  relate  its  history,  and  to  criticise  its  component 
parts  with  a  view  to  their  improvement.  The  criticism  is 
for  the  most  part  interwoven  with  the  history. 

Before  undertaking  either  of  these  tasks  I  must  endeavour 
to  define  what  I  mean  by  the  Criminal  Law.  The  most 
obvious  meaning  of  the  expression  is  that  part  of  the  law 
which  relates  to  crimes  and  their  punishment — a  crime 
being  defined  as  an  ,  act  or  omission  in  respect  of  which 
legal  punishment  may  be  inflicted  on  the  person  who  is  in 
default  either  by  acting  or  omitting  to  act. 

""-■'■  it -J,. 


2  DEFINITION    OF   CEIMINAL   LAW. 

Chap.  I.  This  definition  is  too  wide  for  practical  purposes.  If  it 
were  applied  in  its  full  latitude  it  would  embrace  all  law 
whatever,  for  one  specific  peculiarity  by  which  law  is  dis- 
tinguished from  morality  is,  that  law  is  coercive,  and  all 
coercion  at  some  stage  involves  the  possibility  of  punish- 
ment. This  might  be  shown  in  relation  to  matters 
altogether  unconnected  with  criminal  law,  as  the  expression 
is  commonly  understood,  such  as  legal  maxims  and  the  rules 
of  inheritance.  A  judge  who  wilfully  refused  to  act;  upon 
recognised  legal  maxims  would  be  liable  to  impeachment. 
The  proprietary  rights  which  are  protected  by  laws  punishing 
ofiences  against  property  are  determined  by  the  application 
of  those  laws.  If  there  were  no  such  crimes  as  theft,  forcible 
entry,  malicious  mischief,  and  the  like,  and  if  there  were  no 
means  of  forcing  people  to  respect  proprietary  rights,  there 
would  be  no  such  thing  as  property  by  law. 

This  is  no  doubt  a  remote  and  abstract  speculation.  The 
principle  on  whicb  it  depends  may  be  displayed  by  more 
obvious  and  important  illustrations.  It  would  be  a  violation 
of  the  common  use  of  language  to  describe  the  law  relating 
to  the  celebration  of  marriage,  or  the  Merchant  Shipping 
Act,  or  the  law  relating  to  the  registration  of  births,  as 
branches  of  the  criminal  law.  Yet  the  statutes  on  each  of 
these  subjects  contain  a  greater  or  less  number  of  sanctioning 
clauses  which  it  is  difficult  to  understand  without  reference 
to  the  whole  of  the  acts  to  which  they  belong.  Thus,  for 
instance,  it  is  felony  to  celebrate  marriage  otherwise  than 
according  to  the  provisions  of  certain  ^Acts  of  Parliament 
passed  in  1823  and  1837,  and  these  provisions  form  a 
connected  system  which  cannot  be  understood  without 
reference  to  the  common  law  on  the  subject.  These  illus- 
trations (which  might  be  indefinitely  multiplied)  show  that 
the  definition  of  criminal  law  suggested  above  must  either  be 
considerably  narrowed  or  must  conflict  with  the  common  use 
of  language  by  including  many  parts  of  the  law  to  which 
the  expression  is  not  usually  applied. 

For  all  practical  purposes  a  short  description  of  the  subject- 
matter  to  which  the  expression  "  criminal  law  "  is  commonly 
1  Dig.  Orim.  Law,  259,  260. 


DESCRIPTION   OF   CRIMINAL   LAW.  3 

applied  is  more  useful  than  any  attempt  to  sum  up  in  a  few    chap.  I. 

words  the  specific  peculiarity  by  which  this  is  distinguished       

from  other  parts  of  the  law.  The  following  is  such  a  descrip- 
tion :  The  criminal  law  is  that  part  of  the  law  which  relates 
to  the  definition  and  punishment  of  acts  or  omissions  which 
are  punished  as  being  (1)  attacks  upon  public  order,  internal 
or  external ;  or  (2)  abuses  or  obstructions  of  public  authority ; 
or  (3)  acts  injurious  to  the  public  in  general;  or  (4)  attacks 
upon  the  persons  of  individuals,  or  upon  rights  annexed  to 
their  persons ;  or  (5)  attacks  upon  the  property  of  individuals 
or  rights  connected  with,  and  similar  to,  rights  of  property. 

The  laws  which  relate  to  these  subjects  may  again  be 
classified  under  three  heads ;  they  are — 

First,  general  doctrines  pervading  the  whole  subject. 
These  doctrines  might  be  called  collectively  the  conditions 
of  criminality.     They  consist   partly  of  positive  conditions,  , 

some  of  which  enter  more  or  less  into  the  definition  of 
nearly  all  offences,  the  most  important  being  malice,  fraud, 
negligence,  knowledge,  intention,  will.  There  are  also  nega- 
tive conditions  or  exceptions  tacitly  assumed  in  all  defini- 
tions of  crimes,  which  may  be  described  collectively  as  matter 
of  excuse. 

Secondly,  the  definition  of  crimes  and  the  apportionment 
to  them  of  punishments. 

Thirdly,  the  procedure  by  which  in  particular  cases  crimi- 
nals are  punished  according  to  those  definitions. 

All  the  laws  which  would  commonly  be  described  as  form- 
ing part  of  the  criminal  law  of  this  country  might  be  classified 
under  one  or  other  of  these  heads. 

The  description  of  criminal  law  which  I  have  substituted 
for  a  definition  in  the  stricter  sense  of  the  word  is  intended 
to  exclude  two  large  and  important  classes  of  laws  which 
might  perhaps  be  included  not  only  with  theoretical  pro- 
priety, but  in  accordance  with  popular  language,  under  the 
phrase  "  criminal  law."  These  are,  first,  laws  which  constitute 
summary  or  police  offences,  and  secondly,  laws  which  impose 
upon  certain  offenders  money  penalties,  which  may  be  recovered 
by  civil  actions,  brought  in  some  cases  by  the  person  offended, 
in  others  by  common  informers.     Summary  offences  have  of 

B  2 


4  SUMMARY   OFFENCES  AND  PENAL  ACTIONS. 

Chap.  I.  late  years  multiplied  to  such  an  extent  that  the  law  relating  to 
them  may  be  regarded  as  forming  a  special  head  of  the  law  of 
England.  Such  offences  differ  in  many  important  particulars 
from  those  gross  outrages  against  the  public  and  against 
individuals  which  we  commonly  associate  with  the  word 
crime.  Ifc  would  be  an  abuse  of  language  to  apply  such  a 
name  to  the  conduct  of  a  person  who  does  not  sweep  the 
snow  from  before  his  doors,  or  in  whose  chimney  a  fire  occurs. 
On  the  other  hand,  many  common  oflfences  against  person 
and  property  have  of  late  years  been  rendered  liable  to 
punishment  by  courts  of  summary  jurisdiction,  and  such  cases 
and  the  courts  by  which  they  are  tried  fall  within  the  scope  of 
the  subject  of  this  book,  and  are  dealt  with  in  their  place. 

Penal  actions  by  which  private  persons  may  in  particular 
cases  protect  rights  of  a  peculiar  kind  are  still  further  re- 
moved from  the  associations  which  commonly  connect 
themselves  with  a  criminal  prosecution.^  If  a  lecture  is  pub- 
lished without  the  lecturer's  leave,  he  has  power,  after  taking 
certain  precautions,  to  seize  all  published  copies,  and  to  re- 
cover a  penalty  in  respect  of  each  of  them ;  but  a  proceeding 
to  enforce  such  a  right  is  a  civil  action,  and  differs  in  many 
ways  from  a  criminal  proceeding,  though  it  has  the  practical 
effect  of  imposing  a  heavy  fine  on  the  person  in  default.  I 
have  not,  however,  left  entirely  unnoticed  either  the  law 
relating  to  offences  dealt  with  in  a  summary  way  or  the  law 
relating  to  penal  actions. 

I  have  intentionally  substituted  this  short  description  of  the 
contents  of  an  actually  existing  body  of  law  for  any  definition 
attempting  to  sum  up  the  characteristics  of  criminal  law  in  a 
more  abstract  way,  because  the  only  abstractions  which  in  any 
degree  correspond  with  existing  facts  in  reference  to  law  are  too 
wide  in  their  sweep  to  furnish  materials  for  such  a  definition. 

Austin's  definition  of  a  law  leaves  room  for  no  other 
definition  of  a  crime  than  an  act  or  omission  which  the 
law  punishes,  and  the  reasons  already  given  show  that  for 
practical  purposes  this  definition  is  inconveniently  wide. 
I  do  not  think  that  this  result  in  any  way  discredits 
Austin's  definition  of  a  law,  which  is  nothing  more  than  the 
1  6  &  6  Will.  4,  c.  65. 


DISCUSSIONS  AS   TO   EIGHT  TO   PUNISH.  5 

recognition  and  record  of  the  fact  that  there  are  in  all  Chap.  I. 
human  societies  rules  of  conduct,  differing  from  other  rules 
of  conduct  in  the  circumstance  that  ohedience  to  them  is 
in  some  cases,  and  may  be  in  all  cases,  enforced  by  the 
collective  strength  of  the  society  in  which  they  exist.  To 
confine  the  word  "law"  to  such  rules,  and  to  apply  it  to 
them  irrespectively  of  their  goodness  or  badness  and  of  their 
origin  is,  I  think,  the  first  condition  of  clearness  in  all  specu- 
lations on  the  subject.  The  only  alternative  is  to  attempt 
to  embody  goodness  or  wisdom  in  the  definition  of  law, 
one  effect  of  which  must  be  to  introduce  into  all  legal 
questions  the  uncertainty  which  belongs  to  all  discussions 
upon  morality.  In  the  common  use  of  language,  however, 
the  word  "  crime  "  and  "  criminal  "  no  doubt  connote  moral 
guilt  of  a  more  serious  character  than  that  which  is  involved 
in  a  bare  infringement  of  law  as  defined  by  Austin.  The 
effect  of  this  difference  between  the  popular  meaning  of  the 
words  "  crime  "  and  "  criminal,"  and  that  broader  signification 
which  it  would  be  natural  to  attach  to  it  in  connection  with 
Austin's  definition  of  law,  is  given  by  restricting  the  meaning 
of  the  expression  "  criminal  law  "  in  the  manner  already  stated. 
Much  discussion  has  taken  place  on  subjects  connected, 
or  supposed  to  be  connected,  with  criminal  law,  which  I 
leave  on  one  side,  because  it  seems  to  me  at  once  idle  and 
interminable.  The  subject  in  question  is  usually  called 
the  ^  Right  to  Punish.  On  what  ground,  it  is  asked,  and 
under  what  limitations,  has  Society  a  right  to  punish  indi- 
viduals ?  These  questions  appear  to  me  to  be  almost  entirely 
unmeaning,  and  quite  unimportant.  Societies  are  stronger 
than  their  individual  members,  and  do  as  a  fact  system- 
atically hurt  them  in  various  ways  for  varioiis  acts  and 
omissions.  The  practice  is  useful  under  certain  conditions, 
and  injurious  under  other  conditions.  What  these  con- 
ditions are  is  a  question  for  legislators.  If,  all  matters 
being  duly  considered,  the  legislature  consider  it  expedient 
to  punish  a  given  action  in  a  given  way,  I  think  they  would 
be  guilty  of  weakness  if  they  did  not  punish  that  action  in 

'  Rossi's  TraiU  du  Droit  Crimincl  is  occupied  principally  by  discussions 
on  this  subject. 


O  DIFFICULTY  OF  WRITING  HISTORY  OF  LAW. 

Chap.  I.  that  way  although  they  had  no  right  to  do  so.  If  they 
considered  it  inexpedient  that  the  act  should  be  punished, 
they  would  be  cruel  if  they  punished  it,  however  good  a 
right  they  might  have  to  do  so.  On  this  account  the  whole 
of  the  discussion  as  to  the  right  to  punish  appears  to  me 
superfluous.  I  think  indeed  that  from  the  nature  of  the  case 
any  conclusion  as  to  any  right  alleged  to  exist  antecedently 
to  and  independently  of  some  law  from  which  it  is  derived 
must  be  arbitrary  and  fanciful. 

Taking  this  view  of  the  elements  of  which  the  criminal 
law  is  composed,  the  next  question  is  in  what  manner  its 
history  should  be  related. 

In  writing  the  history  of  a  body  of  law,  a  difficulty 
presents  itself  which  is  inherent  in  the  nature  of  the  subject, 
and  which  reduces  the  writer  to  a  choice  between  two  modes 
of  procedure,  neither  of  which  can  be  regarded  as  altogether 
satisfactory. 

The  law  of  England  as  a  whole,  or  even  the  criminal 
law  as  a  whole,  can  scarcely  be  said  to  have  a  history. 
There  is  no  such  series  of  continuous  connected  changes 
in  the  whole  system  as  the  use  of  the  word  "history" 
implies.  Each  particular  part  of  the  law,  however,  has 
been  the  subject  of  such  changes.  The  law  as  to  per- 
jury and  the  definition  of  the  crime  of  murder  have  each 
a  history  of  their  own,  but  the  criminal  law  regarded  as 
a  whole  is  like  a  building,  the  parts  of  which  have  been 
erected  at  different  times,  in  different  styles  and  for  differ- 
ent purposes.  Each  part  has  a  history  which  begins  at  its 
foundation  and  ends  when  it  reaches  its  present  shape, 
but  the  whole  has  no  history  for  it  has  no  unity.  How 
then  is  the  history  of  the  whole  to  be  related  ?  If  an 
account  of  each  successive  change  affecting  any  part  is  given 
in  the  order  of  time,  the  result  is  that  it  is  impossible  to 
foUow  the  history  of  any  one  part,  and  the  so  called  history 
becomes  a  mass  of  unconnected  fragments.  If,  on  the  other 
hand,  the  history  of  each  part  is  told  uninterruptedly,  there 
is  a  danger  of  frequent  repetitions.  After  much  considera- 
tion of  the  subject  the  second  course  has  appeared  to  me 
on  the  whole  to  be  the  least  objectionable  of  the  two. 


SCHEME    OF   THIS  WOEK.  7 

I  have  accordingly  dealt  with  the  subject  in  the  following    Chap.  I, 

order :— First,  I  have  given  some  account  of  the  Criminal  Law       

of  Rome,  which  has  in  many  ways  exercised  an  influence  on  our 
own  law.  I  have  then  described  both  the  substantive  law  and 
the  criminal  procedure  of  the  English  before  the  Conquest. 
Passing  to  the  history  of  the  existing  English  Criminal  Law 
I  have  given,  first  the  history  of  the  Courts.  Under  this  head 
I  have  traced,  first  the  history  of  the  ordinary  criminal  courts, 
namely,  the  Queen's  Bench  Division  of  the  High  Court,  the 
Assize  Courts,  the  Courts  of  Quarter  Sessions,  the  Courts  of 
the  Franchises,  and  the  Welsh  Courts.  I  have  next  given 
the  history  of  the  extraordinary  criminal  courts,  namely, 
Parliament  and  the  Court  of  the  Lord  High  Steward.  Lastly, 
I  have  given  the  history  of  the  criminal  jurisdiction  of  the 
Privy  Council. 

From  the  Courts  I  pass  to  the  procedure  followed  in  them, 
describing  in  successive  chapters,  first,  the  history  of  the 
procedure  for  the  apprehension,  examination,  and  committal 
or  bail  of  a  suspected  person ;  secondly,  the  history  of  the 
various  forms  of  accusation  and  trial,  especially  that  of  trial 
^J  jury  and  its  incidents ;  thirdly,  I  have  given  the  history 
of  the  development  of  trial  by  jury  from  the  reign  of  Mary 
to  that  of  George  III.,  when  the  present  •  system  may  be 
said  to  have  been  established ;  fourthly,  I  have  given  an 
account  of  our  existing  method  of  trial ;  fifthly,  I  have  given 
the  history  of  legal  punishments ;  sixthly,  I  have  given  an 
account  of  the  way  in  which  prosecutions  are  managed  and 
paid  for.  In  conclusion,  I  have  made  some  general  observa- 
tions on  our  system  of  criminal  procedure  viewed  as  a  whole, 
and  in  particular  I  have  given  some  account  of  the  part  of 
the  Draft  Code  of  1879  which  relates  to  procedure,  and  of 
the  changes  proposed  by  it  in  the  existing  law.  I  have  also 
made  a  comparison  between  our  own  system  and  that  of  the 
Code  d' Instruction  Criminelle  which  prevails  in  France. 

The  second  volume  begins  with  a  subject  which  has  been 

little  considered,  and  which  is  intermediate  between  criminal 

procedure   and   the    substantive  criminal   law,  namely,  the 

limits  of  the  criminal  law  in  respect  of  time,  place,  and  person. 

I  next  proceed  to  treat  of  the  substantive  criminal   law, 


8 


SCHEME   OF  THIS  WORK. 


Chap.  I.  including,  first,  the  theory  of  criminal  responsibility,  and  the 
exceptions  to  the  general  rule  that  men  are  responsible  for 
their  actions;  secondly,  the  leadiag  points  in  the  general 
history  of  the  law  of  crimes,  considered  as  a  whole; 
thirdly,  the  history  of  the  principal  classes  of  offences  into 
which  the  criminal  law  may  be  divided. 

These  topics  comprise  all  that  need  be  said  on  the  criminal 
law  of  England  taken  by  itself,  but  the  law  of  England  re- 
sembles that  of  Rome  in  many  ways,  and  perhaps  in  nothing 
so  much  as  in  the  fact  that  it  prevails  in  a  great  number  of 
countries  other  than  that  of  its  origin,  and  this  is  perhaps 
more  strikingly  true  of  the  criminal  law  than  of  any  of  its 
other  departments.  I  have  accordingly  added  to  my  account 
of  the  criminal  law  of  England  an  account  of  the  system 
adapted  from  it  established  in  India,  and  some  notices  of 
other  systems  founded  upon  it. 

The  work  concludes  with  detailed  accounts  of  several  trials, 
chosen  as  fair  specimens  of  the  practical  results  of  English 
and  French  procedure. 

As  to  the  order  in  which  some  of  these  matters  are  discussed, 
I  may  observe  that  in  a  systematic  exposition  of  an  existing 
body  of  law  it  is  natural  to  state  first  the  substantive  law,  and 
then  the  law  as  to  procedure  by  which  it  is  applied  to  par- 
ticular cases ;  but  in  treating  the  subject  historically  it 
seems  more  proper  to  begin  with  an  account  of  Courts  and 
other  Officers  of  Justice,  as  the  substantive  law  is  to  a  great 
extent,  perhaps  mainly,  developed  by  their  decisions  and  by 
their  tacit  adoption  of  rules  and  principles  before  they  are 
reduced  to  an  express  written  form. 


EOMAN   CRIMINAL  LAW. 


CHAPTER  II. 

ROMAN  CRIMINAL  LAW. 

The  oldest  part  of  the  Roman  Criminal  Law  was  contained  Chap.  II. 
in  the  twelve  tables.  The  twelve  tables  have  been  recon- 
structed  by  various  authors,  of  course  more  or  less  con- 
jecturally,  from  the  remaining  fragments  of  them.  The 
following  is  M.  Ortolan's  ^  reproduction  of  what  he  numbers 
as  the  eighth  table  " de  delidis"  : — 

1.  Libels  and  insulting  songs  to  be  punished  by  death. 

2.  Breaking  a  limb,  unless  settled  for,  to  be  punished  by 
retaliation. 

3.  Breaking  the  tooth  or  bone  of  a  free  man,  300  asses ;  of 
a  slave,  15  asses. 

4.  For  insulting  another,  25  asses. 

5.  For  ^  damage  to  property  caused  unjustly  ....  If  it  is 
accidental,  it  must  be  repaired. 

6.  For  damage  caused  by  a  quadruped,  repair  the  damage 
or  give  up  the  animal. 

7.  An  action  lies  against  a  man  for  pasturing  his  flock  in 
the  field  of  another. 

8.  ® Whoever  injures  crops  by  enchantments  or  conjures 
them  from  one  field  into  another  ".  .  .  .  (punishment  un- 
known). 

9.  Whoever  by  night  furtively  cuts  or  causes  to  be  grazed 
crops  raised   by  ploughing,   shall  be  devoted  to  Ceres  and 

1  Ortolan,  Explication  Historique  des  InstUuts,  i.  114-118.  The  references 
to  Pothier  are  to  Pothier's  Fandectce  Justinianece.  4  vols.  Paris,  1818.  This 
work  contains  all  the  texts  of  the  Roman  Law,  arranged  by  Pothier  in  what 
he  regards  as  their  natural  order.     It  is  extremely  useful. 

2  The  fragment  here  is  "Rupitias  .  .  .  Sarcito."  ^  Pothier,  i.  cxx. 


ICl  LAWS   OF  THE  TWELVE   TABLES. 

Chap.  II.  ^put  to  death  if  he  is  an  adult,  or  if  he  is  under  the  age  of 
puberty  shall  be  flogged  at  the  discretion  of  the  prjEtor  and 
made  to  pay  double  value  as  damages. 

10.  Whoever  burns  a  house  or  a  stack  of  corn  near  a  house 
knowingly  and  maliciously  {dolo)  shall  be  bound,  beaten,  and 
burnt.  If  by  accident,  he  must  pay  damages.  If  he  is  too 
poor  he  must  be  ^slightly  flogged. 

11.  A  man  who  wrongfully  cuts  another's  trees  must  pay 
twenty-five  asses  for  each  tree. 

12.  If  a  man  is  killed  whilst  committing  theft  by  night  he 
is  lawfully  killed. 

13.  If  a  thief  is  taken  by  day  he  may  not  be  killed  unless 
he  resists  with  a  weapon. 

14.  A  thief  taken  in  the  fact  {fur  manifestus)  must  be 
beaten  with  rods,  and  adjudged  (as  a  slave)  to  the  person 
robbed.  If  he  is  a  slave  he  must  be  beaten  with  rods  and 
thrown  from  the  Tarpeian  rock.  Youths  are  only  to  be 
beaten  with  rods  at  the  discretion  of  the  magistrate,  and 
condemned  to  repair  the  damage. 

15.  A  thief  ^discovered  by  plate  and  girdle  is  to  be  deemed 
to  be  taken  in  the  fact. 

A  thief  discovered  in  possession  of  the  stolen  property 
(not  by  plate  and  girdle),  and  a  thief  who  hides  the  stolen 
property  in  the  house  of  a  third  person  must  restore  three 
times  the  value  of  the  property. 

16.  When  an  action  is  brought  for  a  theft  not  manifest, 
the  thief  must  pay  twice  the  value  of  the  money  stolen. 

17.  Stolen  property  cannot  be  acquired  by  usucaption. 

18.  *  The  interest  of  money  is  8  J-  per  cent,  per  annum.  A 
usurer  who  lends  at  a  higher  rate  forfeits  fourfold. 

19.  Breach  of  trust  with  a  deposit  is  punished  by  double 
damages. 

20.  A  guardian  who  appropriates  the  property  of  his  ward 
forfeits  double  the  amount. 

1  Pothier  (i.  oxxi.)  says  by  hanging.  2  ig^ijjs  castigator. 

5  "Lance  Uciogue  amceptum" — a  solemn  search  made  with  certain  sym- 
holical  solemnities. 

*  "  Si  quia  unciario  foenore  amplius  fcenerassit  quadruplione  luito. "  Unciarium 
fcenus  is  1  per  cent,  per  aunnm  according  to  Pothier,  8^  according  to  Ortolan. 
See  also  an  account  of  the  controvei'sy  as  to  the  meaning  of  the  phrase  in  the 
Dictionary,  of  Antiquities,  art.  "Fo3nUs." 


^ 


EOIMAN   CRIMINAL  COURTS.  II 

21.  A  patron,  who  cheats  his  client  is  devoted  to  the  gods   Chap.  II. 
^(and  may  be  killed  by  any  one).  

22.  A  person  who,  having  been  a  ^  witness  in  any  business 
or  contract,  afterwards  refuses  to  give  his  evidence,  becomes 
infamous  and  incapable  of  making  a  will. 

23.  Whoever  gives  false  evidence  must  be  thrown  from  the 
Tarpeian  rock. 

24.  Whoever  knowingly  and  maliciously  kills  a  free  man 
must  be  put  to  death.  ^Let  him  who  uses  wicked  enchant- 
ments, or  makes  or  gives  poisons,  be  deemed  a  parricide. 

25.  *If  a  man  kills  his  parent,  veil  his  head,  sew  him  up  in 
a  sack,  and  throw  him  into  the  river. 

26.  No  one  is  to  make  disturbances  at  night  in  the  city 
under  pain  of  death. 

The  excessive  curtness  of  these  provisions  implies  the  ex- 
istence of  an  all  but  unlimited  discretion  in  those  who  had 
to  administer  the  law.  We  know,  indeed,  from  other  sources, 
that  in  ancient  Rome  the  courts  and  magistrates  practically 
made  their  own  laws  to  a  great  extent. 

The  laws  of  the  Twelve  Tables  were  of  less  importance 
in  the  history  of  the  development  of  Roman  law  than  the 
institutions  by  which  they  were  carried  into  execution. 

Criminal  jurisdiction  was  originally  in  the  hands  of  the 
Comitia  Centuriata,  or  Tributa,  and  in  some  cases  in  those 
of  the  Senate.  ^The  Comitia  Centuriata  could  sentence  to 
death  ;  the  Comitia  Tributa  to  exile.  The  Senate  had  an  ill- 
defined  jurisdiction  which  did  not  usually  extend  to  capital 
cases.  In  cases  of  importance  the  Comitia  and  the  Senate 
exercised  their  powers  directly ;  btit  in  other  matters  they 
delegated  their  powers  to  quaestors  (inquirers,  commissioners), 
who  were  appointed  at  first  for  particular  cases,  and  after- 
wards for  particular  classes  of  cases.  ^  In  very  early  times 
there  are  traces  of  standing  queestores  parricidii.  In  later, 
though  still  in  early  times,  ''we  hear  of  a  qusestio  de  con- 
jurationibus,  a  qusestio  de  veneficiis,  a  qusestio  de  homicidiis 
established  to  deal  with  particular  offences  which  happened 
to  be  common  at  a  particular  period.     This  led  in  time  to  the 

1  Pothier,  i.  cxxvii.  ^  Libripens.  '  Pothier,  i.  cxxix. 

*  lb.  cxxxi.        ■      =  Ortolan,  i.  216.  "  Ih.  182-3.  '^  lb.  217. 


12  PUBLICA   JUDIGIA. 

Chap.  II.  establishment  of  stauding  commissions  (quEestiones  perpetuee), 
for  the  purpose  of  dealing  with  particular  classes  of  offences. 

Each  of  them  was  estabUshed  by  a  special  law,  and  con- 
sisted of  a  praetor  chosen  annually,  assisted  by  a  sort  of  jury, 
consisting  sometimes  of  as  many  as  100  judices,  who  were 
summoned  for  each  particular  case. 

These  courts,  the  Koman  legislative  assemblies,  and  after- 
wards the  emperors,  produced,  in  the  course  of  centuries,  a 
body  of  law,  the  comments  upon  or  fragments  of  which  fill 
the  47th  and  48th  books  of  the  Digest,  and  the  9th  book  of 
the  Theodosian  Code.  From  these  authorities  we  can  acquire 
a  knowledge  of  the  Roman  law  relating  to  the  definition 
of  crimes  and  also  of  the  procedure  for  their  punishment. 

The  Roman  lawyers  in  the  days  of  Justinian  divided  crimes 
into  three  classes,  according  to  the  manner  in  which  they  were 
prosecuted,  namely,  Publica  Judicia,  Extraordinaria  Crimina, , 
and  Privata  Delicta.     These  I  shall  notice  in  their  order. 

I.   PUBLICA  JUDICIA. 

The  Publica  Judicia  were  the  representatives  of  the  old 
"  quaestiones  perpetuse."  They  related  to  crimes  which 
were  specifically  forbidden  by  particular  laws  under  defined 
penalties,  capital  (death  or  exile)  or  not. 

Extraordinaria  Crimina  were  offences  for  which  no  special 
quaestio,  and  no  specific  punishment,  were  provided.  The 
punishment  was  (within  limits)  at  the  discretion  of  the 
judge,  and  the  injured  party  might  prosecute,  though  he 
was  considered  in  doing  so  to  protect  rather  the  public 
interest  than  his  own. 

Priyata  Delicta  were  offences  for  which  a  special  action 
was  set  apart  involving  a  definite  result  for  the  injured  party, 
such,  e.g.,  as  the  actio  furti  or  actio  injuriarum. 

The  classification  is  a  little  like  a  classification  of  English 
crimes,  as  being  either  (1)  Treason  or  felony ;  (2)  Misdemea- 
nours at  common  law  ;  or  (3)  Torts ;  and  there  is  something 
of  a  resemblance  between  the  way  in  which,  in  the  course  of 
ages,  the  Publica  Judicia  and  the  Extraordinaria  Crimina 
came  to  be  formed  into  a  single  class  of  offences,  as  to  all  of 


CRIMES   TRIED  AS  PTJBLICA  JUDICIA.  13 

which  the  punishment  was  more  or  less  discretionary,  and  the  Chap.  11. 
gradual  legislative  removal  in  our  own  country  of  nearly  every 
substantial  distinction  between  felony  and  misdemeanour. 

The  crimes  included  under  the  head  of  Pubhca  Judicia 
were  those  which  were  forbidden  by  the  following  laws : — 
^Lex  Julia  Majestatis,  ^Lex  Julia  de  Adulteriis,  ^Lex  JuUa 
de  Vi  Publica  et  *Privata,  ^  Lex  Cornelia  de  Sicariis  et  Vene- 
ficiis,  ®Lex  Pompeia  de  Parricidis,  ^Lex  Cornelia  de  Falsis, 
^Lex  Julia  Repetundarum,  ^Lex  Julia  de  Annona,  ^"Lex 
Julia  Peculatus  et  de  Sacrilegiis  et  de  Residuis,  ^^Lex  Julia 
Ambitus,  ^^Lex  Fabia  de  Plagiariis. 

The  text  of  these  laws  has  not  in  any  instance  been  pre- 
served, though  the  style  of  the  comments  made  upon  them 
by  the  different  jurists  quoted  in  the  Digest  looks  as  if  they 
had  given  in  several  instances  the  very  words  of  the  law. 
In  the  main,  however,  the  Digest  consists  of  observations, 
and  of  notes  of  decisions  upon  them;  and  in  other  clas- 
sical authors  there  are  passages  which  enable  us  to  form 
some  sort  of  estimate,  or  at  least  reasonable  conjecture,  as 
to  the  position  which  they  held  in  the  history  of  Roman 
law.  They  seem  to  have  been  not  altogether  unlike  our 
modern  Consolidation  Acts,  and  their  very  words  seem  to 
have  been  as  carefully  noted  and  insisted  upon  as  the  word- 
ing of  our  own  acts  of  Parliament.  I  should  think  it  very 
doubtful  whether  they  defined  the  fundamental  terms  which 
occur  in  them,  any  more  than  the  Consolidation  Acts  of 
1861  define  murder  and  theft. 

15  Thus,  for  instance,  the  Lex  Julia  Majestatis  had  been  pre- 
ceded by  a  provision  in  the  Twelve  Tables,  the  Lex  Gabinia, 
the  Lex  Apuleia,  the  Lex  Varia,  and  the  Lex  Cornelia,  just 
as  the  Offences  Against  the  Person  Act  was  preceded  by  the 
statute  of  Stabbing,  the  Coventry  Act,  the  Waltham  Black 
Act,  the  Consolidation  Act  of  George  IV.,  and  many  others. 

Roman  Criminal  Law  does  not  appear  to  have  been  re- 
duced to  any  very  definite  form  by  those  who  are  treated  as 
authorities  by  the  compilers  of  the  Digest.     The  titles  follow 


^  Dig.  xlviii.,  Tit.  4. 

==  lb.  5. 

3  lb.  6. 

"  lb.  7. 

"  Ih.  8. 

"  lb.  9. 

7  lb.  10. 

8  lb.  11, 

«  lb.  12. 

1°  lb.  13. 

"  lb.  14. 

12  lb.  15, 

13  Pothier,  iv.  407—8. 

14  L^SA  MAJESTAS. 

Chap.  II.  each  other  in  no  particular  order,  and  the  contents  of  the 
titles  are  arranged  as  far  as  can  be  judged  at  random.  I 
notice  the  offences  in  the  order  in  which  they  stand. 

The  Lex  Julia  Majestatis. — ^''Majestas,"  says  Cicero, 
"  residet  proprie  in  populo  Romano.  Hanc  minuere  dicitur, 
"  qui  de  dignitate  aut  amplitudine  aut  potestate  Populi 
"  Romani,  aut  eorum  quibus  populus  potestatem  dederit 
"  aliquid  derogat."  The  offence  of  Majestas  was  divided 
into  "perduellio"  and  "Isesa  majestas."  Perduellio  in- 
cluded offences  closely  resembling  treason  by  levying  war 
or  assisting  the  Queen's  enemies,  and  inciting  to  mutiny. 
It  also  included  the  offence  of  governors  refusing  to  give  up 
their  provinces,  or  the  command  of  their  forces,  and  some 
other  matters  which  with  us  would  be  dealt  with  under  the 
Mutiny  Act. 

Lsesa  Majestas  included  every  kind  of  act  by  which  pubhc 
authority  was  resisted,  or  usurped  by  a  private  person,  or  by 
which  any  sort  of  disrespect  was  shown  to  the  Emperor. 
The  interpretation  put  upon  the  law  on  this  subject  varied 
according  to  the  temper  of  the  different  emperors.  It 
reached  at  times  a  depth  of  servility  of  which  it  is  difficult 
in  our  days  to  form  an  estimate.  For  instance,  ^  "  Non  con- 
"  trahit  crimen  majestatis  qui  statuas  Caesaris  vetustate  cor- 
"  ruptas  reficit,"  which  implies  that  some  one  thought  other- 
wise. On  the  other  hand,  they  sometimes  rose  to  a  theatrical 
magnanimity.  ^ "  Si  quis,"  wrote  Theodosius,  "  modestise 
"  nescius  et  pudoris  ignarus,  improbo  petulantique  maledicto 
"  nomina  nostra  crediderit  lacessenda  ;  ac  temulentia  turbu- 
"  lentus,  obtrectator  temporum  nostrorum  fuerit ;  eum  pcenae 
"nolumus  subjugari  neque  durum  aliquid  nee  asperum 
"  volumus  sustinere ;  quoniam  si  id  ex  levitate  processerit 
"  contemnendum  est,  si  ex  insania  miseratione  dignissimum, 
"  si  ab  injuria  remittendum."  The  case  that  the  emperor 
might  deserve  what  was  said  of  him  does  not  suggest  itself. 

By  the  law  of  the  Twelve  Tables  Majestas  was  punished  by 
flogging  to  death.  Under  the  republic  it  was  punished  by 
exile.     Afterwards  by  death. 

Lex  Julia  de  Adulteriis.— The  Lex  Julia  de  Adulteriis 

1  Pothier,  iv.  408.  ^  Dig_  xlyjij_  4^  g_  3  q^^^  j^_  y^ 


JULIA  DE  ADtJLTERIIS.  15 

appears  to  have  been  directed  against  sexual  crimes  of  Chap.  II. 
every  sort.  It  punished  adultery  (on  the  part  of  the  wife 
but  not  on  the  part  of  the  husband),  fornication  (stuprum) 
in  certain  cases,  incest,  polygamy,  unnatural  offences,  and 
pimping.  It  is  unnecessary  to  say  much  on  this  subject, 
but  one  or  two  points  may  be  mentioned  on  account  of  a 
possible  connection  between  them  and  part  of  our  own  law. 
A  father  had  a  right  to  kill  both  his  married  daughter  and 
her  accomplice  if  she  was  taken  in  adultery  either  in  his 
house  or  in  her  husband's.  The  husband  had  no  such  right 
as  to  his  wife  in  any  case,  and  no  such  right  as  to  her 
accomplice  unless  he  was  ■'^an  infamous  person  or  a  slave, 
taken  not  in  his  father-in-law's  house,  but  in  his  own.  If, 
however,  the  husband  did  kill  the  adulterer  irregularly  he 
was  less  severely  punished  than  in  other  cases  of  homicide. 
'^"  Si  legis  auctoritate  cessante,  inconsulto  dolore  adulterum 
"  interemit  quamvis  homicidium  perpetratum  sit,  tamen, 
"  quia  et  nox  et  dolor  Justus  factum  ejus  relevant  potest 
"  in  exilium  dari."  By  one  of  the  Novels  (cxvii.)  a  man 
.might  kill  as  an  adulterer  any  person  whom  he  found  in 
his  wife's  company  either  in  that  person's  house  or  in  the 
husband's  house,  or  in  an  inn  or  "in  suburbanis,"  after 
being  thrice  warned  in  writing  and  in  the  presence  of  three 
witnesses  not  to  see  her. 

The  father's  right  to  kill  (jus  occidendi)  was  rather 
wider,  but  was  narrowly  limited.  "Permittitur  patri  tarn 
"  adoptive  quum  naturali,  adulterum  cum  filia  cujuscumque 
"dignitatis,  domi  suae,  vel  generi  sui  deprehensum  sua 
"manu  occidere."  If  the  father  was  not  himself  emanci- 
pated he  had  not  the  right  in  question.  It  was  to  be 
exercised  in  respect  of  an  offence  committed  in  his  own 
house  or  in   that  of  his    son-in-law    only.     ^The    offenders 

^  Pothier,  iv.  427.  "  lufames  et  eos  qui  corpore  quaestum  faciunt."  They 
are  elsewhere  enumerated  pimps,  showmen,  dancers,  and  singers,  persons 
convicted  by  a  publicum  judicium,  the  freedman  of  the  husband,  the  wife, 
the  father,  mother,  son,  or  daughter. 

2  Pothier,  iv.  428. 

3  The  text  is  very  curious.  "  Quod  ait  lex  Inoontinenti  tiliam  oooidat  ; 
"  sio  erit  aocipiendum,  ne  occiso  hodie  adultero  reservet,  et  post  dies  filiam 
"  ocoidat ;  vel  contra.  Debet  enim  prope  uno  ictu  et  uno_  impetu  utrumque 
"  oecidere  tequali  ira  adversus  utrumque  sumpta.  Quod  si  non  affectavit  sed 
"  dum  adulterum  occidit  profugit  filia,  et  interpositis  horis  apprehensa  est  a 
* '  patre  qui  persequebatur  Incontinenti  videbitur  occidisse. "  Dig.  xlviii.  5  23,4. 


1 6  VIS  PUBLICA  ET  PEIVATA. 

Chap.  II.  must  be  taken  in  the  fact.  It  must  be  done  at  once.  It 
was  immaterial  which  was  killed  first,  but  if  the  adulterer 
only  was  killed  and  the  daughter  spared,  the  father  was  guilty 
of  murder  under  the  Lex  Cornelia.  If,  however,  the  adul- 
terer was  killed  and  the  adulteress  having  been  wounded 
with  intent  to  kill  recovered,  "verbis  quidem  legis  non 
"liberatur"  (pater)  "sed  Divus  Marcus  et  Commodus  rescrip- 
"  serunt  impunitatem  ei  concedi."  ^  The  reason  for  the  greater 
latitude  given  to  the  father  is  thus  stated  :  "Plerumque  pietas 
"paterni  nominis  consilium  pro  liberis  capit.  Cseterum  mariti 
"  calor  et  impetus  facile  decernentis  fuit  refrisnandus."  This 
is  a  reason  against  killing  at  all.  It  hardly  seems  i^robable 
that  any  legislator  should  have  devised  such  a  law  entirely 
on  its  merits,  and  it  probably  requires  some  historical  explana- 
tion. Perhaps  it  is  a  relic  of  the  ancient  law  which  regarded 
the  wife  as  her  husband's  daughter,  and  which  gave  every 
father  power  of  life  and  death  over  his  children.  This  power 
would,  while  it  was  in  force,  give  the  husband  the  right  to 
kill  the  adulterous  wife,  but  he  would  do  so  in,  his  paternal 
character,  and  thus  in  later  times  the  right  would  be  restricted 
to  the  natural  father.  I  mention  this  law  because  of  its 
analogy  to  our  own  law  as  to  one  species  of  provocation 
which  reduces  murder  to  manslaughter.  ^The  punishment  of 
adultery  was  "relegation''  to  an  island,  the  woman  losing 
half  her  dower  and  a  third  of  her  goods,  and  the  man  halt 
his  goods. 

Lex  Julia  de  Vi  Publica  et  Peivata. — The  Lex  Julia 
de  Vi  Publica  consolidated  several  earlier  laws  which  punished 
acts  of  violence  not  falling  within  the  law  against  Majestas 
on  the  one  hand  or  the  law  "  De  Sicariis  et  Veneficiis  "  on 
the  other.  There  is  no  trace  of  any  specific  definition  of 
these  vague  expressions  having  been  contained  in  the  law, 
and  it  does  not  appear  whether  there  was  only  one  law  on 
the  subject  divided  into  two  heads,  or  two  distinct  laws; 
but  the  different  texts  illustrating  "Vis  Publica"  suggest 
some  such  definition  as — Illegal  violence  not  otherwise 
punishable,  in  which  the  public  are  interested  either  by 
reason  of  the  character  of  the  offender  or  by  reason  of  the 
1  Dig.  xlviii.  5,  22,  i.  2  Pothier,  iv.'  425. 


VIS  PUBLICA  ET  PRIVATA.  17 

character  of  the  person  injured,  or  by  reason  of  the  purpose  Chap.  II. 
for  which  it  is  employed. 

The  following  were  cases  of  the  "offence : — 

A  public   officer  inflicting  death   or   any  other  corporal 
punishment  on  a  Eoman  citizen  pending  an  appeal. 

Assaults  upon  or  insults  to  ambassadors. 

Levying  new  taxes  without  authority. 

The  acts  which,  under  our  mediaeval  law  would  have  been 
described  as  maintenance  or  would  have  fallen  under  tlie 
statute's  against  badges  and  hveries  were  "  Vis  Publica." 
Thus,  i"qui  dolo  malo  fecerit  quominus  judicia  tuto  exer- 
"  ceantur,  aut  judices  ut  oportet  judicent."  ^"Qui  turbae 
"  seditionisve  faciendse  consilium  inierint,  servosve  aut  liberos 
"  homines  in  armis  habuerit,"  and  the  extent  of  the  rule  is 
proved  by  the  exceptions  made  to  it.  "  Exceptus  est  qui  propter 
"  venationem  habent  homines  qui  cum  bestiis  pugnent  minis- 
"  tros  enim  ad  ea  habere  conceditur."  Vis  Publica  also  included 
what  we  should  call  forcible  entry  by  armed  men.  ^ "  Qui  homi- 
"  nibus  armatis  possessorem  domo  agrove  suo  aut  navi  sua  de- 
"  jecerit,  expugnaverit  concursu."  It  also  included  many  kinds 
of  riots.  *  "  Qui  ccetu  .  .  .  incendium  fecerit  .  .  .  quive  fecerit 
"quominus  sepeliatur" — ^"qui  convocatis  hominibus  vim 
"  fecerit  quo  quis  verberetur  et  pulsetur  neque  homo  occisus." 

Rape  was  punished  as  Vis  Publica,  and  not  under  the 
Lex  Julia  de  Adulteriis. 

Vis  Privata  was  a  milder  form  of  Vis  Publica,  indeed  it  is 
doubtful  whether  one  at  least  of  the  texts  quoted  above  does 
not  refer  to  it.  The  characteristic  feature  of  Vis  Privata  seems 
to  have  been  taking  the  law  into  one's  own  hands.  Marcus 
Antoninus  in  an  imperial  rescript  says : — *  "  Tu  vim  putas 
"  esse  solum  si  homines  vulnerentur  ?  vis  est  et  tunc  quoties 
"  quis  id  quod  deberi  sibi  putat,  non  per  judicem  reposcit." 

The  punishment  of  Vis  Publica  was  exile,  and  in  some  cases 
death ;  the  punishment  of  Vis  Privata  confiscation  of  the  third 
of  the  offender's  property  and  loss  of  certain  civil  rights. 

The  Lex  Cornelia  de  Sicariis  et  Veneficiis. — The 
Lex  Cornelia  de  Sicariis  et  Veneficiis  was  passed  by  Sylla 

1  Dig.  xlviii.  6,  10.  ^  Pothier,  iv.  436.  ^  Dig.  xlviii,  6, 

*  }h.  6,  5.  =  Jb.  6,  10.  «  lb.  7,  7. 

A'^OL.   I.  C 


1 8  HOMICIDE. 

Chap.  II.  and  had  thus  been  in  force  about  600  years  when  the 
Digest  was  compiled.  It  was  extended  to  incendiaries,  and  also 
in  the  time  of  Diocletian  to  astrologers  and  similar  impostors. 

The  main  subject  of  this  law  is  homicide.  The  great 
extension  given  to  it  by  commentators,  and  the  want  of 
any  sort  of  systematic  arrangement  of  tlie  texts  of  the 
Digest,  as  well  as  the  title  of  the  law  which  might  be 
literally  translated,  ^''Stabbers  and  poisoners,"  make  it 
probable  that  the  original  law  itself  was  very  curt  and 
general.  It  seems  never  to  have  been  elaborated  with  any 
system,  but  the  principal  points  which  long  afterwards  pre- 
sented themselves  to  English  lawyers  presented  themselves 
to  the  various  jurists  and  emperors,  and  received  at  their 
hands  solutions  which,  however  fragmentary  and  hesitating, 
have  a  resemblance  to  those  of  the  English  courts. 

As  to  the  persons  to  whom  the  law  extended,  it  seems  to 
have  applied  in  the  time  of  the  Antonines  to  slaves  as  well  as 
freemen.  ^ "  Qui  hominem  occiderit  punitur,  non  habita 
"  differentia  cujus  conditionis  hominem  interemit."  The 
moment  at  which  a  child  became  a  human  being  for  this 
purpose  seems  to  have  been  a  moot  point. 

The  curious  points  which  English  lawyers  have  considered 
with  so  much  care  as  to  the  nature  of  the  connection  necessary 
to  constitute  homicide  between  the  act  causing  death  and 
the  death  caused  by  it  do  not  seem  to  have  occurred  to  the 
Eoman  lawyers,  but  there  are  various  passages  in  the  Digest 
which  state  the  principal  cases  in  which  the  intentional  in- 
fliction of  death  was  considered  justifiable.  They  are  all 
reducible  to  the  cases  of  self-defence  and  the  arrest  or 
punishment  of  criminals. 

The  Roman  doctrine  as  to  the  degrees  of  homicide  is 
shortly  summed  up  in  a  rescript  of  Hadrian's.  The  rule  was 
that  the  degree  of  guilt  depended  on  the  offender's  intention 
as  displayed  by  the  circumstances  of  his  offence.  ^  "  Eum 
"  qui  hominem  occidit,  si  non  occidendi  animo  hoc  admisit 
"  absolvi  posse.     Et  qui  hominem  non  occidit  sed  vulneravit 

^  "  Sicarii  proprie  sunt  latrones  cxiltellis  utentes  recurvis  ad  similitudinem 
"  eorum  quos  Romani  sicas  dixere  qui  ita  breres  erant  ut  occultari  ainu  Testis 
"  possent." — Pothier,  iv.  4S9. 

"  Dig.  xlviii.  8,  1,  2.  3  Ih.  6,  1,  3. 


PAERICIDE.  1 9 

"  ut  occidat  pro  homicida  damnandumi     Et  ex  re  constitu-  Chap.  II. 

"  endum  hoc.     Nam  si  gladium  strixerit  et  in  eo  percusserit 

"  indubitate  occidendi  animo  id  eum  admississe,  sed  si  clavi 

"  percussit    aut  cuccuma  "    (an  iron-bound  stick)  "  in  rixa, 

"  quamvis    ferro    percusserit    tamen    non   occidendi  animo 

"  leniendam   poenam    ejus  qui    in    rixa   casu   magis    qiiam 

"  voluntate  homicidium  admisit." 

Killing  by  negligence  was  not  within  the  Lex  Cornelia, 
though  it  might  subject  the  offender  to  an  "  extraordinarium 
"judicium."  The  only  form  of  provocation  which  seems  to 
have  been  recognised  as  affording  grounds  for  diminishing 
the  punishment  was  the  case  of  adultery  already  referred  to. 

'■  Special  provision  was  made  for  the  offence  of  poisoning,  as 
to  which  the  law  was  extremely  severe,  applying  to  every 
one  "  qui  venenum  necandi  hominis  causa  fecerit,  vel  ven- 
"  diderit."  Poisoning  is  naturally  an  object  of  excessive 
dread  in  an  age  in  which  physical  science  is  at  a  low  ebb,  and 
when  belief  in  witchcraft  and  other  "  maleficia "  prevails. 
The  famous  case  of  the  cook  who  was  boiled  to  death  by 
Act  of  Parliament  in  Henry  VIII.'s  time,  and  Sir  E.  Coke's 
account  of  the  "  Great  Oyer  of  Poisoning,''  are  parallel 
instances.  ^  In  the  French  Code  Penal  poisoning  is  dis- 
tinguished as  a  special  offence. 

Lex  Pompeia  de  Parricidiis. — Parricide  was  killing  any 
relation  nearer  than  or  in  the  degree  of  a  first  cousin. 

Parricide  as  well  as  poisoning  must  have  fallen  under  the 
Lex  Cornelia  d«  Sicariis,  but  the  distinction  is  not  without 
an  analogy  in  English  law.  It  may  be  compared  to  petty 
treason,  which  ceased  to  be  distinguished  from  murder  only 
in  1828,  by  the'operation  of  9  Geo.  4,  c.  31,  s.  52. 

Homicide  under  the  Kepublic  was  punished  by  confisca- 
tion of  goods  and  imprisonment  in  an  island ;  under  the 
Antonines  by  death.  ^ "  Nisi  honestiori  loco  positi  fuerint  ut 
"  poenam  legis  sustineant."  Common  people  were  thrown 
to  the  beasts.  There  was  no  special  punishment  for  poi- 
soners, or  apparently  for  parricides,  unless  the  person  killed 

1  Dig.  xlviii.  8,  3.  ,,.-,, 

"  Art.  aOl .  "  Est  qualifi^  empoisonnement  tout  attentat  k  la  vie  d  une  personne 
"  par  I'effet  de  substances  qui  peuvent  donner  la  mort  plus  ou  moins  prompte- 
"  meut,  de  quelque  manifere  que  ces  substances  aient  ete  employees  ou  admmis- 
"  trdes,  et  quelles  qu'en  aient  ete  les  suites."  ^  Dig.  xlviii.  8,  3,  5. 

c  ^ 


20  CORNELIA  DE  FALSIS. 

Chap.  II.  ^as  a  father  or  mother,  in  which  case  the  offender  was  burnt, 
that  punishment  having  been  substituted  for  the  ancient  one 
of  drowning  with  a  cock,  snake,  and  dog.  Burning  was  also 
the  punishment  of  incendiaries. 

Lex  Cornelia  de  Falsis. — The  Lex  Cornelia  De  Falsis 
was  divided  into  two  heads,  namely,  the  lex  testamentaria, 
the  main  subject  of  which  was  forging  and  suppressing 
wills,  and  nummaria,  the  main  subject  of  which  was  counter- 
feiting money.  ^Paulus's  statement  of  the  effect  of  the 
law,  seems  as  if  he  had  preserved  its  very  words,  "Qui 
"  testamentum  amoverit,  celaverit,  eripuerit,  deleverit,  inter- 
"  leverit,  subjecerit,  resignaverit,  quive  testamentum  falsum 
"  scripserit,  signaverit,  recitaverit  dolo  malo,  cujusve  dolo 
"  malo  id  factum  erit."  This  branch  of  the  law  was  after- 
wards extended  to  other  offences.  A  provision  was  made 
either  by  the  Emperor  Claudius,  or  by  a  decree  of  the 
senate  in  the  time  of  Tiberius,  subjecting  to  the  penalties 
of  the  Lex  Cornelia,  every  one  who  when  drawing  up  the 
will  or  codicil  of  another  inserted  in  his  own  hand  a 
legacy  to  himself,  or  (as  the  law  was  interpreted)  to  any 
person  under  his  power.  ^  Passages  in  the  code  seem  to  imply 
that  this  was  meant  as  a  precaution  against  fraud,  and  that 
even  the  testator's  order  was  no  excuse.  "  Senatus  consulto 
"  et  edicto  Divi  Claudii  prohibitum  est  eos  qui  ad  scribenda 
"  testamentaadhibenturg'Mamm's  dietante  testatorealiqaoderao- 
"  lumentum  ipsis  futurum  scribere.  Et  poena  legis  Comelioe 
"  facienti  irrogata  est,  cujus  veniam  deprecantibus  ob  ignoran- 
"  tiam  et  profitentibus  a  relicto  discedere,  amplissimus  ordo 
"  vel  divi  principes  veniam  raro  dederunt."  The  same  inference 
seems  to  foUow  from  texts  which  show  the  effect  of  a  special 
and  general  ratification  by  the  testator  in  particular  cases. 

The  Lex  Cornelia  Testamentaria  came  in  process  of  time 
to  be  extended  to  every  sort  of  instrument  other  than 
wills.      3  Ulpian    says    generally,    "  Poena    legis     Cornehse 

'  Dig.  xlviii.  10,  2.  Compare  the  language  of  24  &  25  Vic.  o.  98,  s.  2  : 
"Whoever,  with  intent  to  defraud"  (dolo  malo),  "shall  forge,  or  alter" 
Hnterlevtrit),  "or  shall  offer,  utter,  dispose  of,  or  put  off"  {> recitaverit), 
"knowing  the  same  to  be  forged  or  altered,  any  will,  testament,  codicil, 
"  or  testamentary  instrument."  The  24  &  25  Vic.  o.  96,  s.  29  makes  it  penal 
to  "cancel"  (deleverit),    "  obliterate,  or  conceal"  (reZaverft)  "any  will,"  &c. 

^  Cod.  ix.  23,  3,  and  compare  laws  4  6.  '  Dig.  xlviii.  10  9',  3. 


CORNELIA  NUMMARIA.  21 

"  irrogatur    ei  qui   quid   aliud  quam    in  testamento   sciens  Chap.  II. 
"  dolo  malo   falsum    signaverit    signarive   curaverit."     And 
Paulus  and   Marcian  say  the   same   as  to  all  who  falsify 
accounts,    registers,    contracts,    or    other    writings,    sealed 
or  not. 

A  man  might  indeed  commit  the  "  crimen  falsi"  in  a  ^genuine 
document  if  he  dated  it  falsely,  or  otherwise  made  it  appear 
to  be  what  it  was  not.  The  law  was  also  extended  to  giving 
and  suborning  false  evidence,  and  to  the  corruption  of  judges. 
Modestinus  extends  it  still  further.  He  says :  ^ "  De  impudentia 
"  ejus  qui  diversa  duobus  testimonia  prsebuit  cujus  ita  anceps 
"  fides  vacillat  quod  crimine  falsi  teneatur  nee  dubitandum 
"  est." 

The  law  indeed  applied  to  certain  fraudulent  contracts,  to 
the  fraudulent  assumption  of  a  false  name,  and  as  Paulus 
says,  by  a  constitution  of  Adrian  to  one  "who  sells  the 
"  same  thing  to  two  diiferent  people." 

The  punishment  of  "  falsum  "  under  the  Antonines  was, 
in  the  case  of  a  person  of  low  rank,  imprisonment  in  the 
mines,  in  the  case  of  a  person  of  higher  rank,  forfeiture  of 
goods,  and  relegation  to  an  island. 

The  Lex  Cornelia  Nummaria,  like  the  Lex  Testamentaria, 
is  referred  to  in  terms  which  resemble  those  of  the  parallel 
Enghsh  enactments.  ^ "  Qui  nummos  aureos  argenteos 
"  adulteraverit,  laverit,  conflaverit,  raserit,  corruperit  vitia- 
"  verit."  I  do  not  find  express  mention  in  the  Corpus  Juris 
of  the  offence  of  passing  bad  money,  but  a  characteristic 
provision  occurs  as  to  the  refusal  of  good  money.  It  was  put 
on  the  same  footing  as  coining  on  account  of  the  disrespect 
shown  to  the  image  and  superscription  of  the  prince.  The 
text  quoted  above  concludes,  "  vultuve  signatam  monetam 
"  prseter  adulterinam  reprobaverit."  Constantine  said : 
*  "  Omnes  solidi  in  quibus  nostri  vultus  ac  veneratio  una 
"  est,   uno    pretio    estimanda    sunt.     .     .     Neo   enim  qui 

1  This  is  also  the  law  of  England— see  E.  v.  Eitson,  L.E.  1  C.C.R.  200. 

2  Dig.  xlviii.  10,  27,  1. 

3  Pothier,  iv.  455.  Of.  24  &  25  Vic.  c.  99,  s.  4  :  "  Impair,  diminish,  or  lighten 
"  any  of  the  Queen's  gold  or  silver  coin  ;  "  and  s.  3  :  "  Wash,  case  over,  or 
"  colour  any  piece  of  gold  or  silver." 

*  Pothier,  iv.  456. 


2  2  JULIA  EEPETUNDARUM — ANNONA. 

Chap.  II.  "  majore  habitu  faciei  extenditur  majoris  est  pretii ;  aut  qui 
"  angustiore  expressione  concluditur  minoris  haberi  credendus 
"  est  quum  pondus  idem  existat." 

The  use  of  false  measures,  the  assumption  of  marks  of 
dignity,  and  changing  children,  were  regarded  as  species  of 
"  the  crimen  falsi,"  or  as  analogous  to  it. 

Lex  Julia  Eepetundaeum. — ^  The  Lex  Julia  Repetun- 
darum  punished  every  sort  of  official  extortion,  being  a  sort 
of  Consohdation  Act  replacing  five  earlier  enactments. 
The  law  provided  that  no  one  was  to  receive  anything 
whatever,  either  for  giving  or  for  withholding  any  judicial 
or  official  order.  "  Tenetur  qui,  quum  aliquam  potesta- 
"  tern  haberet,  pecuniam  ob  judicandum  discernendumve 
"  acceperit." 

The  Lex  Julia  is  also  supposed  to  have  c(mtained  pro- 
visions not  altogether  unlike  those  of  certain  Acts  of  Parlia- 
ment relating  to  British  officers  in  India.  By  the  rules  of 
the  Indian  Civil  Service  a  civilian  may  not  hold  land  in  his 
own  district,  and  by  Act  of  Parliament  it  is  unlawful  for  any 
one  whatever  to  make  any  present  to  him.  By  the  Lex 
Julia  Repetundarum,  ^  "  Quod  a  prasside  sui  procuratore  vel 
"  quolibet  alio  in  ea  provincia  in  qua  administrat,  Ucet 
"  per  suppositam  personam  comparatum  est,  infirmato  con- 
"  tractu  vindicatur,  et  sestimatio  ejus  fisco  infertur.  Nam 
"  et  navem  in  eadem  provincia  in  qua  quis  administrat 
"  aedificare  prohibetur." 

The  offence  of  "  repetundarum "  became  in  the  time  of 
the  Antonines  an  "  extraordinarium  crimen,"  instead  of  a 
"  publicum  judicium,"  except  indeed  in  cases  in  which  the 
order  corruptly  given  involved  consequences  of  extreme 
importance,  as,  for  instance,  when  a  judge  was  bribed  to  have 
a  man  put  to  death.  In  such  instances  the  punishment  was 
capital.     In  others  it  was  fourfold  damages. 

Lex  Julia  de  Annona.— » This  was  a  law  against  what 
was  formerly  called    forestalling   and  regrating  in  English 

'  Dig.  xlviii.  11,  3.  Marcian.  He  gives  elsowliere  a,  much  longer  enu- 
meration :  "Ne  quis  ob  judicem  arhita-umve  dandum  mutandum  juben- 
"  dumve  ut  judicet  ;  neve  ob  non  dandum  non  mutandum  non  jubendum 
"  ut  judicet,"  &c.  ;  and  see  Pothier,  iv.  457- 

=*  Pothior,  iv.  458.  s  Dig_  xlviii.  12. 


PECULATION — SACRILEGE — BALANCE.  23 

law — anticipating  and  so  raising  the   price   of  food   in  the  Chap.  II. 
market. 

Lex  Julia  Peculatus,  et  de  Sacrilegiis  et  de  Residuis. 
— These  three  offences  were  different  forms  of  the  offence 
of  public  dishonesty.  ^The  law  against  "peculators"  for- 
bad "ne  quis  ex  pecuni^  sacrS.,  religios^,  publicave  auferat, 
"  neve  intercipiat,  neve  in  rem  suam  vertat,  neve  faciat  quo 
"  quis  auferat,  intercipiat,  vel  in  rem  ^  suam  vertat,  nisi  cui 
"  utique  lege  licebit.  Neve  quis  in  aurum,  argentum,  ses 
"  publicum  quid  indat,  neve  immisceat,  neve  quo  quid  indatur 
"  immisceatur,  faciat  sciens  dolo  malo  quo  id  pejus  fiat." 
In  other  words  it  was  theft  of,  or  injury  to,  anything  which 
was  either  consecrated  to  the  gods,  or  was  public  property. 
The  following  illustrations  are  given  of  cases  of  peculation. 
Workmen  in  the  mint  coining  too  much  money  and  carrying 
off  the  surplus;  ^ carrying  off  title-deeds  to  state  lands,  and 
fraudulently  altering  them,  and  various  frauds  and  irregu- 
larities as  to  the  public  accounts. 

The  punishment  of  peculation  was  the  mines,  or  exile 
and  forfeiture  of  property,  according  to  the  rank  of  the 
offender. 

Sacrilege  was  the  stealing  of  something  at  once  public  and 
sacred,  but  as  appears  from  ^a  passage  in  Quintilian,  the 
definition  was  not  free  from  doubt.  Sacrilege  was  punished 
with'  death,  sometimes  by  burning,  often  by  throwing  to 
the  beasts.     Parts   of  the  temples  were  peculiarly  sacred. 

'  Qui  sacrarium  ingressus  interdiu  vel  noctu  sacrarium 
"  aliquid  inde  aufert  excsecator ;  qui  vero  extra  sacrarium 
"  e  templo  reliquo  aufert  verberatus  et  tonsus  exilio  mulc- 
"  tator,"  says  XJlpian,  which  seems  inconsistent  with  what 
he  had  said  before  as  to  capital  punishment. 

1  Dig.  xlviii.  13,  1. 

^  ' '  Qui  tabulam  seream  legis  formamve  agronim  aut  quid  aliud  continentem 
"  refixerit  vel  quid  inde  immutaverit." — Dig.  xlviii.  13,  8. 

^  "  Qui  privatam  pecuniam  de  templo  surripuit  sacrilegii  reus  est.  Culpa 
"  manifesta.  Qusestio  est  an  huie  crimini  nomeu  quod  est  in  lege  conveniat. 
"  Ergo  ambigitur  an  hoc  saorilegium  sit.  Aoousator  quia  de  templo  sit  surrepta 
"  pecunia  utitur  hoc  nomine.  Eeus  quia  privatam  surripuerit  negat  ease  sacrile- 
"  ginm  sed  furtum.  Actor  ergo  ita  finiet  sacrilegium  est  surripuere  aliquid  de 
"sacro.  Eeus  ita  finiet  sacrilegium  est  surripere.  aliquid  sacri." — Quintilian, 
Inst.  vii.  3. 

*  Pothier,  iv.  462. 


4 


24  EXTRAORDINABIA  CEIMINA. 

Chap.  II.  Theodosius  and  others  assimilated  heresy  to  sacrilege. 
They  put  on  the  same  footing,  doubting  the  decisions  of 
the  Emperor,  and  (very  strangely)  the  attempt  to  get  ap- 
pointed governor  of  the  province  in  which  a  man  was 
born. 

The  law  "De  Residuis"  appilied  to  those  who,  being  ac- 
countable to  the  public,  did  not  fully  account  for  what  they 
had  received. 

Lex  Julia  Ambitus. — ^The  Lex  Julia  Ambitus  seems 
to  have  consolidated  the  provisions  of  ten  previous  laws.  It 
was  passed  by  Augustus.  It  was  probably  a  sort  of  Corrupt 
Practices  Act,  but  when  popular  election  was  replaced  by 
the  appointment  of  officers  by  the  Emperor,  the  law  became 
obsolete. 

Lex  Fabia  de  Plagiariis. — ^  Plagium  was  the  crime  of 
mansteahng — selling  a  free  man  as  a  slave.  The  punishment 
was  at  first  fine,  but  afterwards  the  mines  or  death. 

II.   EXTEAORDINARIA  CRIMINA. 

The  second  class  into  which  crimes  were  divided  were 
"  extraordinaria  crimina,"  in  translating  which  expression  it 
must  be  remembered  that  "  crimen "  means  accusation  and 
not  offence,  and  that  "  extraordinarium  "  refers  to  the  nature 
of  the  procedure,  and  not  to  the  quality  of  the  offence.  The 
expression  indicates,  in  fact,  a  less  formal  mode  of  procedure 
than  had  originally  been  appropriated  to  the  Publica  Judicia, 
though,  as  I  shall  have  occasion  to  explain  more  fully  under 
the  head  of  Procedure,  the  distinction  between  the  two 
classes  was  of  hardly  any  practical  importance  when  the 
Pandects  were  compiled.  The  "extraordinaria  crimina" 
noticed  in  the  47th  book  of  the  Digest  are  as  follows : — 

Family  Offences. — ^  "  Sollicitatores  alienarum  nupti- 
"  arum,  itemque  matrimoniorum  interpellatores  " — persons 
v/ho  attempted  to  seduce  or  procure  the  divorce  of  a  married 
woman.     Also  those  who  corrupted  youths  of  either  sex. 

1  Dig.  xlviii.  14 ;  PotHsr,  iv.  463.  2  ^_  15, 

'  lb.  xlvii.  11,  1.     These  come  under  the  general  head  of  "extraordinaria 
crimina  "  in  the  Digest. 


NEW  RELIGIONS  AND   OTHER   OFFENCES.  ^5 

Introducing  New  Eeligions.— i"  Si  quis  aliquid  fecerit  Chap,  ii. 
"  quo  leves  hominum  animi  superstitione  numinis  terre- 
"  rentur."  "  Qui  novas,  et  usui  vel  rationi  incognitas 
"  religiones  inducunt  ex  quibus  animi  hominum  moveantur." 
These  and  the  laws  against  unlawful  societies  were  the 
laws  by  which  the  Christians  were  persecuted.  This  was 
probably  the  law  to  which  the  Philippians  appealed  against 
Paul  and  Silas.  "  These  men  being  Jews  do  exceedingly 
"  trouble  our  city,  and  teacb  customs  which  are  not  lawful 
"  for  us  to  observe  nor  to  receive,  being  Komans  "  (Acts  xvi. 
20,  21). 

Engrossing. — ^To  raise  the  price  of  corn  was  an  "extra- 
ordinarium  crimen."  It  does  not  appear  where  the  line 
was  drawn  between  this  offence  and  that  which  fell  under 
the  Lex  Julia  de  Annona. 

Abortion. — *  A  woman  who  procured  her  own  miscarriage 
was  liable  as  for  an  "  extraordinarium  crimen,"  but  not 
under  the  Lex  Julia  against  homicides.  An  unborn  child 
was  not  regarded  as  a  human  being. 

Vagabonds. — *An  extraordinary  prosecution  lies  against 
vagabonds  who  carry  about  snakes  and  show  them,  if  any 
one  is  injured  by  the  fear  they  cause.  This  is  a  little 
like  our  law  against  rogues  and  vagabonds. 

Special  Offences  in  Particular  Provinces. — ^  Of 
offences  of  this  kind  two  are  mentioned  in  the  Digest, 
namely,  in  Arabia  a-KOTreXla-fio^,  which  consisted  in  laying 
stones  on  an  enemy's  ground  as  a  threat  that  if  the  owner 
cultivated  the  land  "  malo  leto  periturus  esset  insidiis 
"  eorum  qui  scopulos  posuissent " — a  sort  of  primitive  threat- 
ening letter,  not  unlike  letters  still  occasionally  delivered  in 
Ireland  to  prevent  the  occupancy  of  lands  from  which  a 
tenant  has  been  ejected. 

®  In  Egypt  the  breach  of  chomata,  dykes  of  the  Nile,  was 
a  special  offence. 

Scopelismus  was  punished  by  death.  The  breach  of  banks 
by  the  mines,  at  first,  and  afterwards  by  burning  alive.  It 
is  rather  singular  that  these   and  no  other  local   offences 

1  Pothier,  iv.  375.  "  Dig.  xlvii.  11,  6.  ^  lb.  11,  4. 

*  lb.  11,  11.  ''  lb.  11,  9.  0  lb.  11,  10. 


26  TOMBS — CONCUSSIO. 

Chap.  II.  should  be  mentioned  in  the  Digest.  It  would  have  been 
natural  to  expect  that  in  so  vast  an  empire  many  local  laws 
must  have  been  in  force  which  would  be  deserving  of  notice. 

Offences  Relating  to  Tombs. — The  texts  given  in  the 
12th  title  of  the  47th  book  of  the  Digest  mix  up  inextric- 
ably the  civil  remedies  relating  to  the  violation  of  tombs, 
with  provisions  as  to  criminal  prosecutions.  '•Tombs  were 
violated  by  burying  other  bodies  in  them,  by  using  them  as 
habitations,  and  in  various  other  ways,  and  the  offender  was 
in  most  cases  liable  to  an  action  for  a  penalty  sometimes 
of  100  and  sometimes  of  200  aurei.  Those  who  plundered 
dead  bodies  were  punished  capitally,  or  by  the  mines,  especi- 
ally if  they  committed  their  crime  in  armed  bands. 

CoNCUSSlO. — ^Concussio  is  defined  by  Cujas,  "terror  in- 
"jectus  pecunise  alteriusve  rei  extorquendae .  gratia."  It 
answers  in  fact  to  our  extortion  by  a  public  ofl&cer.  A  text 
from  Macer  shows  that  the  offence  bordered,  so  to  speak,  on 
the  "  publicum  judicium  "  of  the  "crimen  falsi." 

^  "  Concussionis  judicium  publicum  non  est,  sed  si  ideo 
"pecuniam  quis  accepit,  quod  crimen  minatus  sit,  potest 
"judicium  publicum  esse  ex  senatus  consultis  quibus  poena 
"  Legis  Cornelise  "  {i.e.  Falsi)  "  teneri  jubentur  qui  in  accusa- 
"tionem  innocentium  coierint,  quive  ob  accusandum  vel  non 
"  accusandum,  denuntiandum  vel  non  denuntiandum  testimo- 
"nium  pecuniam  acceperint."  No  reference  is  made  to  the 
Lex  Julia  Repetundarum,  which  is  stated  by  Macer  somewhat 
less  widely  than  by  Marcian  who  belongs  to  the  same  period. 
Macer's  statement  of  the  Lex  Julia  Repetundarum  reads  like 
a  word  for  word  quotation :  *  "  Praecipit  ne  quis  ob  judicem 
"arbitrumve  dandum  mutandum  jubendumve  ut  judicet, 
"neve  ob  non  dandum  non  mutandum  non  jubendum  ut 
"judicet;  neve  ob  hominem  in  vincula  publica  conjiciendum 
"  vinciendum  vincirive  jubendum,  exve  vinculis  dimittendum; 
"  neve  quis  ob  hominem  condemnandum  absolvendumve ; 
"neve  ob  litem  sestimandam,  judiciumve  capitis  pecuniseve 
"  faciendum  vel  non  faciendum  aliquid  acceperit." 

'  "  Praetor  ait  .  .  si  quis  in  sepulchro  dolo  malo  habitaverit." — Die    xlvii 
12,  3. 
*  Pothier,  iv.  379.  a  Dig.  xlvii.  13,  2.  ^  /j_  xlviii.  11,  7. 


ABIGEI — PREVARICATION — RECEIVERS.  2  '] 

Upon  the  whole  it  maybe  that  "concussio"  and  "repe-  Chap.  II. 
tundamm  "  may  be  likened  to  common  extortion  and  judicial 
corruption  respectively. 

Abigei. — Theft  in  general  was  treated  as  a  tort,  but  some 
particular  kinds  of  thieves  were  subject  either  to  "publica 
"judicia,"  or  to  "  extraordinaria  crimina."  Amongst  the 
latter  were  "  abigei "  "  drivers/'  or  cattle  thieves  :  ^  "  qui 
"  pecora  ex  pascuis,  vel  ex  armentis  subtrahunt  et  quo- 
"  dammodo  deprsedantur ;  et  abigendi  studium  quasi  artem 
"  exercent,  equos  de  gregibus  vel  boves  de  armentis  abdu- 
"  centes.  Cseterum  si  quis  bovem  aberrantem,  vel  equos  in 
"  solitudine  relictos  abduxerit,  non  est  abigeus  sed  fur  potius." 
The  stealing  of  a  single  horse  or  ox  might  make  a  man  an 
abigeus,  but  it  seems  that  ^  the  crime  could  not  be  committed 
on  less  than  four  pigs  or  ten  sheep.  They  need  not  how- 
ever be  all  taken  together.  In  such  a  state  of  the  law  one 
would  expect  thefts  of  three  pigs  or  eight  sheep  to  become 
abnormally  common.  By  a  law  of  Hadrian  this  offence  was 
punished  by  the  mines,  or,  if  the  thieves  were  armed, 
capitally. 

Prevarication. — ^Prevarication  was  a  crime  connected 
with  the  administration  of  justice. 

"  Prevaricator,"  says  Ulpian,  "  est  quasi  varicator  "  (a  man 
with  bandy  legs)  "qui  diversam  partem  adjuvat  proditS, 
"  caus§;  su^."  The  name  was  strictly  applied  to  accusers  who 
favoured  the  accused  in  a  "  publicum  judicium."  An  advo- 
cate who  betrayed  his  client  was  more  properly  called 
"proditor,"  a  traitor.  The  prevaricator  was  punished  as  a 
false  accuser. 

Receivers. — The  receivers  of  robbers  were  punished  like 
robbers.  *"Pessimum  genus^est  receptatorum  sine  quibus 
"  nemo  latere  diu  potest.  Et  pracipitur  ut  perinde  puniantur 
"  atque  latrones.  In  pari  causa  habendi  sunt  qui  quum  appre- 
"  hendere  latrones  possent  pecunia  accepta  vel  subreptorura 
"parte  demiserunt."  Indulgence,  though  not  complete  im- 
punity, was  extended  to  those  who  were  connected  with  the 
robber.      "Eos  tamen  apud  quos  adfinis  vel  cognatus  latro 

1  Dig.  xlvii.  14,  1,  1.  2  /j_  xi,  ,3.  s  75,  15,  1. 

^  Paulus.     Ih.  16,  1. 


28 


THEFT  AS  A  CRIME — STELLIONATUS. 


Chap.  II.  "conservatus  est,  neque  absolvendos  neque  severe  admoduiii 
"puniendos." 

Aggravated  Theft. — ^Thieves  who  stole  under  certain 
aggravated  circumstances  were  subject  to  "  extraordinaria 
"  crimina."     The  aggravations  were  as  follows : — 

(a)  Balnearii,  those  who  stole  the  clothes  of  bathers  in  the 
public  baths. 

(&)  Those  who  stole  by  night  (there  is  no  definition  of 
night)  or  who  defended  themselves  by  arms. 

(c)  Housebreakers  (effractores). 

{d)  "ExpUatores  qui  sunt  atrociores  fures."  It  is  not 
certain  what  was  their  special  characteristic.  Some  say 
(fantastically),  "expilatores  dici  quod  ne  pilum  quidem 
"relinquunt  in  corpore  spoliatorum."  Others  described  them 
as,  "  eos  qui  noctu  viatoribus  pallia  et  vestes  diripiunt." 

(e)  Saccularii,  thieves  who  stole  by  tricks  such  as  pre- 
tended magic. 

(/)  Directarii.  "Hi  qui  in  aliena  coenacula  se  dirigunt 
"  furandi  animo." 

All  these  were  punished  at  the  discretion  of  the  judge,  the 
severest  punishment  being  flogging  and  the  mines. 

Crimen  Expilat^  H^reditatis.  —  ^  A  stranger  who 
plundered  the  property  of  a  deceased  person  was  liable  to 
be  proceeded  against  as  upon  an  "  extraordinarium  crimen." 

STELLIONATUS. — SteUionatus  is  defined  by  ^Pothier  as 
"  omnis  atrox  dolus  qui  proprio  nomine  caret. "  It  is  strangely 
said  to  be  derived  from  "  Stellio,"  a  spotted  lizard,  of  which 
Pliny  strangely  observes,  "  Quo  nullum  animal  fraudulentius 
"invidere  homini  tradunt."  The  difficulty  of  giving  an  ade- 
quate definition  of  fraud  has  been  felt  at  all  times.  One 
mode  of  avoiding  the  difficulty  is  the  invention  of  a  con- 
veniently vague  term  of  abuse  like  "  stellionatus  "  or  "  dolus." 
Another  is  the  plan  of  annexing  the  character  of  a  crime  to 
the  combination  of  two  things  neither  of  which  is  criminal, 
as  in  our  own  conspiracy  to  defraud.  The  difficulty  exists 
in  the  very  nature  of  human  conduct.  The  following  are 
instances  of  "SteUionatus": — *"Si  quis  merces  supposuerit, 

'  Dig.  xlvii.  17  and  18.  ^  jf,_  iq_ 

3  iv.  384.  ^  Dig.  xlvii.  20,  3,  1.      ' 


UNLAWFUL  ASSOCIATIONS — PEIVATA  DELICTA.  29 

"  vel  obligatas  averterit,  vel  si  corruperit " — delivering  goods  Chap.  II. 
different  from  those  sold,  or  removing  goods  pledged,  or  in- 
juring them.  By  our  own  law,  two  persons  who  conspired 
together  for  such  a  purpose  would  be  guilty  of  an  indictable 
conspiracy,  but  if  one  person  did  it  alone  he  would  commit 
at  most  an  actionable  fraud. 

De  Teeming  Moto. — 'Moving  or  defacing  landmarks  was 
a  criminal  offence,  partly  on  account  of  the  great  importance 
attached  to  them  by  the  agrarian  laws. 

Unlawful  Associations.  —  ^No  associations  whatever 
(with  some  slight  exceptions)  were  allowed  to  exist  unless 
they  were  specially  authorised  either  by  the  Emperor  or  by 
the  Senate.  Those  who  formed  such  associations  were 
punished  in  the  same  way  as  persons  "  adjudged  to  have 
"  occupied  in  arms  public  places  or  temples."  Meetings  for 
religious  purposes  were  permitted  in  the  case  of  religions 
which  were  authorised  by  the  State,  but  in  no  other  cases. 
This  was  one  of  the  principal  laws  under  which  Christianity 
was  prohibited. 

III.  PEIVATA  DELICTA, 

Many  of  the  commonest  and,  in  practice,  most  important 
of  the  offences  against  person  and  property  which  fall  within 
what  I  have  described  as  the  Criminal  Law  were  treated  by 
the  Roman  lawyers  as  mere  private  wrongs,  "  privata  delicta," 
though  as  time  went  on  they  seem  to  have  come  to  be  re- 
garded as  crimes.  Two  passages  of  Ulpian  set  this  in  a  clear 
light.  ^He  says  in  his  2nd  book  {De  Officio  Proconsulis)  : 
"  Si  quis  actionem  quae  ex  maleficiis  oritur  velit  exsequi 
"  si  quidem  pecuniariter  agere  velit  ad  jus  ordinarium  le- 
"  mittendus  erit :  nee  cogendus  erit  in  crimen  subscribere. 
"  Enimvero  si  extra  ordiriem  ejus  rei  pcenam  exerceri  velit, 
"tunc  subscribere  eum  in  crimen  oportebit."  *In  another 
passage  (in  his  38th  book  on  the  Edict)  Ulpian  says  that  in 
his  time  thefts  were  generally  prosecuted  as  crimes :  "  Memi- 
"  nisse  oportebit  nunc  furti  plerumque  criminaliter  agi,  et 
"  eum  qui  agit  in  crimen  subscribere  :  non  quasi  publicum 

1  Dig.  xlvii.  tit.  21.  "  2b.  tit.  22,  1,  1. 

3  Dig.  xlvii.  1,3.  *  lb.  2,  92. 


3°  THEFT   AS   A   WRONG. 

Chap.  II.  «  gj^  judicium  sed  quia  visum  est  temeritatem  agentium  etiam 
"  extraordinaria  animadversione  coercendam.  Non  ideo 
"  tamen  minus  si  qui  velit  poterit  civiliter  agere.''  One 
obvious  cause  for  this  would  be  that  thefts  would  usually 
be  committed  by  persons  unable  to  pay  damages. 

The  "privata  delicta"  mentioned  in  the  Digest  are  as  fol- 
lows :  — 

FuRTUM. — Theft  is  thus  defined  by  Paulus  : — ^"Furtum 
"  est  contrectatio  rei  fraudulosa,  lucri  faciendi  gratia,  vel 
"  ipsius  rei,  vel  etiam  usus  ejus  possessionisve,  quod  lege 
"  naturali  prohibitum  est  admittere."  The  definition  omits 
the  element  which  from  other  passages  of  the  Digest  it 
obviously  ought  to  have  contained  of  "  invito  domino."  The 
manner  in  which  the  subject  of  theft  is  treated  in  the  Digest 
has  considerable  resemblance  to  the  manner  in  which  it  is 
dealt  within  our  own  law,  though  there  are  also  many  differ- 
ences between  them.  Nearly  every  question  which  has  pre- 
sented itself  to  English  judges  and  courts  at  different  times 
appears  also  to  have  presented  itself  to  the  Roman  lawyers. 
A  comparison  between  them  will  not  be  without  interest. 

^  By  the  Roman  law  the  offence  of  theft  could  be  committed 
on  anything  which  either  was  at  the  time  or  could  be  made 
movable.  The  Sabinians  at  one  time  held  that  land  and 
buildings  fraudulently  sold  were  stolen,  but  the  Proculeians 
were  of  the  opposite  opinion,  and  their  view  prevailed.  It 
was  always  admitted  that  theft  could  be  committed  on 
things  forming  part  of  or  growing  from  the  soil,  such  as  trees, 
stones,  sand,  and  fruits.  The  Roman  lawyers  knew  nothing 
apparently  of  the  strange  rules  of  the  common  law  as  to  the 
things  which  are  not  the  subject  of  larceny.  Perhaps  these 
rules  were  made  to  evade  the  severity  of  the  common  law 
punishment  of  theft.  The  most  objectionable  of  all  the 
common  law  rules  (that  by  which  things  in  action,  as  e.g. 
notes  and  bills,  were  not  capable  of  being  stolen)  ^  was  diame- 
trically opposed  to  the  Roman  law.  "  Qui  tabulas  aut 
"  cautiones  amovit,  furti  tenetur  non  tantum  pretii  ipsarum 

^  Dig.  xlvii.  2,  1,  3.  In  the  same  passage  the  word  is  derived  from 
"  fiirvo,  id  est  nigro  .  .  .  q^uod  clam  et  obsouro  fiat,  et  plerumque  nocte." 
Other  fantastic  derivations  are  given. 

=  Pothier,  iv.  327.  ^  Dig.  xlvii.  2,  27. 


THEFT  AS  A  WRONG.  3^ 

"  tabularum,  verum  ejus  quod  interfuit,  quod  ad  sestimationem  Chap.  II. 
"  refertur  ejus  summse  quae  in  his  tabulis  continetur."     This 
resembles  24  &  25  Vic.  c.  96,  s.  27,  by  which  a  person  who 
steals  a  valuable  security  is  punishable  as  if  he  had  stolen 
a  chattel  of  the  like  value. 

As  to  the  nature  of  the  crime  itself  the  Roman  law  was  in 
one  important  particular  far  more  severe  than  the  common 
law.  Theft  as  defined  by  the  common  law  includes  an  intent 
to  deprive  the  owner  permanently  of  the  stolen  goods.  The 
Roman  law  applied  also  to  an  intent  to  steal  its  use  or  posses- 
sion. Thus:  ^"Si  pignore  creditor  utatur  furti  tenetur," 
^"fuUo  et  sarcinator"  (a  tailor),  "  qui  polienda  vel  sarcienda 
"  vestimenta  accepit  si  forte  his  utatur,  ex  contrectatione 
"  eorum  furtum  fecisse  videtur  quia  non  in  earn  causam  ab 
"  eo  videntur  accepta."  ^"Qui  jumenta  sibi  commodata 
"  longuis  duxerit  alien^ve  re  invito  domino  usus  sit  furtum 
"  facit."  Perhaps,  as  the  severity  of  the  common  law 
led  to  the  various  subtleties  by  which  its  operation  was  so 
much  restricted,  the  principle  that  theft  was  in  common  cases 
only  a  civil  injury  may  have  led  the  Roman  lawyers  to  extend 
the  definition  of  it.  The  "  contrectatio  "  of  the  Roman  lawyers 
was  somewhat  wider  than  the  "taking"  which  enters  into 
the  English  definition  of  larceny.  According  to  English  law, 
if  the  first  taking  is  lawful  no  subsequent  unlawful  dealing 
with  the  thing  taken  amounts  to  theft,  special  exceptions 
excepted.  This  does  not  seem  to  have  occurred  to  the  Roman 
lawyers,  though  they  also  regarded  an  actual  touching  of  the 
stolen  goods  as  essential  to  theft  (*  "Hoc  jure  utimur  ut  furtum 
"  sine  contrectatione  non  fiat,"  says  Ulpian),  but  if  there  was 
such  a  touching  it  was  immaterial  whether  it  took  place  be- 
fore or  after  the  offender  got  possession  of  the  thing  stolen. 
°  Thus,  barely  to  deny  the  receipt  of  a  thing  intrusted  to  one 
was  not  theft.  To  conceal  it  after  receiving  it  with  intent 
to  convert  it  to  one's  own  use  (intercipiendi  causa)  was  theft. 
So,  ®"Qui  vendit  rem  alienam  sciens,  ita  demum  furtum 
"  committit  si  earn  contrectaverit." 

1  Dig.  xlvii.  2,  54.  ^  lb.  2,  82. 

3  lb.  2,  40,  and  see  PotMer,  iv.  329.  *  Dig.  xlvii.  2,  52,  19. 

*  lb.  2,  12.  "  Tills  is  Pothier's  inference  ;  see  iv.  321. 


32  THEFT  AS  A  WKONG. 

Chap.  II.  This  view  of  the  subject  would  avoid  the  distinction 
between  theft  and  some  of  the  forms  of  fraudulent  breach  of 
trust  which  went  unpunished  at  common  law.  It  would  take 
away  one  of  the  impediments  by  which  English  lawyers  were 
prevented  from  treating  embezzlement  as  theft.  This  doctrine 
also  leads,  by  a  shorter  and  plainer  route,  to  the  conclusion 
at  which  the  Court  for  Crown  Cases  Eeserved  lately  arrived 
in  the  case  of  ^R.  v.  Middleton.  It  was  decided  in  that 
case  that  if  A  gives  B  a  sovereign  instead  of  a  shilling,  and 
B  knowingly  accepts  and  keeps  the  sovereign,  B  is  guilty 
of  theft.  The  case  presented  great  difficulties,  as  may  be 
seen  by  the  judgment,  but  by  the  Roman  lawyers  it  was 
very  naturally  decided:  ^"Si  rem  meam  quasi  tuam  tibi 
"  tradidero  scienti  meam  esse,  magis  est"  (it  is  the  better 
opinion)  "furtum  te  facere  si  lucrandi  animo  id  feceris." 
The  difficulty  with  the  Roman  lawyers  in  such  a  case 
was  not  as  to  the  " contrectatio,"  but  as  to  the  "invito 
domino." 

It  does  not  appear  from  the  Digest  that  the  Roman  lawyers 
found  as  much  difficulty  as  our  own  in  determining  on  the 
precise  moment  at  which  theft  is  completed.  Probably  this 
arises  from  the  different  view  taken  of  theft  in  the  two  systems- 
In  a  system  which  when  it  was  formed  regarded  theft  as  a 
capital  crime,  it  was  obviously  necessary  to  distinguish  with 
perfect  accuracy  the  moment  at  which  the  crime  began.  In 
a  system  in  which  theft  was  regarded  as  a  civil  injury  this 
was  immaterial,  because  no  one  would  sue  another  for  a  mere 
formal  theft.  Another  application  of  the  same  principle  is, 
perhaps,  to  be  found  in  the  circumstance  that  one  highly 
technical  branch  of  the  Roman  law  on  the  subject  is  not 
represented  at  all  in  English  law.  The  Digest  contains  many 
texts  turning  on  the  question-  how  much  of  a  given  article 
was  stolen  by  a  given  act.  ^  A  man  who  cut  off  part  of  a 
piece  of  plate  (qui  lancem  rasit),  was  considered  as  having 
stolen  the  whole  plate.  It  was  a  moot  point  whether  a  man 
who  stole  a  bushel  of  corn  from  a  heap  or  a  cargo,  stole  the 
whole  heap  or  cargo  or  only  the  bushel.     This  is  one  of  the 

1  L.  E.  2  C.  C.  R.  38.  ^  Dig_  xlvii.  2,  44,  1. 

»  lb.  22,  2. 


ROMAN   AND   ENGLISH  LAW   OF  THEFT.  S3 

points  which  ^  Gibbon  notices  as  illustrating  the  influence  of  Chap.  II. 
the  Stoic  philosophy  on  the  Roman  law.  May  not  the  ques- 
tion of  the  measure  of  damages  have  been  connected  with 
it?  The  result  of  an  "actio  furti"  was  double  or  quadruple 
damages  according  as  the  theft  was  "nee  manifestum"  or 
"  manifestum."  The  amount  due  could  obviously  not  be  ascer- 
tained unless  the  value  of  the  stolen  goods  was  known,  and 
that  again  must  depend  on  the  question  as  to  how  much  was 
stolen.  A  passage  of  Ulpian  on  this  subject  deserves  to  be 
quoted  as  a  good  instance  of  that  mode  of  argument  by 
illustration  and  analogy  which  from  the  nature  of  the  case 
must  always  be  a  favourite  with  lawyers.  ^ "  Si  de  navi 
"  onerat^  furto  quis  sextarium  frumenti  tulerit  utrum  totius 
"  oneris,  an  vero  sextarii  tantum  furtum  feeerit  ?  Facilius 
"  hoc  quaeritur  in  horreo  pleno.  Et  durum  est  dicere  totius 
"  furtum  fieri.  Et  quid  si  cisterna  vini  sit  ?  Quid  dicet  ? 
"  Aut  aquae  cisterna  ?  Quid  deinde  si  [de]  nave  vinaria  ut 
"sunt  multae,  in  quas  vinum  effunditur?  Quid  dicemus 
"  de  eo  qui  vinum  hausit,  an  totius  oneris  fur  sit  ?  Et 
"  magis  est  et  ut  hie  non  totius  dicamus." 

The  definition  of  theft  according  to  Roman  as  well  as 
according  to  English  law  included  a  mental  element.  By 
English  law  the  taking  in  order  to  be  felonious  must  be  with 
intent  to  deprive  another  of  his  property  permanently,  wrong- 
fully, and  without  claim  of  right.  By  Roman  law  the 
"  contrectatio  "  must  be  "  fraudulosa  et  lucri  faciendi  gratis,." 
Of  course  a  person  who  takes  what  does  not  belong  to  him, 
intending  to  deprive  the  owner  of  it,  acts  primd  facie  frau- 
dulently. The  cases  in  which  such  a  taking  is  innocent 
must  under  any  system  be  exceptional.  The  exceptions  in 
Roman  law  were  much  the  same  as  they  are  in  English  law. 
By  English  law  a  claim  of  right  excludes  a  felonious  intent. 
Thus  in  Roman  law,  ^"  recte  dictum  est  qui  putavit  se  domini 
"  voluntate  rem  attingere  non  esse  furem."  *  "  Qui  re  sibi 
"  commodata,  vel  apud  se  deposita,  usus  est  alitor  atque 
"  accepit,  si  existimavit  se  non  invito  domino  id  facere  furti 
"  non   tenetur."     ^ "  Si   quis    ex  bonis   ejus  quem  putabat 

1  Gibbon,  ch.  xliv.  «  p;g  xlvii.  2,  2],  .'?.  ^Jh.2,i6,7. 

"  lb.  2,  76,  '  II.  2,  83. 

VOL.   L  U 


34  ROMAN  AND  ENGLISH  LAW  OF  THEFT. 

Chap.  II.  "  mortuum  qui  vivus  erat,  pro  herede  res  apprehenderit,  eum 
"  furtum  non  facere." 

The  principle  in  all  these  and  other  cases  is  the  same ; 
there  is  no  theft  where  there  is  a  claim  of  right. 

The  rule  of  the  Eoman  law  that  misappropriation  must  be 
"  lucri  faciendi  caus^  "  in  order  that  it  might  amount  to  theft 
has  been  on  several  occasions  rejected  expressly  from  the 
English  definition  of  theft.  It  is,  indeed,  obviously  inex- 
pedient and  hardly  capable  of  being  applied.  The  Digest 
does  not  supply  many  illustrations  of  it,  and  the  texts  which 
bear  upon  it  are  not  quite  consistent.  ^  "  Verum  est,"  says. 
Ulpian,  "si  meretricem  alienam  ancillam  rapuit  quis  vel 
"  celavit  furtum  non  esse ;  nee  enim  factum  quajritur  sed 
"  causa  faciendi,  causa  autem  faciendi  libido  fuit  non  furtum." 
Paulus,  however,  says,  ^  "  Qui  ancillam  non  meretricem  libi- 
"  dinis  causa  surripuit  furti  actione  tenebitur."  An  attempt 
has  been  made  to  reconcile  these  texts,  but  they  appear  to 
me  clearly  inconsistent.  Possibly  the  "lucri  faciendi  caus^" 
may  have  been  inserted  in  the  definition  mainly  with  the 
view  of  drawing  a  line  between  mischief  and  theft. 

The  Roman  law  at  all  events,  regarded  the  question 
whether  the  thief  or  some  one  else  was  to  profit  by  the 
offence  as  a  matter  of  indifference.  ^ "  Si  quis  de  manu 
"  alicujus  nummos  aureos  vel  argenteas  vel  aliam  rein  ex- 
"  cusserit,  ita  furti  tenetur  si  ideo  fecit  ut  alius  toUeret 
"  isque  sustulerit." 

The  doctrine  that  theft  must  be  "invito  domino,"  against  the  ■ 
will  of  the  owner  of  the  property  stolen,  is  common  to  Roman 
and  English  law,  though  the  two  systems  apply  it  somewhat 
differently.  According  to  the  law  of  England  it  is  theft  to 
take  goods  with  the  owner's  consent  if  the  consent  is  obtained 
by  fraud,  and  if  the  owner  intends  to  part  with  the  possession 
only;  but  it  is  not  theft  to  take  goods  with  the  owner's 
consent  if  he  is  persuaded  by  fraud  to  part  not  only  with  the 
possession  but  with  the  property. 

By  Roman  law  the  line  between  theft  and  obtaining  goods 
by  false  pretences  turned  not  upon  the  question  whether  the 

1  Dig.  xlvii.  2,  39.  "  Ih.  2,  82,  2.  3  lb.  2,  52, 14. 


ROMAN   AND   ENGLISH   LAW  OF  THEFT.  i     35 

owner  consented  to  part  with  the  property  or  with  the  pos-  Chap.  II. 

session  only,  but  upon  the  question  as  to  the  means  by  which 

he  was  deceived.    If  a  man  deceived  another  by  personation, 

or  by  means  regarded  as  equivalent  to  it,  and  so  obtained  his 

property,  the   offence  was    theft.     ^"Falsus  creditor,"  says 

Ulpian,    "  hoc   est  is   qui  se   simulat    creditorem,    si   quid 

"  acceperit  furtum  facit,  nee  nummi  ejus  fiunt."    He  also  says, 

- "  Cum  Titio  honesto  viro  pecuniam  credere  vellem,  subjecisti 

"  mihi  alium  Titium  egenum,  quasi  ille  esset  locuples,  et  num- 

"  mos  acceptos  cum  eo  divisisti,  furti  tenearis  quasi  ope  tu^ 

"  consilioque  furtum  factum  sit,  sed  et  Titius  furti  tenebitur." 

On  the  contrary,  ^  "  Si  quis  nihil  in  person^  suS,  mentitus  est, 

"  sed  verbis  fraudem  adhibuit,  fallax  est  magis  quam  furtum 

"  facit,  utputa  si  dixit  se  locupletem,  si  in  mercem  se  collo- 

"  caturum  quod  accepit,  si  fideiussores  idoneos  daturum,  vel 

"  pecuniam  confestim  se  soluturum."     It  must  be  observed 

that   none  of  these  cases,   except   perhaps  the   first,  quite 

comes  up  to  a  false  pretence  of  an  existing  fact.     Perhaps 

if  the  case  of  a  complete  deception  as  to  some  existing  fact 

other  than  that  of  the  identity  of  a  person  had  presented 

itself,  the  Roman  lawyers  would  have  held  it  to  be  theft. 

If   so,    their    law   and   ours   would   be   nearly   coextensive, 

though    they  would   not   make    the    distinction    which    is 

made  by  us  between  theft  and  false  pretences.     The  case  of 

obtaining  possession  only  by  fraud  and  then  converting  the 

property  (as  where  a  man  gets  leave  to  mount    a  horse  to 

try  him  and  rides  away)  would  present  no  difficulty  to  a 

Roman  lawyer,  as  the  riding  the  horse  away  would  be  clearly 

"fraudulosa   contrectatio,"   though   the   mounting  was   not 

"  invito  domino." 

It  must  be  observed  that  the  words  "  invito  domino  "  were 
construed  so  strictly  by  some  Roman  lawyers,  that  the  question 
was  raised  at  all  events.  Whether,  if  a  man  gave  up  his  pro- 
perty to  a  robber  upon  threats,  the  property  was  stolen? 
Labeo  says,  * "  Si  quis  cum  sciret  quid  sibi  surripi  non  pro- 
"  hibuit  non  potest  furti  agere.     Paulus  imo  contra.  Nam  si 


1  Dig.  xlvii.  2,  43.  ^  Ih.  2,  52,  21. 

3  Ih.  2,  43,  3.  "  n.  2,  91. 

D   2 


36  EOMAN  AND   ENGLISH  LAW  OF  THEFT. 

Chap.  II.  "  quis  scit  sibi  rapi,  et  quia  non  potest  prohibere  quievit  furti 
"  agere  potest." 

The  Roman  and  the  English  law  on  the  subject  of  the 
possession  of  stolen  property  is  not  dissimilar,  though  many 
of  the  fictions  which  have  been  introduced  into  English  law 
in  order  to  evade  the  consequences  of  the  rule,  that 
a  wrongful  taking  is  always  necessary  in  larceny,  are  dispensed 
with  in  Roman  law  by  the  more  reasonable  doctrine  of 
"  contrectatio." 

In  order  that  a  thing  might  be  stolen  it  was  necessary  by 
Roman  law  that  it  should  be  in  the  possession  of  some  person, 
or  that  some  one  should  intend  to  possess  it.  Things  which 
had  been  abandoned  by  the  owner,  or  which  had  never  been 
reduced  into  possession,  could  not  be  stolen.  1 "  Quodsi  dominus 
"■  quid  dereliquit  furtum  non  fit  ejus,  etiamsi  ego  fura"Qdi 
"  animum  habuero.  Nee  enini  furtum  fit  nisi  sit  cui  fiat  ?  " 
"  ^  Si  apes  ferae  in  arb'ore  fundi  tui  apes  fecerint,  si  quis  eas 
"  vel  favum  abstulerit  eum  non  teneri  tibi  furti,  quia  non 
"  fuerint  tus ;  easque  constat  captarum  terrS  mari  ccelo 
"  numero  esse." 

The  Roman  and  the  English  law  agree  in  some  particulars 
as  to  the  persons  by  whom  theft  can  be  committed. 

Married  persons  could  not  steal  from  each  other,  nor  was  a 
married  person  guilty  of  theft  who  helped  some  one  else  to 
steal  from  his  wife  or  husband. 

^  Joint  owners  could  by  the  Roman  law  steal  from  each 
other,  "Si  socius  communis  rei  furtum  fecerit  (potest  enim 
"  communis  rei  furtum  facere)  indubitate  dicendum  est  furti 
"  actionem  competere."  This  is  the  precise  equivalent  of 
Mr.  Russell  Gurney's  Act,  31  &  32  Vic.  c.  Il6,  s.  1. 

The  English  rule  of  evidence  as  to  recent  possession  was 
also  recognised  by  the  Romans.  Thus  in  the  Sixth  Book  of 
the  Code  Tit.  ii.  v.,  it  is  said,  "  Civile  est  quod  [a  te]  adver- 
"  sarius  tuus  exigit :  ut  rei  quod  apud  te  fuisse  fateris 
"  exhibeas  venditorem,  nam  a  transeunte  et  ignoto  te  emisse 
"  dicere  non  convenit  volenti  evitare  alienam  bono  viro  sus- 
"  picionem."  "  You  ought  to  produce  the  person  who  you 
"  say  sold  you  what  you  own  you  had,  for  no  one  who  has 
'  Dig.  xlvii.  2,  43,  5.  2  lb.  2,  26.  s  jj_  2,  45. 


THEFT  FROM  THE  INHERITANCE.  37 

"  any  regard  for  his  character  for  honesty  -will  say  he  bought  Chap.  II. 
"  it  from  a  man  in  the  road  whom  he  did  not  know."     This 
statement  is  often  made  in  English  courts,  but  as  a  rule  by 
those  who  can  hardly  expect  "  evitare  alienam  bono   viro 
"  suspicionem." 

Besides  the  common  action  of  theft  there  were  several 
subordinate  actions  -which  provided  for  analogous  wrongs. 
They  were  as  follows : 

De  Tigno  Juncto. — ^  This  was  an  action  as  old  as  the  laws 
of  the  Twelve  Tables  providing  a  special  remedy  in  the  case 
of  materials  stoleii  and  used  up  in  erecting  buildings,  or 
scaffolds  for  vines.  A  distinction  was  made  between  this  and 
other  cases,  "  ne  vel  sedificia  sub  hoc  pratextu  diruantur,  vel 
"  vinearum  cultura  turbetur." 

Si  Qui  Testamento  Liber. — This  was  a  special  action 
to  provide  for  the  case  of  a  slave  whose  master  had  left  him 
his  liberty,  and  who,  in  the  interval  between  the  testator's 
death  and  the  heir's  succession  fraudulently  disposed  of 
anything  to  which  the  heir  would  have  a  right  when  he 
succeeded  to  the  inheritance.  The  necessity  for  such  an 
action  arose  from  the  singular  doctrines  of  the  Roman  law 
as  to  slavery  and  as  to  inheritance.  During  the  interval 
after  his  master's  death  the  slave  was  the  property  of  the 
fictitious  person,  the  inheritance  itself  As  soon  as  the 
heir  succeeded  the  slave  became  free  under  the  will.  On 
attaining  his  freedom  he  was  no  longer  punishable  as  a 
slave,  and  till  he  attained  it  he  was  not  punishable  as  a 
free  man.  '  He  could  not  therefore  be  punished  in  any  way 
for  what  he  did  whilst  he  was  a  slave  to  the  inheritance.  The 
praetor's  edict  remedied  this  defect,  ^"Natur^  sequum  est  non 
"  esse  impunitum  eum  qui  hac  spe  audacior  factus  est  quia 
"  neque  ut  servum  se  coerceri  posse  intelligit,  spe  imminen- 
"  tis  libertatis,  neque  ut  liberum  damnari,  quia  hereditati 
"  furtum  fecit,  hoc  est  dominse.  Dominus  autem  dominave 
"  non  possunt  haberi  furti  actionem  cum  servo  suo  quamvis 
"  postea  ad  libertatem  pervenerit." 

The  necessity  which  formerly  existed  for  laying  the  pro- 
perty of  the  goods  of  a  deceased  person  in  the  bishop  of  the 
1  Dig.  xlvii.  S.  "  lb.  i,  1. 


38  bailees'   HiBILITY  FOR  SERVANTS. 

Chap.  II.  diocese,  and  now  in  the  judge  of  tlie  Court  of  Probate,  in 
prosecutions  for  stealing  sucli  goods  before  administration  was 
taken  out,  has  a  sort  of  vague  similarity  to  this  proceeding. 

FuRTi  Adverstjs  Nautas,  Oaupones,  Stabularios. — 
^This  was  an  action  which  lay  against  ship-masters,  inn- 
keepers, and  stable-keepers,  for  thefts  committed  by  per- 
sons in  their  employ.  "  The  master  ought  to  answer  for 
"  what  is  done  by  his  sailors,  whether  they  are  free  or  slaves." 
This  is  right  because  he  employs  them  at  his  own  risk,  but 
he  is  answerable  only  for  injuries  done  by  them  on  board  his 
ship ;  if  they  do  injury  elsewhere  he  is  not  answerable  for  it. 
If  he  says  beforehand  that  each  of  the  passengers  is  to  look 
after  his  own  property,  and  that  he  (the  master)  will  not  be 
answerable  for  loss,  and  if  the  passengers  agree  he  is  not 
answerable.  The  master  might  free  himself  from  responsibility 
as  regarded  the  acts  of  his  slave  by  giving  up  the  slave  in 
satisfaction  (noxse  dedendo),  but  his  responsibility  for.  the 
fault  of  a  free  man  employed  by  him  was  absolute.  Ulpian 
speculates  on  the  reason  of  this.  ^  "  Cur  ergo  non  exercitor 
"  condemnetur  qui  servum  tam  malum  in  nave  admisit  ?  Et 
"  cur  Kberi  hominis  nomine  tenetur  in  solidum,  servi  vero 
"  non  tenetur  ?  Nisi  forte  idcirco,  quod  liberum  quidem 
"  hominem  adhibens,  statuere  debuit  de  eo  qualis  esset,  in 
"  servo  vero  suo  ignoscendum  sit  ei  quasi  in  domestico  malo, 
"  si  noxse  dedere  paratus  sit.  Si  autem  alienum  adhibuit 
"  servum  quasi  in  libero  tenebitur." 

^The  title  "Si  familia  furtum  fecisse  dicitur,"  throws 
further  light  on  the  responsibility  of  masters  for  the  thefts 
and  other  offences  of  their  slaves.  The  title  goes  into  con- 
siderable detail,  but  it  will  be  enough  to  say  that  masters 
were  allowed  as  a  matter  of  privilege  to  pay  for  damage  done 
by  their  slaves,  instead  of  being  obliged  to  give  them  up  by 
way  of  compensation,  unless  the  injury  done  was  done  with 
the  master's  assent. 

Aeborxjm  Furtim  CiESARUM. — *This  was  a  special  action 
for  damage  short  of  theft  to  growing  trees. 

Vi  BoNOEUM  Kaptorum  et  de  Turba  et  de  Incen- 
Dio,  KuiNA,  Naufragio,  Kate,  Nave  Expugnata. — ^  These 

'  Dig.  xlvii.  5.  2  7j.  5^  5.         »  lb.  6.  *  lb.  7.  «  7J.  8  &  9. 


CIVIL   REMEDIES  FOR  VIS   PtTBLICA — INJURIA.  39 

titles  relate  to  civil  remedies  for  acts  which  amounted  to  the  Chap.  II. 
crime  of  "vis  publica"  or  "privata,"  and  of  arson  ("incen- 
dium").  Incidentally,  however,  several  Senatus  Consulta  are 
mentioned  which  treat  particular  acts  connected  with  wrecks 
and  fires  as  crimes.  Some  of  these  are  very  like  English 
Acts  of  Parliament.  Thus :  ' "  Senatus  consulto  cavetur  eos 
"  quorum  fraude  aut  concilio  naufragi  suppressi  per  vim 
"  fuissent  ne  navi  vel  iis  periclitantibus  opitulentur-  legis 
"  Cornelise  quae  de  sicariis  lata  est  pcenis  afficiendos."  Com- 
pare with  this  24  &  25  Vic.  c,  100,  s.  17,  which  renders 
liable  to  penal  servitude  for  life  every  one  who  "  prevents  or 
"  impedes  any  person  being  on  board  of,  or  having  quitted 
"  any  ship  or  vessel  in  distress,  wrecked,  stranded,  or  cast  on 
"  shore,  in  his  endeavour  to  save  his  life,  or  prevents  or  im- 
"  pedes  any  person  in  his  endeavour  to  save  the  life  of  any 
"  person  so  situated." 

Injuria.— The  10th  title  of  the  47th  book  of  the  Digest 
is  headed  "  De  injuriis  et  libellis  famosis."  The  expression 
"injuria"  in  Roman  law  was  nearly  as  vague  a  word  as  the 
expression  "  wrong  "  or  "  tort  "  in  our  own,  for,  in  the  wider 
sense,  it  included  ^  "  omne  quod  non  jure  fit,"  and  in  the 
narrower  "  contumelia,"  or  "  damnum  culpS,  datum."  There 
are,  however,  four  special  heads  of  "  injuria  "  referred  to  in 
the  Digest,  namely,  injuries  to  the  person,  to  dignity,  to  repu- 
tation, and  to  Hberty.  Injuries  to  the  person  consisted  not 
only  in  blows,  but  in  threatening  gestures,  and  included  the 
case  of  administering  anything  hurtful  to  the  mind,  ^"si  quis 
"  mentem  alicujus  medicamento  aliove  quo  alienaverit." 

An  injury  to  "  dignity  "  was  apparently  confined  to  a  single 
case:  *"Ad  dignitatem  cum  comes  matronse  abducitur." 
According  to  Roman  manners,  matrons  were  always  accom- 
panied in  public  by  some  person  who  acted  the  part,  as  we 
should  say,  of  a  chaperon.  To  cause  such  a  person  to 
desert  his  mistress  was  "  injuria  ad  dignitatem  pertinens." 
If  the  offender  went  a  step  further  his  act  was  "  injuria  ad 
infamiam  pertinens,"  that  is  to  say,  if  he  paid  attentions 
to   any   person   the   object  of  which   was  ^ "  ut  ex  pudico 

1  Dig.  xlvii.  9,  3,  8.  »  lb.  10,  1.  '  li.  10,  1,  2. 

*  2b.  10,  15.  s  lb.  10,  10. 


40  INJUEIA. 

Chap^iI.  impudicus  fiat."  The  special  example  given  is,  "  Si 
quis  mulierem  appellaverit,"  and  the  word  "appellare" 
is  defined  thus :  ^ "  blanda  oratione  alterius  pudicitiam 
"  adtentare."  "Hoc,"  observes  Ulpian,  "non  est  con- 
"  vicium  facere  sed  adversus  bonos  mores  attentate."  The 
offence  seems  to  have  been  rather  more  extensive  than  the 
solicitation  of  chastity,  which  was,  and  theoretically  still  is, 
an  ecclesiastical  offence  in  England.  Mere  following  a 
woman  about  was  "injuria."  "Quum  quis  honestam 
"  mulierem  adsectatur.  .  .  .  Assectatur  qui  tacitus  frequenter 
"  sequitur."  Such  attentions,  however,  must  be  "  contra 
"  bonos  mores."  Ulpian  is  careful  to  explain  that  a  man  "  non 
"  statim  in  edictum  incidit.  Si  quis  colludendi  gratia  id  facit." 

The  law  of  libel  and  slander  was  in  a  very  imperfectly 
developed  state  at  the  time  when  the  Digest  was  compiled. 
The  following  texts  show  that  defamation,  whether  written  or 
verbal,  was  regarded  as  an  instance  of  "  injuria,''  and  that 
the  truth  of  a  defamatory  statement  was  a  justification  for 
it.  3  "  gi  qyig  librum  ad  infamiam  alicujus  pertinentem  scrip- 
"  serit,  composuerit,  ediderit,  dolove  malo  fecerit  quo  quid 
"  eorum  fieret,  etiam  si  alterius  nomine  ediderit  vel  sine 
"  nomine,  uti  de  ea  re  agere  liceret." 

"  Convicium  "  was  a  form  of  "  injuria."  "  Convicium  "  is  said 
to  exist  in  the  "  coUatio  vocum."  "  Cum  enim  in  unum 
"  complures  voces  conferuntur  convicium  appellatur  quasi 
"  convocium." 

In  order,  however,  to  be  a  "  convicium,"  the  "  vociferatio  " 
must  be  "  adversus  bonos  mores,"  and  "  ad  infamiam  vel  in- 
"  vidiam  alicujus."  Not  only  he  who  himself  vociferated,  but 
he  who  stirred  up  others  to  vociferation,  committed  the 
offence,  and  if  the  defamatory  matter  was  uttered  publicly 
"  in  coetu  "  it  was  "convicium,''  whether  it  was  said  by  one 
person  or  by  more  persons  than  one.  Defamatory  matter 
spoken  in  private,  ^  "convicium  non  proprie  dicitur,  sed  in- 
"  famandi  causa  dictum." 

The  commonest  form  of  defamation  at  that  time  appears  to 
have  been  by  symbolical  actions,  ^as  by  wearing  mourning,  or 

1  Dig.  xlvii.  10,  15,  20.  2  Ih.  10,  15,  22,  23.  »  Ih.  10,  15,  9. 

*  lb.  10,  15,  i.  5  lb.  10,  15,  12.  6  Ih.  10,  15,  27. 


CRIMINAL    PROCEDURE.  4^ 

going  about  unshorn,  or  with  loose  hair,  as  a  protest  against  Chap.  II. 
the  oppression  of  the  person  defamed. 

The  qiiestion  of  justification  is  dealt  with  in  these  few  v^ry 
inadequate  words  of  Paulus :  ^"  Eum  qui  nocentem  infamavit 
"  non  esse  bonum  sequum  ob  earn  rem  condemnari,  peccata 
"  enim  nocentium  nota  esse  et  oportere  et  expedire." 

"  Injuria  "  might  in  some  cases  be  committed  by  trespassers 
on  property,  as  for  instance  by  breaking  into  a  dwelling- 
house,  or  entering  upon  land.  ^"Divus  Pius  aucupibus  ita 
"rescripsit:  non  est  (rationi)  consentaneum  ut  per  aliena 
"  pr^dia  invitis  dominis  a-ucupium  faciatis."  So  it  was 
"  injuria "  to  make  your  neighbour's  room  smoke.  ^  "  Si 
"  inferiorum  dominus  sedium  superioris  vicini  fumigandi 
"  causS,  fumum  faceret,"  but  as  to  this  there  was  some  doubt. 

IV.    CRIMINAL   PROCEDURE. 

It  would  be  foreign  to  my  purpose  to  try  to  describe  the 
criminal  procedure  of  the  Komans  under  the  Eepublic,  or  to 
specify  the  numerous  changes  which  were  made  at  different 
times  in  the  constitution  and  powers  of  the  various  tribunals 
of  a  criminal  jurisdiction.  The  only  form  in  which  the 
system  can  have  influenced  our  own  criminal  law,  is  that 
which  it  assumed  under  the  Empire.  It  is  still  possible  to 
give  a  pretty  full  outline  of  the  system  which  probably  pre- 
vailed there  when  Britain  was  a  Eoman  province. 

*  In  the  days  of  Constantine  the  Empire  was  divided  as 
follows  :-;- 

1.  There  were  four  prsetorian  prsefects,  namely,  the  prsefect 
of  the  East,  who  governed  Eastern  Africa,  Syria,  and  Asia 
Minor  ;  the  prefect  of  lUyricum,  who  governed  the  whole  of 
the  South-East  of  Europe ;  the  prsefect  of  Italy,  who  governed 
Italy,  the  South-West  of  Germany,  and  "Western  Africa ;  and  the 
prsefect  of  the  Gauls,  who  governed  Gaul,  Spain,  and  Britain. 
Rome  and  Constantinople,  with  their  respective  territories, 
were  excluded  from  these  preefectures,  and  were  under 
municipal  prsefects  of  their  own. 

These   preefectures  were   divided    into   thirteen   dioceses, 

1  Dig.  xlvii.  10,  18.  \  Pothier,  iv.  363. 

3  Dig.  xlvii.  10,  44.  *,  Gibbon,  ch.  xvu. 


42  ORGANIZATION   OF    EMPIRE. 

Chap.  II.  namely,  1.  The  East ;  2.  Egypt ;  3.  Ariana ;  4.  Pontica ; 
5.  Thrace ;  6.  Macedonia ;  7.  Dacia ;  8.  Pannonia  ;  9.  Italy  ; 
10.  Africa;  11.  Gaul;  12.  Spain;  13.  Britain.  Each  of 
these  was  under  a  vicar  or  vice-praefect,  except  Egypt,  the 
ruler  of  which  was  called  the  Augustal  Prsefect,  and  the 
East,  the  prsefect  of  which  was  called  the  Count  of  the  East. 
The  dioceses  were  divided  into  116  provinces,  of  which 
3  were  governed  by  proconsuls,  37  by  consulars,  5  by 
correctors,  and  71  by  presidents.  They  are  commonly  called 
by  the  name  of  prceses  in  the  Digest.  Each  province  was 
composed  of  a  number  of  cities  greater  or  less  with  their  terri- 
toria.  The  cities  were  of  different  ranks,  some  being  colonies 
and  others  municipia,  but  each  had  their  own  magistrates. 
Through  the  territoria  were  distributed  stationarii  milites  or 
policemen,  who  were  under  military  organization,  the  super- 
intendents being  called  centurions  or  centenarii.  The 
stationarii  were  subject  to  a  superior  officer  called  princeps 
pads,  or  eirenarcha — a  word  which  it  is  impossible  not  to 
translate  by  justice  of  the  peace.  This  organization  of  the 
Eoman  Empire  corresponds  with  curious  exactness  to  the 
organization  of  the  British  Empire  in  India,  and  especially 
in  Northern  India.  India  would  have  constituted  a  fifth 
prsefecture,  much  larger  than  either  of  the  others,  or  indeed 
than  any  two  of  them,  but  governed  in  much  the  same 
way..  The  Praetorian  Praefect  would  answer  precisely  to  the 
Governor-General,  the  Vicars  to  the  Governors,  Lieutenant- 
Governors,  and  Chief  Commissioners  of  the  different 
Indian  provinces.  The  rulers  of  the  Koman  provinces  would 
answer  to  the  commissioners  of  divisions.  The  civitas  with 
its  territorium  would  correspond  to  a  district.  The  officers  of 
the  civitas  differed  widely  from  the  Indian  magistrate  of  the 
district  and  his  subordinates,  as  they  were  natives  of  their 
city,  and  permanent  residents  in  it ;  but  the  eirenarcha  or 
princeps  pads  discharged  some  of  the  duties  of  the  magistrate 
of  the  district,  and  the  milites  stationarii,  with  their  decurions 
and  centurions,  answered  precisely  to  the  thannahdars,  or 
officers  in  charge  of  police  stations. 

There   were   two   modes    of    prosecuting    crimes,    public 
prosecutions  and  private  prosecutions.     Of  these  the  private 


PROSECUTIONS   UNDEE  THE  EMPIRE.  43 

prosecutions  have  left  the  strongest  traces  in  history,  as  the  Chap.  II. 
great  political  cases  which  occur  in  the  early  history  of 
Rome,  and  of  some  of  which  the  speeches  of  Cicero  are 
monuments,  were  for  the  most  part  prosecuted  in  this 
manner.  Public  prosecutions  as  carried  on  under  the 
Empire  were  no  doubt  the  ordinary  course  for  the  adminis- 
tration of  justice,  and  as  the  trials  which  took  place 
attracted  comparatively  little  attention,  and  left  no  monu- 
ments behind  them,  the  whole  subject  has  fallen  into 
oblivion.  As,  however,  if  any  part  of  the  Rnman  system 
influenced  our  own  institutions  it  must  have  been  this, ,  I 
will*  consider  it  first. 

Public  Prosecutions  under  the  Empire. — ^When  a 
crime  was  committed  which  disturbed  the  public  peace, 
it  was  the  duty  of  the  milites  stationarii  to  apprehend  the 
suspected  persons,  and  to  carry  them  before  the  eirenarcha, 
whose  duty  closely  corresponded  to  that  of  an  English 
justice  of  the  peace,  as  may  be  gathered  from  the  following 
remarkable  passage  of  Marcian.  ^  "  Hadrian  wrote  to  Julius 
"  Secundus,  and  there  are  rescripts  to  the  same  effect  that 
"the  ^letters  of  magistrates  who  send  prisoners  to  the 
"president  as  if  they  were  already  convicted  are  not  to  be 
"  taken  as  conclusive.  A  chapter  of  an  order  is  still  extant, 
"  by  which  Antoninus  Pius  when  President  of  Asia,  enacted 
"in  the  form  of  an  edict,  that  the  eirenarchas,  when  they 
"  apprehended  robbers,  should  question  them  about  their 
"  accomplices  and  receivers,  and  send  their  examination 
"inclosed  in  a  letter"  (also  called  elogium),  "and  sealed  up 
"for  the  information  of  the  President.  Persons  sent  up 
"with  an  "elogium"  are  to  have  a  full  trial"  {ex  integro 
audimdi),  "although  they  have  been  sent  with  a  letter  from 
"  the  eirenarcha,  or  even  brought  by  him.  So  too,  both  Pius 
"and  other  princes  ordered  that  even  those  who  were 
"  reported  for  punishment  *  are  to  be  tried,  not  as  if  they 
"  were  convicted,  but  from  the  beginning  if  there  is  any  one 

1  The  chief  authorities  for  this  are  Pothier's  preface  to  the  47th  book  of  the 
Digest,  and  Godefroy's  ParatUlon  to  the  Ninth  Book  of  the  Theodosian  Code. 

2  Dig.  xlviii.  3,  6. 

3  They  were  called  "elogium,"  "notoria,'"  or  "notaria.  ' 
^  "Qui  requirendi  annotati  sunt." 


44  EOMAN  PRELIMINARY  PROCEDURE. 

Chap.  II.  "  to  accuse  them.  Therefore,  whoever  tries  them  ought  to 
"send  for  the  eirenarcha  and  require  him  to  prove  the 
"contents  of  his  report.  If  he  has  done  it  diligently  and 
"  faithfully  he  must  be  ^  commended ;  if  he  has  acted  hastily 
"  and  2  without  careful  inquiry,  it  must  be  officially  noted  that 
"  the  eirenarcha  acted  hastily,  but  if  it  appears  that  he  ques- 
"  tioned  "  (probably  tortured)  "  the  defendant  maliciously, 
"  or  reported  what  was  not  said  as  if  it  had  been  said,  the 
"  eirenarcha,  is  to  be  punished  for  the  sake  of  example,  so  as 
"to  prevent  other  things  of  the  same  sort  in  future." 

This  remarkable  passage  provides  us  with  an  outline  of 
the  procedure  adopted  in  comm&n  cases  of  crime.  The 
miles  stationarius  or  his  inferior  officer  arrests.  The  eiren- 
archa holds  a  preliminary  investigation  (probably  with  the 
aid  of  torture)  and  commits  for  trial  (as  we  know  from  other 
texts  referred  to  below)  to  the  prison  of  the  civitas,  which 
may  perhaps  be  described  as  the  county  town,  of  the  terri- 
torium  in  which  the  offence  was  committed.  He  acts  to 
some  extent  as  a  public  prosecutor,  as  English  justices  did 
in  the  days  of  the  Stuarts,  and  as  Indian  magistrates  still 
do  in  many  cases.  The  trial  took  place  before  the 
prseses,  who,  like  Indian  Commissioners  of  Divisions  in  some 
parts  of  India,  and  till  lately  throughout  all  Northern  India, 
exercised  the  powers  of  a  judge  of  assize,  and  made  a  circuit 
to  the  different  civitates  in  order  to  dispose  of  the  business. 
The  prsBses,  as  the  passage  under  consideration  shows,  had 
before  him  the  eirenarcha's  report,  and  copies  of  the  de- 
positions just  as  an  English  judge  of  assize  has  the  depositions 
taken  before  the  magistrate.  The  prseses  seems  to  have 
exercised  over  the  eirenarcha  and  his  preliminary  procedure 
a  greater  degree  of  discipline  and  superintendence  than  is 
exercised  by  any  one  over  an  English  justice,  or  even  over 
an  Indian  magistrate,  subject  though  the  latter  is  to  an 
exceedingly  strict  system  both  of  appeal  and  supervision. 

Private  Prosecutions  under  the  Empire. — Crimes 
might  be  prosecuted  under  the  Empire  as  well  as  under 
the  Kepublic  by  a  private  prosecutor.  In  such  cases  the 
procedure   closely    resembled  that    which   was   pursued   in 

'  Qy.  "confirmed."  '  Noii  exquisitis argumentis. 


ROMAN   ACCUSATIONS.  45 

purely  civil  actions,  indeed,  the  action  for  a  ^privatum  delictum  Chap.  II. 
— for  instance,  a  prosecution  for  a   common  theft  differed 
from  other  civil  actions  only  as  such  actions  differed  from 
each  other. 

With  regard  to  accusations  of  public  crimes  by  private 
persons,  the  system  was  as  follows  :— 

Any  one  might  act  as  an  accuser  except  women,  minors, 

soldiers,  persons  convicted  of  crime,  and  some  others.     These 

excepted  persons  however,  might  prosecute  in  cases  in  which 

they  were  interested.  "  Si  suam  injuriam  exequantur  mortemve 

propinquorum  defendant  ab  accusatione  non  excluduntur." 

All  persons  ^  except  the  praeses  of  the  province  during  his 
tenure  of  office,  and  ^magistrates  absent  in  good  faith  on 
public  duties,  were  liable  to  accusation. 

Under  the  Empire  the  accusation  was  made  at  Kome  before 
the  prsefect  of  the  city,  and  in  the  provinces  before  the  praeses. 
In  each  case  the  judge  took  cognizance  of  crimes  committed 
within  his  district. 

^  The  accuser  cited  the  accused  before  the  praeses,  and 
obtained  the  leave  of  the  praeses  to  prosecute.  The  parties 
appeared  before  the  judge.  The  accuser  took  an  oath  that 
his  accusation  was  not  calumnious,  and  stated  the  nature  of 
his  accusation.  If  the  accused  did  not  deny  its  truth  he 
was  held  to  have  pleaded  guilty.  If  he  denied  it  his  name 
was  entered  on  a  register  of  accused  persons,  and  the 
accuser  filed  an  indictment — lihellus.  The  form  was  thus : 
*  "  Consul  et  dies.  Apud  ilium  praetorem  vel  proconsulem 
"  Lucius-Titius  professus  est  se  Maeviam  lege  Julia  de  Adul- 
"teriis  ream  deferre,  quod  dicat  eam  cum  Gaio  Leio  in 
"  civitate  ilM,  domo  illius,  mense  illo,  consulibus  illis,  adui- 
"  terium  commississe."  It  was  we  are  told  necessary  to  state 
the  place,  person,  and  month  of  the  offence,  but  not  the  day 
or  hour.  Aggravations  of  the  offence  were  to  be  stated  in  the 
libel,  and  it  was  to  be  signed  by  the  accuser,  who  was  liable 
to  the  penalty  of  retaliation  if  his  accusation  failed.  If  this 
provision  was  acted  upon  it  must  practically  have  put  a  stop  to 
private  accusations,  ^  but  there  is  some  evidence  that  the  ^pcena 

1  Dig.  xlviii.  2,  ,J1.-  ^  lb.  2,  12.  '  PotMer,  iv.  397. 

*  Dig.  xlviii.  2,  3.  °  Coote's  Bomaiis  in  Britain,  307,  308. 


4-6  EOMAN   TRIALS. 

Chap.  II.  talionis  vfas  practically  only  a  penalty  which  might  be  reduced 
by  the  judge  in  his  discretion  to  a  money  fine. 

The  indictment  might  apparently  be  amended  if  an  ex- 
tension of  time  was  allowed  by  the  judge  for  that  purpose. 

The  accuser  was  also  bound  over  to  prosecute,  and  if  he 
did  not  appear  he  was  not  only  liable  to  be  punished  in 
the  discretion  of  the  judge,  but  had  to  pay  all  the  defendant's 
costs,  including  his  travelling  expenses. 

A  day  was  then  fixed  for  the  Judicium,  and  under  the 
Republic  judices  were  appointed,  a  proceeding  which  had 
some  resemblance'  to  the  appointment  of  a  jury.  It  is 
difficult  to  say  how  long  this  system  lasted,  or  who  the 
judices  were,  especially  under  the  Empire. 

The  Trial. — The  court  being  constituted,  a  certain  time 
was  allowed  for  the  production  of  witnesses  and  documents, 
the  witnesses  being  liable  to  be  both  examined  in  chief  and 
cross-examined.  It  is  difficult  to  say  whether  each  side  was 
allowed  to  call  witnesses  to  facts.  Pothier's  opinion,  founded 
on  a  passage  of  ^Quintilian,  is  that  both  sides  might  call 
witnesses,  but  that  the  prosecutor  only  could  compel  their 
attendance.     The  following  is  the  passage  from  Quintilian  : — 

"  Duo  genera  sunt  testium,  aut  voluntariorum,  aut  eorum 
"  quibus  judex  in  publicis  judiciis  lege  denuntiari  solet, 
"  quorum  altero  utraque  pars  utitur,  alteram  accusatoribus 
"  tantum  concessum  est." 

That  either  party  to  a  criminal  prosecution  should  be 
debarred  from  calling  witnesses  is  so  repugnant  to  our  con- 
ceptions of  justice,  that  it  seems  at  first  difficult  to  imagine 
that  such  could  ever  have  been  the  rule  under  any 
moderately  civilized  system.  It  will,  however,  be  shown 
^hereafter  that  trial  by  jury  in  its  original  form  dispensed 
with  witnesses  altogether ;  that  under  the  civil  law  as 
administered  all  over  the  Continent  down  to  recent  times 
the  prosecutor  only  could  call  witnesses ;  and  that  in 
England  the  prisoner's  right  to  call  witnesses  upon  equal 
terms  with  the  Crown  was  not  established  till  the  reign  of 
Queen  Anne,     s  After  the  examination  of  the  witnesses  was 

1  Inst.  V.  7.  =  See  pp.  349-53,  infra. 

3  Mr.  Trollope,  in  hig  interestiug  Life  of  Cicero,  observes  that  the  prisoner 


ROMAN   TRIALS — TORTURE.  47 

complete,  the  parties  or  their  counsel  (patroni)  made  speeches,  Chap.  II. 
of  the  character  of  which  miich  may  be  learnt  from  Cicero's 
orations,  and  from  Quintilian's  Institutes,  but  of  which  nothing 
need  be  said  here.  ^  The  accused  was  allowed  to  call  witnesses 
to  character  (laudatores).  Finally,  the  decision  was  given, 
at  the  time  when  judices  were  appointed,  by  the  vote  of  the 
judices  by  ballot,  afterwards  probably,  or  in  cases  where  there 
were  no  judices,  by  the  prseses. 

If  the  accused  was  acquitted  the  accuser  might  be  con- 
victed of  calumny  if  the  judge  thought  he  had  brought  his 
accusation  from  improper  motives.  ^  "  Non  utique  qui  non 
"probat  quod  intendit  protinus  calumniari  videtur.  Nam 
"  ejus  rei  inquisitio  arbitrio  cognoscentis  committitur  qui  reo 
"  absolute,  de  accusatoris  incipit  consilio  quserere  qua  mente 
"ductus  ad  accusationem  processit  et  si  quidem  justum 
"  errorem  reperirit  absolvit  eum ;  si  vero  in  evidenti  calumniji 
'■'eum  deprehenderit  legitimam  poenam  ei  irrogat."  The 
original  punishment  for  calumny  was  branding  the  offender 
with  a  K  on  the  face.  Constantine  enacted  that  instead  of 
the  face  the  hands  and  calves  of  the  legs  should  be  branded. 
The  calumniator  was  also  subjected  to  retaliation. 

Torture. — The  only  further  observation  I  have  to  make 
upon  the  Roman  criminal  procedure,  relates  to  the  use  of 
torture.  It  formed  an  essential  part  of  the  procedure  under 
the  Empire,  though  the  Digest  contains  passages  which  show 
that  it  was  used  with  caution,  and  reserved  in  most  cases  for 
slaves.  An  edict  of  Augustus  still  remains  which  lays  down 
a  general  principle  on  the  subject:  ^ " Qugestiones  neque 
"  semper  in  omni  caus^  et  persona  desiderari  debere  arbitror. 
"  Et  quum  capitalia  et  atrociora  maleficia  non  aliter  ex- 
"  plorari  et  investigari  possunt  quam  per  servorum  qua3stiones; 
"  efficacissimas  eas  esse  ad  requirendam  veritatem  existimo 
"  et  habendas  censeo." 

The  commonest  case  for  the  application  of  torture  was  that 

was  not  allowed  to  call  witnesses.  He  allows  me  to  say  tliat  his  opinion, 
formed  after  a  careful  study  of  Cicero's  orations,  is  that,  whatever  the  law  upon 
the  subject  may  have  been,  there  are  no  traces  in  the  orations  of  any  accused 
person  having  actually  done  so.  I  have  not  myself  studied  them  from  this 
point  of  view. 

1  Pothier,  iv.  399.  2  Dig,  xlviii.  16,  3,  1.  »  lb.  18,  8. 


48 


TORTURE  OF  SLAVES  AND  OTHERS. 


Chap.  II.  of  slaves  who  were  liable  to  be  tortured  when  their  owners 
were  suspected  of  offences.  ^ "  Ad  tormenta  servorum  ita 
"  demum  venire  oportere  cum  suspectus  est  reus,  et  aliis 
"  argumentis  ita  probationi  admovetur  ut  sola  confessip 
"  servorum  deesse  videatur."  The  accused  himself  might 
however  be  tortured,  and  that  repeatedly,  if  the  evidence 
against  him  was  strong,  but  not  otherwise.  2"  Reus  eviden- 
"  tioribus  argumentis  oppressus  repeti  in  quEestionem  potest, 
"  maxime  si  in  tormenta  animum  corpusque  duraverit.  In 
"  e§,  caus&  in  qnk  nullus  reus  argumentis  urgebatur  tormenta 
"  non  facile  adhibenda  sunt :  sed  instandum  accusatori  ut  id 
"  quod  intendat  comprobet  atque  convincat."  ^The  torturer 
was  not  to  ask  leading  questions,  "  Qui  qusestionem  habiturus 
"  est  non  debet  specialiter  interrogare  an  Zucius  Titius  homi- 
"  cidium  fecerit,  sed  generaliter  quis  id  fecerit,  alteram  enim 
"  magis  suggerentis  quam  requirentis  videtur."  The  evidence 
obtained  by  torture  was  to  be  received  with  caution,  *"Quses- 
"  tioni  fidem  non  semper  nee  tamen  nunquam  habendam : 
"  constitutionibus  declaratur.  Etenim  res  est  fragilis  et 
"  periculosa  et  quae  veritatem  fallat.  Nam  plerique  patientia 
"  sive  duritia  tormentorum  ita  tormenta  contemnunt  ut  ex- 
"  primi  iis  Veritas  nuUo  modo  possit :  alii  tanta  sunt 
"  impatientia  ut  quo  vis  mentiri  quam  pati  tormenta  velint ; 
"  ita  fit  ut  etiam  vario  modo  fateantur  ut  non  tantum 
"  se  verum  ,etiam  alios  comminentur." 

Such  was  the  Roman  law  as  to  the  definition  of  crimes, 
and  the  procedure  for  their  punishment.  It  exercised  greater 
or  less  influence  on  the  corresponding  part  of  the  law  of 
every  nation  in  Europe,  though  in  all  it  was  far  more  deeply 
and  widely  modified  by  legislation  than  any  other  part  of  the 
Roman  jurisprudence.  Perhaps  it  was  preserved  with  less 
alteration  in  Holland  than  elsewhere,  as  may  be  seen  by 
reference  to  Grotius  and  Voet's  commentary.  It  still  retains 
a  sort  of  vitality  in  the  colonies  conquered  by  England  from 
the  Dutch,  though  in  _  Holland,  as  in  other  parts  of  the 
Continent  of  Europe,  it  has  been  superseded  by  more  modern 
legislation. 


^  Dig.  xlviii.  18,  1, 1. 


=  lb.  18,  18,  1. 
■'  lb.  18, 1,  23. 


»  lb.  18,  1,  21. 


INFLUENCE  OF  ROMAN   CRIMINAL   LAW  IN   ENGLAND.  49 

How  far  the  system  described  in  the  Digest  was  ever  in  Chap.  il. 
force  in  England  is  a  problem  which  I  suppose  can  never  be 
solved.  The  German  conquest  took  place  in  the  fifth  century, 
the  Roman  forces  having  been  finally  withdrawn  in  409 
(Gibbon,  ch.  xxxi.).  The  Theodosian  Code  was  compiled 
not  long  afterwards,  and  the  Digest  as  we  have  it,  between 
530  and  533.  As,  however,  they  were  both  founded  on  the 
existing  law  of  the  Roman  Empire,  and  as  there  is  no  reason 
to  suppose  that  Britain  was  treated  differently  from  the  other 
provinces,  it  is  natural  to  suppose  that  the  system  described 
above  obtained  here  as  well  as  elsewhere.  Whether  any 
portion  of  it  survived  the  German  conquest,  and  so  infiuenced 
the  earlier  and  ultimately  the  existing  English  law  is  a 
question  of  purely  antiquarian  interest.  In  the  laws  made 
before  the  Conquest  some  expressions  occur  which  have  been 
taken  from  the  Roman  Law,  but  the  important  influence 
of  Roman  upon  English  law  was  exercised  through  the 
founders  of  the  English  common  law  long  after  the  Norman 
conquest.  Glanville  and  Bracton,ibut  especially  Bracton,  are 
full  of  references  to  it,  and  indeed  derived  most  of  their 
'  definitions  and  principles  directly  from  it,  although  it  had 
little  or  no  assignable  influence  on  the  modes  of  procedure. 
These  were  derived  from  other  sources. 

It  is  observed  with  great  truth  by  ^  Rossi  that  there  is  a  close 
analogy  between  the  manner  in  which  Roman  and  English 
laws  were  developed.  In  each  the  system  in  its  origin  con- 
sisted of  crude  and  vague  definitions  gradually  manipulated 
into  a  sort  of  system  by  legislation,  especially  by  judicial 
legislation.  The  English  system  has  at  the  present  day  had 
a  history  of  about  600  years,  if  we  take  Bracton  as  the 
earliest  writer  who  can  now  be  regarded  as  in  any  sense  an 
authority.  The  interval  between  the  Twelve  Tables  and  the 
compilations  of  Justinian  was  about  a  thousand  years ;  but 
legislation  was  resorted  to  much  more  extensively,  and  at  a 
much  earlier  date  in  the  history  of  the  Roman  criminal  law 
than  in  the  history  of  our  own.  The  various  leges  Julice  may 
be  not  at  all  unfairly  compared  to  the  Consolidation  Acts  of 
1861,  and  they  were  passed  about  three  centuries  after  the 
'  Traite  du  Droit  Pinal,  p.  49. 
VOL.    I.  ^' 


50  CHARACTER   OF  ROMAN  CRIMINAL   LAV/. 

Chap:  II.  legislation  contained  in  the  Twelve  Tables.  I  do  not  tHnk 
that  the  Roman  criminal  law,  as  stated  in  the  authorities 
from  which  the  preceding  account  has  been  extracted,  con- 
tains anything  which  can  justify  the  loose  popular  notion 
that  Eoman  law  is  peculiarly  complete  and  scientific.  In 
the  absence  of  the  text  of  the  laws  themselves,  it  is  difficult 
to  form  an  opinion  on  the  subject ;  but  it  would  be  idle  to 
oompai'e  the  heap  of  extracts  collected  in  the  Digest,  and 
thrown  together  with  no  arrangement  whatever,  even  with  so 
clumsy  a  compilation  as  Bussell  on  Crimes.  It  is  infinitely 
less  copious.  It  does  not  go  into  anything  like  such  full  detail, 
and  it  is  certainly  not  better  arranged,  though  Russell  on  Crimes 
is  arranged  exceedingly  ill.  The  notion  of  extracting  from 
the  works  of  the  jurists  a  set  of  definite^  well  stated^  an4 
duly  qualified  principles,  and  arranging  them  in  their  natural 
order  in  a  complete  coherent  system,  does  not  appear  to 
have  presented  itself  to  Tribonian  and  his  assistants,  any 
more  than  it  has  to  the  great  mass  of  writers  on  English  law. 
There  is  a  close  resemblance  between  the  two  systems,  and  a 
resemblance  all  the  more  curious  and  interesting  because  the 
direct  effect  of  the  earlier  on  the  later  system,  though  still 
traceable,  was  small,  but  the  resemblance  is  to  be  traced  at 
least  as  distinctly  in  the  defects  of  the  two  systems  as  in 
their  merits. 


EARLY  ENGLISH  CRIMINAL   LAW. 


CHAPTER  III. 

EARLY   ENGLISH  CRIMINAL   LAW. 

It  is  a  matter  of  great  difficulty,  indeed  I  think  it  would  CHAr.  iii. 
be  impossible,  to  give  a  full  and  systematic  account  of 
the  criminal  law  which  prevailed  in  England  in  'early 
times.  The  original  authorities  are  scanty,  and  all  presume 
the  existence  of  the  very  knowledge  of  which  we  are  in 
search.  Both  the  laws  of  the  early  kings  and  our  own 
statute  book  presuppose  knowledge  of  an  unwritten  law.  Our 
own  unwritten  law  can  still  be  ascertained,  but  such  parts 
of  the  earlier  law  as  were  not  written  have  absolutely 
disappeared.  The  collection  of  Ancient  Laws  and  Institutes 
of.  England,  published  by  Mr.  Thorpe,  under  the  direction  of 
the  Record  Commissioners,  contains  in  aU  forty-seven  sets  of 
laws,  or  partly  ecclesiastical,  partly  secular  statutes,  bearing 
the  names  of  '^  fourteen  different  rulers.  Of  these  the  Leges 
Henrici  Frimi,  though  the  least  authentic,  are,,  perhaps,  the 
most  instructive.  They  are  obviously  a  compilation  made  in 
the  time  of  Henry  I.,  by  some  private  person,  of  the  laws  then 
in  force,  or  supposed  to  be  in  force,  among  the  English.  They 
form  a  sort  of  digest,  collecting  into  one  body  many  things  to 
be  found  in  the  earlier  enactments,  as  well  as  a  good  deal  of 
matter  which  is  not  to  be  found  there,  but  is,  at  all  events  in 
many  places,  extracted  from  the  Civil  and  Canon  law.  It  also 
contains  several  express  references  to  the  Salic  Law,  and  the 

1  1.  ^thelbirht.  2.  Alothhsre  and  Eadric.  3.  Wihtrffid.  4.  Alfred.  5. 
Ina.  6,  Edward  (the  Elder).  7.  Ethelstan.  8.  Edmund.  9.  Edgar. 
10.  Ethelred.  11.  Onut.  12.  Edward  the  Confessor.  13.  "William  the 
Conqueror.  14.  Leges  Henrici  Primi.  The  references  to  Thorpe  are  to  the 
8vo  edition  in  two  volumes. 

K    2 


52  LEGES    HENEICI   PRIMI. 

Chap.  III.  law  of  the  Ripuarian  Franks.  It  is  a  slovenly  composition, 
full  of  inconsistencies,  repetitions,  and  distinctions  un- 
necessary in  themselves,  and  forgotten  as  soon  as  they  are 
made.  With  all  its  defects,  however,  the  work  probably 
gives  us  better  means  than  any  other  now  extant  of  forming 
an  opinion  as  to  the  nature  of  law  amongst  the  early 
English.  1  The  general  impression  which  it  makes  is  that 
they  had  an  abundance  of  customs  and  laws  sufficiently 
well  ascertained  for  practical  purposes,  but  that  when  any- 
thing in  the  nature  of  a  legal  principle  or  definition  was 
required  they  were  quite  at  the  mercy  of  any  one  whom  they 
respected  as  a  learned  man,  and  who  was  prepared  to  lay 
down  any  such  principle  or  definition  upon  or  without  any 
authority  whatever.  Eonian  law  must  have  been  the  source 
from'  which  such  definitions  and  principles  were  drawn, 
because  no  other  was  then  in  existence.  At  what  time,,  by 
whom,  in  what  degree  these  principles  and  definitions  were 
first  introduced,  how  far  locally  they  extended,  how  far  they 
varied,  are  questions  which  will  probably  never  be  answered, 
and  are  of  no  importance,^ 

The  laws  of  the  different  kings  closely  resemble  each 
other  in  their  general  outline.  Indeed,  they  are,  to  a  great 
extent,  re-enactments  of    each    other,    with   additions   and 

^  The  laws  of  Edward  the  Confessor  were  collected,  as  their  title  states,  in 
the  fourth  year  after  the  Conquest,  when  "William.  ' '  Fecit  summoniri  per 
"  uniyersos  patriae  comitatus  Anglos  nobiles  sapientes,  et  in  lege  su& 
"  eruditos  ut  eorum  consuetudines  ab  ipsis  audiret." 

^  There  is  a  work  called  the  Mirror,  which  has  been  regarded  as  throwing 
light  on  the  principles  and  definitions  of  the  early  English  laws,  and  as  showing 
that  they  were  of  Eoman  origin.  It  certainly  is  a  curious  book,  but  I  cannot 
myself  attach  much  importance  to  it.  It  was  written  not  earlier  than  13 
Edw.  1  (A.D.-1285),  as  itrefers  to  a  statute  passed  in  that  year,  but  it  contains 
all  sorts  of  assertions  about  Alfred,  and  in  particular  a  specification  of  forty 
judges,  whom  he  is  said  to  have  hanged  as  murderers,  for  putting  different 
people  to  death  unjustly.  It  also  contains  a  number  of  what  profess  to  be 
indictments,  or  rather  appeals,  as  the  author  calls  them.  It  is  difficult, 
to  me  at  least,  to  understand  how  the  assertions  of  a  writer  of  the  end  of 
the  thirteenth  century,  who  gives  no  authorities,  can  be  regarded  as  of  any 
weight  about  the  details  of  transactions  said  to  have  occurred  400  years  before, 
and  which  are  noticed  by  no  one  else.  Alfred's  laws  do  not  even  mention 
judges,  nor  do  they  in  any  respect  confirm  the  strange  assertions  of  the 
Mirror.  My  conjecture  would  be  that  the  part  of  the  Mirror  which  relates 
to  the. laws  of  Alfred,  &c.,  is  simply  an  invention.  One  of  the  author's  objects 
was  to  protest  against  judicial  corruption  and  other  abuses  of  his  time,  and 
his  assertion  that  Alfred  executed  forty  specified  judges  for  specified  offences 
was  probably  made  as  a  suggestion  as  to  what  ought  to  be.  See  some 
remarks  on  this  book  by  Sir  F.  Palgrave,  ii.,  cxiii. 


EARLY   ENGLISa   CKIMINAL   LAW.  53 

variations;  and  most  of  them  contain  a  greater  or  less  ad-  Chap. ill. 
mixture  of  moral  and  religious  exhortation.      The  laws  of      ~~ 
Alfred,  for  instance,  begin  with  the  Ten  Commandments, 
an  adaptation   of    considerable  parts    of  Exodus,    extracts 
from  the  Acts,  and  a  historical  statement  as  to  the  diffusion 
of  Christianity. 

To  extract  anything  complete  or  systematic  from  such 
materials  is  obviously  impossible.  There  is,  indeed,  an 
abundant  supply  of  modern  literature  upon  the  subject,  but 
it  is  impossible  to  read  it  without  perceiving  that  the  results 
arrived  at  are,  to  a  great  extent,  conjectural,  and  that  the 
most  learned  and  acute  writers  have  frequently  given  to  the 
public  rather  proofs  of  their  own  learning,  industry,  and  in- 
genuity, than  definite  information.  Moreover,  questions 
about  the  early  English,  which  bear  upon  the  origin  of  the 
popular  parts  of  our  government,  parliament,  and  trial  by 
jury,  have  been  debated  with  no  small  share  of  the  heat 
which  attaches  to  all  political  controversy. 


I.   EAELY  ENGLISH   CRIMES. 

Pursuing  the  division  of  the  subject  already  adopted,  I  will 
first  describe,  as  well  as  I  can,  the  early  English  doctrines 
on  the  subject  of  crimes,  and  next  the  system  of  criminal 
procedure  then  in  force. 

So  far  as  I  have  been  able  to  discover  there  are  hardly 
any  definitions  of  crimes-  in  the  early  laws,  but  they 
contain  provisions  of  one  sort  or  another  about  a  large 
proportion  of  the  offences  which  would  be  defined  in  a 
modern  criminal  code. 

The  following  are  the  principal  offences  against  the  Govern- 
ment referred  to  in  the  laws.  ^"Plotting  against  the 
"  king's  Hfe,  of  himself,  or  by  harbouring  of  exiles  or  of 
"his  men."  ^"Plotting  against  a  lord."  ^Fighting  in  a 
"church,  or  in  the  king's  house."     *" Breaking  the  king's 

1  Alfred  i  ;  Thorpe,  i.  63.  ^  Ethelstan  4 ;  Thorpe,  i.  203. 

3  Ethelred,  vii.  9 ;  Thorpe,  i,  331  ;  Cnut,  60 ;  Thorpe,  i.  409. 
*  This  is  mentioned  in  nearly  all  the  laws,  e.g.  Ethelred,  vii.  11 ;  Thorpe, 
i.  331 ;  Cnut,  12 ;  Thorpe,  i.  383. 


54  ANGLO-SAXON   CRIMES. 

Chap.iii.  "peace  (frith,  or  grith)  or  protection  (mundrhryce)-."  ^In 
several  of  the  laws  there  is  mention  of  overseunesse  or 
oferhynes.  This  seems  to  have  been  a  general  expres- 
sion, including  whatever  we  should  call  contempt,  and 
also  disobedience  to  lawful  authority,  especially  by  public 
officers.  5  Thus,  "  Qui  justum  judicium  ordinabiliter  habi- 
"  turn  et  legitime  redditum  improbaverit  overseunesse  Ju- 
"  dicetur  L.  sol.  in  Westsexa,  si  erga  comitem  XL.  gol.,  &c." 
"  *  Si  quis  a  justicia  regis  implacitatus  ad  consilium  exierit, 
"  et  ad  inculpacionem  non  responderit  XX.  marce  vel  over- 
"  seunesse  regis  culpa  sit.'' 

Of  offences  against  public  justice  ^perjury  is  mentioned  on 
several  occasions.  Offences  against  religion  and  morals  are 
dealt  with  at  length  in  the  ecclesiastical  ordinances,  but  they 
are  also  mentioned  frequently  in  the  secular  ordinances. 
Heathenism  is  thus  defined :  ®  "  Heathenism  is  that  men  wor- 
"  ship  idols,  that  is,  they  worship  heathen  gods  and  the  sun 
"  or  the  moon,  fire  or  rivers,  water-wells  or  stones,  or  forest 
"  trees  of  any  kind."  Many  of  the  laws  contain  provisions 
as  to  different  forms  of  unchastity,  adultery,  incest  and  even 
simple  fornication.  ®By  a  law  of  Cnut's  a  woman  was  to 
"  forfeit  both  nose  and  ears  "  for  adultery.  ''  Procuring  abor- 
tion seems  to  have  been  regarded  as  an  ecclesiastical  offence 
only.  *  Some  provisions  occur  as  to  witchcraft,  and  "  making 
"  offerings  to  devils."  The  only  offence  at  all  resembling  a 
public  nuisance  which  I  have  noticed  is  Stredbreche,  which  is 
thus  defined  in  the  Leges  Henrici  Primi :  ^ "  Stredbreche  est  si 
"  quis  viam  frangat  concludendo,  vel  avertendo,  vel  fodiendo." 
Offences  against  the  persons  of  individuals  are  most 
minutely  provided  for  by  some  of  the  laws,  which  contain 
provisions  as  to  homicide,  different  kinds  of  wounds,  rape, 
and  indecent  assaults.  The  definitions  of  these  offences 
are  assumed,  but  there  are  a  few  passages  which  to 
some    extent    recognize    a    distinction    analogous   to    ours 

1  Thorpe,  i.  537 ;  Hen.  1,  xxxiv.  3  ;  Thorpe,  i.  551,  593  ;  He«.  1,  liii.  1  ; 
Ixxxvii.  5. 

2  Thorpe,  i.  537.  3  Thorpe,  i.  638  ;  Hen.  1,  xlviii.  1. 
*  Edw.  3  ;  Eth.  v.  25  ;  vi.  28,  &c.     Hen.  1,  xi.  6  ;  Thorpe,  i.  521. 

•'  Cnut,  5  ;  Thorpe,  i,  379,  and  see  Edward  and  Guthrum  2  ;  Thorpe  i.  169. 
>•  Cnut,  54  ;  Thorpe,  i.  407.  '  Hen.  1,  Ixx.  16  ;  Thorpe,  i.  574. 

»  Wiht.  12,  13,  &c.  ;  Thorpe,  i.  41.        »  Jxxx.  5  ;       orpe,  i.  586. 


OFFENCES  AGAINST  THE  PERSON.  55 

between:    inurder    and    killing    by    negligence.      The    dis-  Chap.  Ill, 
tinction   between    murder    and    manslaughter,   as   we   now 
understand  it,  is,  I  think,  much  more  modern.     The  laws 
of  Alfred  embody  the  provisions   of  Exodus  xxi;  12 — 15. 
They  also  provide  for  cases  of  accident  or  negligencei     ^ "  If 
"  at  their  common  work  one  man  slay  another  unwilfuUy, 
"  let  the  tree  be  given  to  the  kindred,  and  let  them  have 
"  it    off   the    land    within    xxx.    days,    or    let    him    take 
"  possession  of  it  that  owns  the  wood  " — a  provision  which 
assumes  that    the    commonest    case    of    accidental    death 
was  the  felling  of  timber.     ^ "  If  a  man  have  a  spear  oVer 
his  shoulder  and  any  man  stake  himself  upon  it  that  he  " 
(the  man  with  the  spear)  "  pay  the  were  "  (compensation  to 
the  party).  "  without  the  wite  "  (the  fine  to  the  king).    ^  go  m 
the  laws  of  Henry  I.  it  is  laid  down  as  a  general  principle  that 
"qui  inscienter  peccat  scienter  emendet,"  for  which  reason, 
if  any  one  accidentally  kiUs  another  in  any  game  or  exercise, 
or  frightens  a  person  so  that  he  runs  away  and  falls  and  so 
is  killed,  the  person  causing  the  death  is  to  pay  the  were. 
Some  obvious  cases  of  justifiable  homicide  are  also  mentioned. 
One  is  remarkable  because  it  affords  a  clear  instance  of  the 
process  by  which  Roman  law  found  its  way  in  particular  eases 
into  English  law.     *  "  Pugnare  potest  homo  contra  eum  quem 
"  cum  desponsata  sibi  uxore  post  secundam  et  tertiam  pro- 
"  hibitionem  clausis  hostiis  et  sub  una  coopertura,  inveniet. " 
This  is  obviously  adopted  from  the  provision  in  the  novel 
cxvii.  already  noticed.    A  vague  attempt  is  made  in  the  Zeges 
Senrici  Frimi  to  define  homicide,  but  the  writer  arrives  only 
at  a  tolerable  classification  of  the  depees  of  guilt  involved. 
The  passage  is  a  good  specimen  of  the  work  in  which  it 
occurs :  ^  "  Homicidium  fit  multis  modis,  multaque  distancia 
"  in  eo  est  in  causi  et  in  personis.     Aliquando  autem  fit  per 
"  cupiditatem,  vel  contencionem  temporalium,  fit  etiam  per 
"  ebrietatem,  fit  per  jussionem  alicujus,  fit  etiam  pro  defen- 

1  Alf.  13;  Thorpe,  i.  71. 

^  Alf.  36  ;  Thorpe,  i.  85.  I  omit  some  ohscure  expressions  as,  to  the  shape  of 
the  spear.  The  same  law  is  given  more  fully,  but  in  several  parts  indistinctly, 
in  Leg.  H.  1,  c.  Ixxxviii.  ;  Thorpe,  i.  695. 

3  Hen.  1,  Ixxxviii.  6  ;  Thorpe,  i.  595.     *  Hen.  1,  Ixxxii.  8  ;  Thorpe,  i.  591 . 

5  See  ante,  p.  15.  'f  Hen.  1,  Ixxii.  1 ;  Thorpe  i.  577. 


6 


56  HOMICIDE — THEFT. 

Chap.  III.  "  gione  et  justicia,  de  quibus  ita  meminit  beatus  Augustinus, 
"  '  Si  homicidium  est  hominem  occidere,  potest  aliquando 
"  '  accidere  sine  peccato ;  nam  miles  hostem,  et  judex 
"  '  nocentem,  et  cui  forte  m  vita  vel  imprudenti  telum  manu 
"  '  fugit,  non  mihi  videntur  peccare  cum  hominem  occidunt.' 
"  ^  -  .  .  '  Fit  etiam  homicidium  casu  consilio.'  " 

The  crime  of  inflicting  bodily  harm  is  described  in  some 
of  the  laws  with  almost  surgical  minuteness.  Of  the 
seventy-seven  laws  of  Alfred,  no  less  than  thirty-four 
define  the  different  injuries  which  may  be  inflicted  by  un- 
latvful  violence.  Here  is  one  specimen :  ^  "  If  the  great  toe 
"  be  struck  off  let  twenty  shillings  be  paid  him  as  hot.  If 
"  it  be  the  second  toe,  fifteen  shillings.  If  the  middle-most 
"  toe,  nine  shillings.  If  the  fourth  toe,  six  shillings.  If  the 
"  little  toe  be  struck  off  let  five  shillings  be  paid  him." 

Of  offences  against  property  theft  is  the  one  most  com- 
monly referred  to.  I  have  found  no  definition  of  it  in  any 
of  the  laws,  though  I  think  it  may  be  said  to  be  the  subject 
to  which  they  refer  most  frequently.  Some  aggravated 
forms  of  the  offence  are,  however,  distinguished.  Robbery, 
rdberia,  is  frequently  mentioned ;  but  I  think  no  definition 
of  it  is  given.  Forestel  and  hamsocna  are  defined :  *  "  Forestel 
"  est  si  quis  ex  transverse  incurrat  vel  in  via  expectet  et 
"  assalliat  inimicum  suum."  It  is  distinguished  from  a 
challenge  to  fight :  "  Si  post  eum  expectet  vel  evocet  ut  ille 
"  revertatur  in  eum,  non  est  forestel  si  se  defendat." 
Hamsocna  was,  no  doubt,  the  earlier  form  of  burglary. 
* "  Hamsocna  quod  domus  invasionem  Latine  sonat  fit 
"  pluribus  modis.  Hamsocna  est  si  quis  alium  in  su§.  vel 
"  alterius  domo  cum  ^  haraido  assailiaverit  vel  persequatur, 
"  ut  portam  vel  domum  sagittet  vel  lapidet  vel  colpum 
^r,  "  [Lfialpam]  ostensibilem  undecunque  faciat.     Hamsocna  est 

^  Here  follow  quotations  from  Jerome  and  the  Bible. 

^  Alf.  64  ;  Thorpe,  i.  97. 

'  Hen.  1,  Ixxx.  4  ;  Thorpe,  i.  586,  derived  in  Thorpe's  Glossary  from  fore, 
before,  and  stellan,  to  leap  or  spring. 

^  Hen.  1,  Ixxx.  10  ;  Thorpe,  i.  587. 

'  Ewraidvm  =  hen  reita.  The  Bavarian  laws  took  a  distinction  between 
here  reita  and  heimmcht.  For  here  reita  there  must  be  at  least  forty-two 
armed  men.  If  there  were  less  it  was  heimmcU  (Thorpe's  Glossary).  In 
Ina  s  laws  (13  Thorpe,  48)  it  is  said,  "  Thieves  we  call  as  far  as  7  men ;  from 
vu.  to  XXXV.  a  Moth;  after  that  it  is  a  here." 


OFFENCES  AGAINST  PROPERTY.        .         57 

"  vel  hame  fare  si  quis  premeditate  ad  domum  eat  ubi  suum  Chap.  III. 

"  hostem  esse  siet,  et  ibi  eum  invadat  in  die  vel  nocte  hoc 

"  faciat ;    et   qui  aliquem  in  molinum  vel   ovile   fugientem 

"  prosequitur  hamsocna  adjudicatur.     Si  in  curiS,  vel  domo 

"  seditione  orta  bellum  eciam  subsequatur  et  quivis  alium 

"  fugientem  in  aliam  domum  infuget,  si  ibi  duo  tecta  sint 

"  hamsocna  reputatur.     Infiht  vel  insocna  est  quod  ab  ipsis 

"  qui  in  domo  sunt  contubernales  agitur." 

Of  mischievous  offences  against  property  hernet  or  arson 
is  ^  several  times  mentioned,  but  with  no  detail. 

Of  fraudulent  offences  the  only  one  of  much  importance 
or  interest  is  coining.  In  nearly  all  the  laws  the  offences  of 
moneyers  are  referred  to  in  general  terms,  and  as  if  they  were 
well  understood. 

Such  were  the  crimes  known  to  Anglo-Saxon  law.  The 
punishments  appointed  for  them  were  either  fines  or  corporal 
punishment,  which  was  either  death,  mutilation,  or,  in  some 
cases,  flogging.  Imprisonment  is  not,  I  think,  mentioned  in 
the  laws  as  a  punishment,  though  it  is  ^  referred  to  as  a  way 
of  securing  a  person  who  could  not  give  security.  The 
fines  were  called  wer,  hot,  and  vAte.  The  wer  was  a  price 
set  upon  a  man  according  to  his  rank  in  life.  If  he  was 
killed  the  wer  was  to  be  paid  to  his  relations.  If  he  was 
convicted  of  theft  he  had  in  some  cases  to  pay  the  amount 
of  his  wer  to  his  lord,  or  to  the  king.  If  he  was  outlawed 
his  sureties  (horhs)  might  have  to  pay  his  loer. 

Bot  was  compensation  to  a  person  injured  by  a  crime.  It 
might  be  either  at  a  fixed  rate  (angild),  or  at  the  market 
price  of  the  stolen  goods  {ceaf-gild). 

Wite  was  a  fine  paid  to  the  king  or  other  lord  in  respect 
of  an  offence. 

Speaking  generally,  all  crimes  were,  on  a  first  conviction, 
punishable  by  wer,  hot,  and  wite ;  the  wer  being  sometimes 
the  measure  of  the  hot,  or  compensation,  as  where  a  man 
was    murdered    and   compensation  had  to  be  made  to  his 

'  Hen.  1,  Ixvi.  9  ;  Thoi'pe,  i.  670,  and  elsewhere. 

2  "  If  a  friendless  man  or  a  comer  from  afgir  be  so  distressed  tkrough  want 
"  of  friends  that  he  has  no  lorh  (surety)  at  the  fiumtihtU  (first  accusation) 
"  let  him  then  submit  to  prison,  and  there  abide  till  he  goes  to  God's  ordeal, 
"  and   here  let  him  fare  as  he  may." — Cnut,  ii.  36  ;  Thorpe,  i.  397. 


58 


EARLY  ENGLISH  PUNISHMENTS. 


Cpap.iii.  relations ;  and  at  other  times  the  measure  of  the  wite,  as  when 
the  thief,  being  outlawed,  his  sureties  had  to  pay  his  wer  to 
the  king  or  lord.  A  great  part  of  many  of  the  laws  is 
taken  up  by  provisions  fixing  the  amount  of  the  wer  of  dif- 
ferent classes  of  people,  and  the  lot  due  in  particular  cases. 
1  The  wer  is  mentioned  both  in  the  laws  of  the  Conqueror 
and  in  the  ^  Leges  Henrici  ■  Frimij  and  it  also  appea:cs  in 
^  Henry  I.'s  Charter  to  the  citizens  of  London. 

After  a  previous  conviction  hot  might  no  longer  be  made. 

*  "  At  the  first  time  let  him  make  hot  to  the  accuser,  and  to 
"  the  lord  his  wer,  and  let  him  give  true  borhs  that  he  will 
"  hereafter  abstain  from  all  evil.  And  at  the  second  time  let 
''  there  be  no  other  hot  than  the  head." 

A  certain  number  of  cases  were  bot-less  or  inexpiable^ 
and  the  punishment  for  them  was  death  or  mutilation  on 
the  first  ofifence. 

A  passage  in  the  ^  Leges  Henrici  Primi  gives  a  classifica'- 
tion  of  crimes  according  to  their  punishment.  The  laws  of 
Cnut  say  :  ^  "Housebreaking  and  arson,  and  open  theft,  and 
*'  open-morth,  and  treason  against  a  lord  are  by  the  secular 
"  law  6o^-less."  ^  This  is  repeated  in  the  Leges  Henrici  Primi 
with  the  addition  of  "  effraccio  pacis  ecclesia  vel  manus  regis 
•'  per  homicidium." 

The  punishment  upon  a  secojid  conviction  for  nearly  eveiy 
offence  was  death  or  mutilation.  *  In  Ethelred's  laws  it  is 
said  of  the  accused  when  ultimately  convicted — "  let  him  be 
"  smitten  so  that  his  neck  break." 

The  laws  of  Cnut  lay  down  the  principles  on  which  punish- 
ment should  be  administered,  and  also  regulate  the  practice  of 
the  court.    The  principle  is  thus  stated :  "Though  any  one  sin, 

'  "  De  were  ergo  pro  occiso  soluto  primo  vicluse  x.  sol.  dentur  et  residuum 
"  liberi  et  consanguinei  inter  se  dividant.  Poterit  autem  quis  in  were 
' '  solvendo  equum  masculum  uon  castratum  pro  xx.  sol.  dare  et  taurum  pro 
"  X.  sol.  et  verrem  pro  v.  sol."    (Will.  1,  7,  9  ;  Thorpe,  i.  471.) 

^  Hen.  1,  Ixxvi.  is  headed  "  De  preoio  cujuslihet,"  and  begins  thus  :  "  Si 
"  homo  occidatur  si,cut  natus  erit  persolvatur."     (Thorpe,  i.  581.) 

'  "_  Et  homo  hundoniaiTim  non  judicetur  in  raisericordia  nisi  ad  suam  were 
"  scilicet  ad  o.  solidos,  dico  de  placito  quod  adpecuniampertineat."— Stubbs, 
Charters,  108.  *  Ethel,  vi.  1  ;  Thorpe,  i.  281. 

s  Hen.  1,  xii.;  Thorpe,  i.  522.  «  Cnut,  ii.  65  ;  Thorpe,  i.  411.  "Open 
morth"  is  a  contradiction  in  terms,  as  the  meaning  of  "morth"  is  secret 
killing.     It  may  perhaps  mean  a  murder  after  discovery. 

»■  Hen.  1,  xii.;  Thorpe,  i.  522.         «  Ethel,  iii.  4  ;  Thorpe,  i.  295. 


EARLY   EJiTGLISH   PUNISHMENTS.  S9 

"  and  deeply  foredo  himself,  let  the  correction  be  regulated  so  Chap.  III. 
' '  that  it  be  becoming  before  God  and  tolerable  before  the  world. 
"  And  let  him  who  has  power  of  judgment  very  earnestly  bear 
"  in  mind  what  he  himself  desires  when  he  thus  says :  '  Et 

dimitte  nobis  debita  nostra  sicut  et  nos  dimittimus.'  And 
"  we  command  that  Christian  men  be  not  on  any  account 
"for  altogether  too  little  condemned  to  death;  but  rather 
"  let  gentle  punishments  be  decreed  for  the  benefit  of  the 
"  people ;  and  let  not  be  destroyed  for  little  God's  handy- 
"  work,  and  His  own  purchase  which  he  dearly  bought." 

The  practice  of  the  courts  is  regulated  by  the  following 
enactment :  —  "  That  his  hands  be  cut  off,  or  his  feet,  or 
"  both,  according  as  the  deed  may  be.  And  if  he  have 
"  wrought  yet  greater  wrong,  then  let  his  eyes  be  put  out, 
"  and  his  nose,  and  his  ears,  and  his  upper  lip  be  cut  off, 
"  or  let  him  be  scalped ;  whichever  of  these  those  shall 
"  counsel  whose  duty  it  is  to  counsel  thereupon,  so  that 
"  punishment  be  inflicted,  and  also  the  soul  be  preserved." 

Capital  punishment  would  seem  to  have  been  common 
after  Cnut's  time,  notwithstanding  his  ca.utions  against  the 
abuse  of  it,  as  William  the  Conqueror  found  it  necessary 
to  forbid  it.  His  principles  differed  from  Cnut's,  though 
the  practical  result  seems  to  have  been  much  the  same.  ^  He 
says :  "  Interdicimus  etiam  ne  quis  occidatur  vel  suspendatur 
"  pro  aliquS,  culp^  sed  enerventur  oculi  et  abscindantur  pedes, 
"  vel  testiculi,  vel  manus,  ita  quod  truncus  remaneat  yivus 
"  in  signum  proditionis  et  nequitiae  suae." 


II.   EARLY  ENGLISH  ClilMINAL   PROCEDURE, 

The  early  English  'Criminal  Procedure  was  of  two  kinds ; 
namely,  the  law  of  infangthief,  a  procedure  so  summary  as 
hardly  to  deserve  the  name,  and  the  law  of  purgation  and 
ordeal  (urtheiJ),  a  system  which  formed  the  first  step  towards 
our  modern  law.  It  is  natural  to  suppose  that  the  more  civilised 
system  gradually  encroached  upon  and  superseded  the  other.  In 
order  to  explain  their  relation,  it  should  be  remembered  that  in 

1  Will.  3,  17 ;  Thorpe,  i.  49,4. 


6o  PRIVATE  WAR. 

Chap.  III.  early  times  the  really  efiScient  check  upon  crimes,  of  violence 
was  the  fear  of  private  vengeance,  which  rapidly  degenerated 
into  private  war,  blood  feuds,  and  anarchy.  The  institution  of 
the  wer  in  itself  implies  this.  I  have  described  it  in  con- 
nection with  the  subject  of  punishment,  but  it  belongs 
properly  to  a  period  when  the  idea  of  public  punishment 
for  crimes  had  not  yet  become  familiar;  a  period  when  a 
crime  was  still  regarded  to  a  great  extent  as  an  act  of  war, 
and  in  which  the  object  of  the  law-maker  was  rather  to 
reconcile  antagonists  upon  established  terms  than  to  put 
down  crimes  by  the  establishment  of  a  system  of  criminal 
law,  as  we  understand  the  term. 

A  few  authorities  will  show  the  importance  of  private  war 
in  reference  to  the  laws  of  the  early  English.  In  the  laws 
of  Alfred  it  is  enacted,  ^ "  That  the  man  who  knows  his  foe  to 
,  "  be  home-sitting  fight  not  before  he  demand  justice  of  him. 
"If  he  have  such  power  that  he  can  beset  his  _foe  and 
"  besiege  him  within  let  him  keep  him  within  for  seven 
"  days  and  attack  him  not  if  he  will  remain  within."  Several 
other  delays  having  been  provided  for,  the  law  proceeds,  "  if 
"  he  will  not  deliver  up  his  weapons  then  he  may  attack 
"  him."  Liberal  exceptions  are  allowed  to  the  restrictions 
imposed  by  the  law  upon  private  war.  "  With  his  lord  a  man 
"  may  fight  orwige  {i.e.  without  committing  war)  if  any  one 
"  attack  the  lord  :  thus  may  the  lord  fight  for  his  man." 

In  nearly  all  the  laws  provision  is  made  for  the  breach  of 
the  king's,  the  lord's,  or  the  Church's  peace  6r  protection 
{frith-lryce,  mund-bryce)  in  such  a  way  as  to  show  that 
peace  was  an  exceptional  privilege,  liability  to  war  the 
natural  state  of  things.  The  King's  Peace  was  extended  to 
particular  times  and  places,  or  conferred  as  a  favour  on 
particular  persons.  2 « Some  time  after  the  Conquest  all 
"  these  special  protections  were  disused :  but  they  were 
"  replaced  by  a  general  proclamation  of  the  '  King's  Peace,' 

'  Alf.  42  ;  Thorpe,  i.  91. 

*"  Palgrave  i.  285.  A  curious  instance  occurs  in  the  laws  of  the  Conqueror 
(xxvi.  ;  Thorpe,  i.  479).  "In  tiibus  stratis  regiis,  id  est  Wateling  Street, 
"  Ermonge  Strete  et  Fosse"  (the  French  version  says  "quatre  chemins," 
adding  "  Hykenild ")  "qui  hominem  per  patriam  transeuntem  ocoiderit 
"  vel  insultum  fecerit,  pacem  regis  infringit." 


TRIAL  BY  COMBAT.  6 1 

'  which  was   made  when  the   community  assented  to  the  Chap.  III. 

'  accession  of  the  new  monarch :  and  this  first  proclamation 

'  was  considered  to  be  in  force  during  the  remainder  of  his 

'  life,  so  as  to  bring  any  disturber  of  the  public  tranquillity 

'  within  its  penalties.     So  much  importance  was  attached 

'  to  the  ceremonial  act  of  the  proclamation  that  even  in  the 

'  reign  of  John,  offences  committed  during  the  interregnum 

'  or  period  elapsing  between  the  day  of  the  death  of  the 

'  last  monarch  and  the  recognition  of  his  successor  were 

'  unpunishable    in    those    tribunals    whose    authority  was 

'  derived  from  the  Crown." 

When  trial  by  combat  was  introduced  by  William  the 
Conqueror  the  language  used  expressly  treats  it  as  a  modified 
form  of  private  war.  ^ "  Si  Anglicus  homo  compellet  aliquem 
"  Francigenam  per  beUum,  de  furto,  vel  homicidio,  vel  aliqua 
"  re  pro  qua  bellum  fieri  debeat  vel  judicium  inter  duos 
"  homines,  habeat  plenam  licentiam  hoc  faciendi."  Indeed 
trial  by  battle  was  only  private  war  under  regulations. 

Strongly  as  these  instances  illustrate  the  importance  of 
crime,  and  the  space  which  it  filled  in  early  times,  I 
am  not  sure  that  the  same  inference  may  not  be  drawn 
even  more  plainly  from  some  isolated  rules  of  the  early  laws. 
The  laws  of  Ina  establish  what  we  should  call  a  presump- 
tion of  law  as  follows:  ^  "If  a  far-coming  man  or  a  stranger 
"  journey  through  a  wood  out  of  the  highway,  and  neither 
"  shout  nor  blow  his  horn,  he  is  to  be  held  for  a  thief,  either 
"  to  be  slain  or  redeemed."  Several  of  the  laws  provide 
that  if  a  stranger  stayed  three  days  in  his  host's  house  the 
host  was  to  be  answerable  for  him,  ^"Nemo  ignotum  vel 
"  vagantem,  ultra  triduum  absque  securitate  detineat."  These 
rules  are  precisely  analogous  to  the  *  ancient  identification 
between  a  stranger  and  an  enemy  as  "  hostes." 

The  Law  of  Stjmmaet  Execution  or  Infangthief. — 
A  single  step,  but  still  a  step,  however  short,  from  private 

'  "Carta  Regis  "Willelmi  de  appellatis  pro  aliqiio  maleficio.  Franco  vel 
Anglico."     ("Will.  3,  1 ;  Tliorpe,  i.  488.) 

2  Ina,  20  ;  Thorpe,  i.  117.  '  Hen.  1,  viii.  5  ;  Tliorpe,  i.  516. 

*  "  Hostis  enim  apud  majores  nostros  is  dicebatur  q^nem  nunc  peregrinum 
"  dicimus." — Cicero  de  Offieiis,  i.  12.  "  Hostis  "  was  itself  a  euptemism  for 
"  perdufellis. " 


6^ 


Infangthief. 


Chap.  Ill,  .^^g^j.  ^^^  blood  feuds  is  made  when  people  are  invested 
by  law  with  the  right  of  inflicting  summary  ^'punishment 
on  wrongdoers  whose  offences  injure  them  personally.  To 
recognise  the  right  of  the  injured  husband,  or  owner  of  pro- 
perty, to  put  the  adulterer  or  thief  to  death  there  and  then, 
is  a  nearer  approach  to  law  than  to  leave  them  to  fight  out 
their  quarrel  subject  to  a  compulsory  arbitration  ending  in 
the  payment  of  a  prescribed  sum. 

Of  this  right  of  summary  execution  the  Saxon  laws  are  full, 
as  the  following  extracts  show :  "  If  a  thief  be  seized  let 
"  him  perish  by  death,  or  let  his  life  be  redeemed  according 
"  to  his  wer"  say  the  laws  of  ^  Ina,  meaning  apparently  that 
the  thiefs  fate  was  to  be  in  the  discretion  of  his  captor. 
3  Another  of  Ina's  laws  says,  "  He  who  slays  a  thief  must 
"  declare  on  oath  that  he  slew  him  offending  *not  his  gild 
"  brethren."  A  very  obscure  law  of  Ethelstan's  begins 
thus  :  ^  "  That  no  thief  be  spared  who  may  be  taken  liand- 
"hoebhende  above  xii.  years  and  above  eight  pence."  The 
rest  df  the  law  implies  that  in  some  cases  the  thief  may  be 
imprisoned.  Another  law  of  the  same  king  ®  implies  that 
the  natural  and  proper  coutse  as  to  thieves  was  to  kill  them. 
"  If  any  thief  or  robber  flee  to  the  king  or  to  any  church  and 
"  to  the  bishop,  that  he  have  a  term  of  nine  days.  And  if 
"  he  flee  to  an  ealdorman,  or  an  abbot,  or  a  thane,  let  him 

^  A  curious  modern  example  of  this  is  to  be  found  in  Burnes's  Travels  into 
Bokhara  :  "  In  one  of  our  rides  about  Pesliawur  "  (then,  in  1831,  an  Afghan 
city)  "we  had  a  specimen  of  justice  and  Mohammedan  retribution.  As  we 
"  passed  the  .suburbs  of  the  city  we  discovered  a  crowd  of  people,  and  on  a 
''  nearer  approach  saw  the  mangled  bodies  of  a  man  and  woman,  the  former 
' '  not  quite  dead,  lying  on  a  dunghill.  The  crowd  instantly  surrounded  the 
' '  chief  and  our  party,  and  one  person  stepped  forward  and  represented,  in  a 
' '  trembling  attitude,  to  Sultan  Mohammed  Khan  that  he  had  discovered  his 
"  wife  in  an  act  of  infidelity,  and  had  put  both  parties  to  death  ;  he  held  the 
' '  bloody  sword  in  his  hands,  and  described  how  he  had  committed  the  deed. 
' '  The  chief  asked  a  few  questions,  which  did  not  occupy  him  three  minutes  ; 
"  he  then  said,  in  a  loud  voice,  '  You  have  acted  the  part  of  a  go'od  Moham- 
"  medan,  and  performed  a  justifiable  act.'  He  then  moved  on,  and  the  crowd 
"  cried  out  '  Bravo '  {Afreen).  The  man  was  immediately  set  at  liberty.  We 
"  stood  by  the  chief  during  the  investigation,  and  when  it  finished  he  turned 
"  to  me  and  carefully  explained  the  law.  'Guilt,'  added  he,  '  committed  on 
"  'a  Friday  is  sure  to  be  discovered.'" — Burnes's  Travels  into  Bokhara, 
i.  93,  94. 

"  Ina,  12  ;  Thorpe,  i.  111.  ^  Ina,  16  ;  Thorpe,  i,  113. 

*  These  obscure  words  are  supposed  by  Mr.  Thorpe  to  mean  that  the  slayer 
must  not  himself  be  a  thief  ("Thieves  we  callasfar  asvii.  men,"  says  Ina,  13)i 
The  slayer  must  not  be  one  of  the  other  six. 

=  Ethelr.  1  ;  Thorpe,  i.  199.  «  Ethel,  iv.  4  ;  Thorpe,  i.  223. 


itlLLli^G  THIEVES.  63 

"  hav6  a  term  of  three  days.      And  if  any  one  slay  tiim  Chap.  Ill, 

"  within  that  term  then  let  him  (i.e.  the  slayer)  make  hot  the 

"  rmmdt-iyrd  of  him  whom  he  before  had  fled  to  "  (i.e.  pay  a 

fine  for  the  breach  of  the  protection  of  the  person  to  whom 

the  thief  had  fled).     "  And  flee  he  (the  thief)  to  such  sOcn 

"  as  he  may  flee  to "  (i.e.  in  whatever  jurisdiction  he  takes 

"  refuge)  "that  he  be  not  worthy  of  his  life  but  as  many  d&ys 

"as  we  here  above  have  declared,  and  he  who  after  that 

"  harbours  him  (the  thief)  let  him  (the  harbourer)  be  worthy 

"  of  the  same  that  the  thief  may  be,  unless  he  can  clear 

"  himself  that  he  knew  no  guile  nor  any  theft  in  him." 

^The  Judicia  Oivitatis  Lundonice  begin  by  declaring 
"  that  no  thief  be  spared  over  xii.  pence,  and  no  person  over 
"  xii.  years  whom  we  learn  according  to  folkright  that  he  is 
"  guilty  and  make  no  denial ;  that  we  slay  him  and  take  all 
"  he  has."  Many  provisions  are  made  as  to  following  thieVes 
and  tracking  them,  and  in  the  7th  rule  it  is  provided  "  that 
"  he  who  should  kill  a  thief  before  other  men  that  he  be 
"12  pence  the  better  for  the  deed  and  for  the  enterprise 
"  from  our  common  money."  There  are  to  be  monthly 
meetings,  at  which  the  persons  present  are  to  dine  together, 
and  if  it  then  happened  that  any  men  be  so  strong  and  so 
great  "...  that  they  refuse  us  our  right,  and  stand  up  in 
"  defence  of  a  thief  .  .  .  that  we  all  ride  thereto,  and  avenge 
"  our  wrong  and  slay  the  thief,  and  those  who  fight  and 
"  stand  with  him>  unless  they  be  willing  to  depart  from  him." 
2  In  the  laws  of  Edward  the  Confessor  elaborate  provisions 
are  made  for  trying  the  question  whether  a  person  killed  as 
a  thief  "injuste  interfectus  sit,  et  injuste  jacet  inter  latr ones." 
If  it  appears  that  this  is  the  case  the  body  is  to  be  taken  up 
and  reburied  "  sicut  Christianum,"  with  proper  ecclesiastical 
ceremonies. 

The  law  of  infangthief  comes  very  near  to  this.  It  may 
indeed  be  viewed  as  a  particular  case  of  summary  pxecution. 

1  See  on  this  document  some  curious  aud  interesting  remarks  of  Mr.  Ooote, 
intended  to  show  that  it  contains  some  tules  of  a  Eglnan  collegium,  the  object 
of  which  was  the  recovery  of  stolen  stock  and  slaves,  and  the  indemnification 
of  the  owners  if  they  could  not  be  recovered.— iJomams  in  Britain,  394,  &c. 
For  the  document,  see  Thorpe,  i.  229—243. 

'■'  Edw.  Conf.  xxxvi.;  Thorpe,  i.  460. 


64 


INFANGTHIEF    AFTEE  THE  CONQUEST. 


Chap.  III.  j^  ^^as  one  of  the  franchises  usually  conceded  to  the  lords  of 
townships,  and  is  thus  defined  in  the  laws  of  Edward  the 
Confessor :  ^ "  Justicia  cognoscentis  latronis  sua  est,  de 
"  homine  suo  si  captusfuerit  super  terram  suam."  ^  Infang- 
thief  long  survived  the  Conquest,  though  the  exertion  of  the 
right  was  put  under  restrictions.  ^  In  the  Hundred  Rolls 
which  record  the  results  of  an  inquiry  into  the  whole  state 
of  government  in  England  at  the  beginning  of  the  reign  of 
Edward  I.  a  return  is  made  of  the  franchises  exercised  by 
lords  of  manors  in  most  of  the  counties  in  England,  hundred 
by  hundred.  These  returns  show  that  at  that  time  the 
franchise  of  infangthief  was  common.  It  soon,  however, 
disappeared.  Sir  Francis  Palgrave  says,  * "  In  England  the 
"  records  and  annals  of  the  law  have  not  furnished  any 
"  instances  of  the  exercise  of  infangthief  after  the  reign  of 
"  Edward  III.,  except  in  one  northern  borough,  Halifax, 
"  where  a  judicature  grounded  upon  the  Anglo-Saxon  custom 
'  subsisted  until  a  comparatively  recent  era."  Of  these 
modes  of  punishing  crime,  Sir  F.  Palgrave  well  observes, 
* "  Perhaps  the  name  of  legal  procedure  can  scarcely  be 
"  given  with  propriety  to  these  plain  and  speedy  modes  of 
"  administering  justice :  they  are  acts  deduced  from  the  mere 
"  exercise  of  the  passions  natural  to  man,  and  the  law  consists 
"  only  in  the  restrictions  by  which  the  power  of  self-protec- 
"  tion  and  defence  were  prevented  from  degenerating  into 
"  wanton  and  unprovoked  cruelty." 

Police  Organisation,  Purgation,  Ordeal. — ^Side  by 
side  with  the  rough,  indeed  barbarous,  institutions  just 
described,  the  early  laws  contained  provisions  which 
formed  the  foundation  on  which  a  more  enlightened 
system  was  gradually  constructed.  The  best  order 
in   which    to    consider    them   will    be    to    speak   first    of 

1  Ewd.  Conf.  xxii.;  Thorpe,  i.  452.      ^  Palg.i.  210.      '  See  infra,  p.*125. 

*Palg.  i.  213.  5paigi211. 

*  The  whole  subject  of  the  early  English  courts  and  the  territorial  divisions 
of  the  country  has  been  examined  with  so  much  labour  and  with  such  a  profu- 
sion of  learning  by  Mr.  Stubbs,  that  I  have  felt  it  safer  as  well  as  easier  to 
adopt  his  conclusions  upon  the  matters  treated  of  in  this  section  than  to  under- 
take the  arduous  task  of  examining  the  original  authorities  for  myself. 
Though  he  has  added  much  to  what  is  stated  in  the  earlier  works  of  Pal- 
grave, Hallam,  and  Kemble,  I  do  not  think  he  has  altered  their  principal 
conclusions. 


HUNDREDS,  TITHINGS,   FRANK-PLEDGE,  65 

the  local  distribution  of  the  country  for  purposes  of  police,  Chap.  III. 
and    also   for  the   purposes    of   criminal  jurisdiction,   and 
then  to  pass  to  the  modes  of  trial,  and  to  the  infliction  of 
punishment  in  cases  in  which  punishments  proper   in  our 
sense  of  the  word  were  inflicted. 

^The  territorial  divisions  known  to  the  early  English,  and 
bearing  on  the  subject  of  the  administration  of  criminal  jus- 
tice, were  the  kingdom,  the  shire  or  county,  the  hundred  or 
wapentake,  and  the  tithing,  which  it  does  not  seem  easy  to 
distinguish  from  the  township  or  parish.  The  greater  town- 
ships were  called  hurhs.  The  administratipn  of  justice 
was  one  of  the  great  prerogatives  of  the  king.  For  each 
shire  there  was  an  earl  or  alderman,  and  a  sheriff  or  viscount. 
Whether  there  was  or  was  not  a  chief  officer  for  every 
hundred  is  doubtful;  but  such  officers  did  exist  in  some 
cases.  Each  township  or  tithing  was  on  all  occasions  repre- 
sented by  a  body  of  five  principal  inhabitants,  namely,  the 
reeve  and  four  men. 

2  Under  the  later  kings,  and  in  the  days  of  William  the 
Conqueror  and  his  sons,  laws  were  enacted  whereby  "  all 
"  men  were  bound  to  combine  themselves  in  associations  of 
"  ten,"  each  of  whom  "  was  security  for  the  good  behaviour 
"  of  the  rest,"  and  had  to  produce  him  if  he  were  charged 
with  any  offence,  and  if  they  failed  to  do  so  to  make  good 
any  mischief  he  had  done.  These  associations  were  called 
tithings  or  frith-lorhs,  or  frank-pledges.  How  far  they 
were  connected  with  the  local  tithings  is  not  clear. 

^ "  The  '  view  of  frank-pledge,'  the  business  of  seeing  that 
"  these  associations  were  kept  in  perfect  order  and  number, 
"  and  of  enforcing  the  same  by  fine  was  one  of  the  agenda 
"  of  the  local  courts,  and  became  ultimately,  with  the 
"  other  remunerative  parts  of  petty  criminal  jurisdiction, 
"  a  manorial  right  exercised  in  the  courts-leet,  where  it 
"  still  exists." 

Besides  the  tithings  and  hundreds  there  were  also  liberties  or 

franchises  within  which  prevailed  all  or  some  of  the  privileges 

comprised  under  the  words  "  Sac  and  soc,  toll  and  team,  and 

'•  infang-thief."     These   were  simply  hundreds   or  tithings 

1  Stubbs,  i.  101.  '  lb.  87.  3  lb.  88. 

VOL.    I.  ^ 


66  EARLY   ENGLISH   POLICE. 

Chap.  III.  granted    as   a    privilege   to    private    persons,    and  standing 
outside  the  general  organisation. 

This  organisation  still  exists  in  name.  We  have  still 
shires  with  their  sheriffs  (the  earl's  office  having  become 
merely  titular),  hundreds  which  till  1869  had  their  high 
bailiffs,  chief  constables,  or  other  officers ;  and  parishes,  town- 
ships, and  tithings  which  till  1872  had  their  parish  constables, 
borsholders,  and  tithing-men,  though  the  police  functions 
of  these  officers  had  within  living  memory  been  superseded 
by  more  modern  arrangements.  We  have  still  also  liberties 
with  their  ancient  names.  The  Soke  of  Peterborough  may 
stand  as  one  amongst  many  instances. 

In  early  times  these  institutions  formed  the  police 
system  of  the  country,  and  in  that  capacity  had  various 
duties,  of  which  the  most  important  was  that  of  raising  in 
case  of  need  the  hue  and  cry,  and  tracking  thieves  and 
stolen  cattle.  The  early  laws  are  full  of  provisions  on 
this  subject,  the  substance  of  which  is  that  if  the  track  of 
stolen  cattle  is  followed  into  land  it  must  either  be  followed 
out  or  paid  for.  In  the  Judicia  Givitatis  Lundonim  the 
following  passage  occurs:  i"  And  if  any  one  trace  a  track 
"  from  one  shire  to  another,  let  the  men  who  there  are  next 
"  take  to  it,  and  pursue  the  track  till  it  be  made  known  to 
"  the  reeve ;  let  him  then  with  his  manuncy  (the  people  of 
"  his  district)  take  to  it  and  pursue  the  track  out  of  his  shire 
"if  he  can,  but  if  he  cannot  let  him  pay  the  angylce  (the 
"  fixed  price  analogous  to  the  were)  of  the  property,  and  let 
"  both  reeveships  have  the  full  suit  in  common,  be  it  where- 
"  ever  it  may,  as  well  to  the  north  of  the  march  as  to  the 
"  south,  always  from  one  shire  to  another,  so  that  every  reeve 
"  may  assist  another  for  the  common /rtWi  (peace)  of  us  all 
"  by  the  king's  oferhyrnes  "  {i.e.  under  pain  of  being  guilty  of 
a  neglect  of  duty,  and  so  liable  to  a  fine). 

Upon  the  whole  the  early  police  may  be  thus  shortly 
described.  The  sheriffs  of  counties,  the  bailiffs  of  hundreds, 
the  reeves  and  four  men  of  townships,  were  its  offi- 
cers. Their  duty  was  to  arrest  criminals  and  recover  stolen 
property.  In  this  they  were  assisted  by  the  institution 
1  Thorpe,  i.  237. 


EARLY   ENGLISH  COURTS.  67 

of  frank-pledge,  -which  made  every  one  accountable  for  all  Chap.  IIL 
his  neighbours. 

The  next  step  in  tracing  out  the  early  procedure  is  to 
describe  the  Courts  of  Justice.  ^  In  the  later  period  of 
our  early  history  the  administration  of  justice  was  re- 
garded as  the  great  prerogative  of  the  king,  who,  after  a  long 
series  of  struggles,  had  become  ^ "  the  source  of  justice,  the 
"  lord  and  patron  of  his  people,  the  owner  of  the  public  lands." 
Though  he  occasionally  discharged  this  office  either  per- 
sonally or  by  the  officers  in  immediate  attendance  upon  him, 
the  regular  and  stated  method  of  doing  so  was  through  the 
local  courts  which  were  held  before  his  officers,  ^the  ealdor- 
man,  and  the  sheriff,  or  before  landowners  to  whom  he  had 
granted  jurisdiction  (sac  and  soc)  in  their  own  bounds.  These 
officers  may  roughly  be  described>as  the  judges  of  the  courts, 
though  it  is  probable  that  there  was  little  in  common  between 
their  duties  and  those  of  a  judge  of  the  present  day.  The 
courts  themselves  corresponded  to  the  police  organisation, 
and  were  as  follows  : — 

(1)  The  township  officers,  who  could  scarcely  be  said  to 
form  a  court,  but  were  rather  the  executive,  officers  of  the 
superior  courts. 

(2)  The  Hundred  Courts. 

(3)  The  County  Courts. 

(4)'  The  Courts  of  Franchises,  which  were,  so  to  speak, 
hundreds  in  themselves. 

Each  of  these  Courts  was  in  the  nature  of  a  public 
meeting,  attended  by  specified  "  suitors,"  or  members,  just  as 
the  Courts  of  Quarter  Session  in  our  own  days  are  meetings 
of  the  county  magistrates,  and  form  a  court  of  which  the 
magistrates  might  be  called  the  suitors.  The  suitors  at 
the  hundred  court  were  the  parish  priest,  the  reeve,  and 
the  four  men  of  each  township  in  the  hundred ;  at  the 
county  court  the  same  persons  from  each  township  in  the 
county,  all  lords  of  lands,  and  all  public  officers  were  also 
suitors.  Each  court  had  jurisdiction  in  both  civil  and 
criminal  cases.    On  the  criminal  side  the  court  was  called  the 

1  Stubbs,  i.  90.  "  Stubbs,  i.  207. 

3  The  bishop  also  sat  in  the  County  Court,  but  I  shall  refer  to  this  part 
of  the  subject  elsewhere. 

F  2 


68  PROCEDURE  OF  EAELY  ENGLISH  COURTS. 

Chap.  III.  Sheriff's  town  (or  circuit).  There  appears  to  have  been  no 
distinction  for  purposes  of  criminal  jurisdiction  between  the 
hundred  court  and  the  county  court,  as  the  sheriff's  tourn  was 
simply  the  county  court  held  in  and  for  a  particular  hundred. 

^The  court  consisted  of  the  suitors  collectively,  but 
"  a  representative  body  of  twelve  seem  to  have  been  insti- 
"tuted  as  a  judicial  committee  of  the  court." 

Such  were  the  early  courts.  The  next  question  is  as 
to  their  procedure.  ^  According  to  Sir  Francis  Palgrave  it 
was  wholly  oral.  The  court  was  summoned  by  verbal 
messages  sent  through  the  district,  or  perhaps  by  a  token. 
"  All  the  proceedings  in  these  assemblies  participated  of  their 
"  native  rudeness  and  simplicity.  Scribes,  or  registrars,  were 
"not  required  to  attend  the  meeting  of  the  hundred  or  the 
' '  shire :  the  memorials  of  the  court  were  entrusted  to  the 
"recollections  of  the  Witan,  the  judges  by  whom  the 
"  decrees  were  pronounced  .  .  .  Legal  archives,  in  the  proper 
"  sense  of  the  words,  did  not  exist  among  the  Anglo-Saxons. 
"  On  rare  occasions  the  verdicts  of  the  hundred  or  the  shire 
''  might  be  written  in  the  blank  leaves  of  the  missal  belong- 
"  ing  to  some  neighbouring  minster ;  but  though  this  mode 
"of  preserving  the  history  of  the  transactions  might  be 
"adopted,  the  document  had  no  legal  effect.  It  could  not 
"  be  pleaded,  and  the  strict  and  proper  mode  of  legal  proof 
"  was  by  appealing  to  living  testimony.  If  evidence  was 
"  required  of  judicial  transactions,  the  proof  was  given  by 
"  the  hundred  or  shire,  in  its  corporate  capacity,  the  suitors 
"bearing  witness  to  the  judgments  which  they  or  their 
"  predecessors  had  pronounced." 

The  procedure  itself  appears  to  have  consisted  of  accusa- 
tion and  trial. 

3  Accusation  might  be  made  either  by  the  committee  men- 
tioned above,  who  possibly  may  have  been  the  predecessors  of 
the  grand  juries  of  later  times,  or  by  the  four  men  and  the  reeve 
of  the  township,  or  lastly  by  a  private  accuser.  This  appears 
as   to  the   twelve   thanes  from   the  laws   of  *Etheldred : — 

^  Stubbs,  i.  103.  See  more  particularly  Leges  Henrici  Frimi,  v.  De 
causarum  preprietatibus.     Thorpe,  i.  505.  ^  Palg.  i.  143 

"  lb.  213.  "  Ethel,  iii.  3 ;  Thorpe,  i.  294-295. 


ACCUSATION.  69 

"and  that  a  gem5t  be  held   in  every  wapentake,  and  the  Chap. HI. 
"  twelve  senior  thanes  go  out,  and  the  reeve  with  them,  and 
"  swear  on  the  relic  that  is  given  to  them  in  hand,  that  they 
"will  accuse  no  innocent  man,  nor  conceal  any  guilty  one." 

That  the  four  men  and  the  reeve  had  also  a  power  of 
accusation  is  inferred  by  Sir  Francis  Palgrave  from  a  passage 
in  the  laws  of  Cnut : — ^  "  And  if  any  man  be  so  untrue  to  the 
"hundred,  and  so  tiM-hysig  (ill-famed),  and  three  men 
"  together  then  accuse  him,  let  there  be  no  other  (course)  but 
"that  he  go  to  the  threefold  ordeal;"  also  from  one  of  the 
laws  of  William  the  Conqueror  : — ^ "  Si  quis  in  hundred© 
"  inculpatus  fuerit  et  a  iv.  hominibus  rettatus  (accused)  purget 
"  se  manu  xii."  Several  passages  in  the  laws  seem  to  show 
that  a  single  person  could  accuse  another.  The  most  im- 
portant occur  in  one  of  the  laws  of  ^  Ina,  which  is  interesting 
because  it  implies  that  a  person  accused  might  be  bailed,  and 
if  he  could  not  get  bail,  be  imprisoned  till  trial : — "  When  a 
'■  man  "  (A)  "  is  charged  with  an  offence,  and  is  compelled  to 
"  give  pledge,  but  has  not  himself  aught  to  give  for  pledge, 
"  then  goes  another  man "  (B)  "  and  gives  his  pledge  for 
"him,  as  he  may  be  able  to  arrange,  on  the  condition  that 
"  he  "  (A)  "  give  himself  into  his  "  (B's)  "  hands  until  he  " 
(A)  "  can  make  good  his "  (B's)  "  pledge.  Then  again  a 
"  second  time  he "  (A)  "  is  accused  and  compelled  to  give 
"pledge;  if  he  will  not  continue  to  stand  for  him  who 
"  before  gave  pledge  for  him"  (if  B  will  no  longer  go  bail  for 
A)  "  and  if  he  "  (the  last  accuser)  "  then  imprison  him  "  (A), 
"let  him"  (B)  "then  forfeit  his  pledge  who  had  before 
"  given  it  for  him  "  (A).  This  wilderness  of  pronouns  seems  to 
have  the  following  meaning :— A  is  accused  of  a  crime,  B  gives 
bail  upon  condition  that  A  will  put  himself  into  B's  custody 
till  A  appears  to  answer  the  accusation.  A  second  accusa- 
tion is  then  made  against  A.  B  refuses  to  give  further 
security,  and  A  is  imprisoned  by  his  second  accuser.  B 
forfeits  the  security  he  gave  for  A's  appearance  on  the  first 
charge.  This  must  refer  to  charges  before  two  different 
courts.  A  is  accused  in  London,  and  B  gives  bail  for  his 
appearance  in  London.  If  A  is  accused  and  imprisoned  in 
1  Cnut,  30  ;  Tkorpe,  i.  393.     "  Thorpe,  i.  487.     '  Ina,  62  ;  Thorpe,  i.  Ul-142. 


70  CQMPUEGATION. 

Chap.  Ill  respect  of  that  accusation  at  Bristol,  B  forfeits  his  recognis- 
ance in  London,  if  by  reason  of  the  imprisonment  at  Bristol 
A  does  not  appear  in  London. 

^Several  forms  of  the  oaths  of  accusation  taken  by  indi- 
vidual accusers  are  still  preserved,  which  implies  that 
private  accusations  were  common  : — "  By  the  Lord  before 
"  whom  this  relic  is  holy,  I  my  suit  prosecute  with  full  folk 
"  right,  without  fraud  and  without  deceit,  and  without  any 
"guile,  as  was  stolen  from  me  the  cattle  N,  that  I  claim,  and 
"  that  I  have  attached  with  N.  By  the  Lord  I  accuse  not  N 
"  either  for  hatred,  or  for  envy,  or  for  unlawful  lust  of  gain ; 
"  nor  know  I  anything  so^other,  but  as  my  informant  to  me 
"  said,  and  I  myself  in  sooth  believe  that  he  was  the  thief  of 
"  my  property." 

The  form  of  the  oath  would  no  doubt  vary  according  to  the 
nature  of  the  crime  imputed. 

The  mode  in  which  the  trial  was  conducted  can  still  be 
traced  with  reasonable  distinctness  from  the  enactments  of 
2  several  kings  which  repeat  each  other  with  variations,  the 
most  complete  types  being  those  of  Ethelred  and  Cnut. 

The  accused  person  denied  in  general  terms  and  upon 
oath  what  was  imputed  to  him.  ^  His  oath  was : — "  By  the 
"  Lord  I  am  guiltless,  both  in  deed  and  counsel  of  the  charge 
"  of  which  N  accuses  me." 

This  being  done,  the  question  of  his  guilt  was  to  be 
decided,  according  to  the  character  of  the  accused,  by  the 
lad,  i.e.  by  compurgation,  or  by  ordeal.  If  he  was  of 
good  character  he  was  entitled  to  the  lad,  or  "oath- 
worthy."  If  the  lad  failed,  or  in  the  expressive  words  of 
the  law,  "if  the  oath  burst,"  or  if  he  was  tiht  hydg,  i.e. 
a  man  of  bad  character,  he  was  obliged  to  go  to  the  ordeal. 

The  first  question  accordingly  at  the  trial  was  as  to  his 
character,  which  was  decided  by  the  system  of  horhs  or 
sureties,  which  was  as  follows : — 

*"Ethelstan  enacted  that  the  lord  or  the  lord's  steward 
"  should  answer  for  all  his  men."     "  Omnis  homo  "  (obviously 

1  Thorpe,  i.  179-185. 

^  Ethelred,  i.  1  ;  Thorpe,  i.  283  ;  Cnut,  ii.  30  ;    Thorpe,  i.  393 ;  Hen.  Q, 
xli.  6  ;  lix.  6  ;  Ixiv.  9 ;  Ixv.  3 ;  Thorpe,  i.  515-541. 
3  Th.  i.  181.  4  jEthelstan  ii.  ;  Thorpe,  i.  217. 


compurgators'  oaths.  71 

every  lord)  "teneat  homines  suos  in  fidejussione  suk  contra  Chap.  III. 

"  omne  furtum.     Si  tunc  sit  aliquis  qui  tot  homines  habeat 

■"quod  non  sufficiat  omnes  custodire  praeponat  sibi  singulis 

"  villis  prsepositum  unum  qui  credibilis  sit  ei,  et  qui  concre- 

"dat  hominibus.     Et  si  prsepositus  alicui  eorum  hominum 

*'  concredere  non  audeat  inveniat  xii.  plegios  cognationis  sua 

"  qui  ei  stent  in  fidejussione." 

"  That  every   freeman  have  a   true  borh,  that  the   lorh 
"  may  present  him  to  every  justice  if  he  should  be  accused." 

^Cnut  enacted,  "We  will  that  every  freeman  be  brought 
"  into  a  hundred  and  into  a  tything  who  wishes  to  be  entitled 
"  to  lad  or  icer  in  case  any  one  shall  slay  him  after  he  is 
"twelve  years  of  age.  Let  him  not  afterwards  be  entitled 
"to  any  free  rights  be  he  heath-fcest  ^(living  in  his  own 
"house),  be  he  follower.  And  that  every  one  be  brought 
"into  a  hundred  and  in  borh,  and  let  the  horh  hold 
"and  lead  him  to  every  plea.  Many  a  powerful  man  will 
"if  he  can  and  may  defend  his  man  in  whatever  way  it 
*'  seems  to  him  that  he  may  the  more  easily  defend  him, 
"  whether  as  a  freeman  or  a  thec^.  But  we  will  not 
"  allow  that  injustice."  Later  enactments  developed  this 
into  the  law  of  frank -pledge  (frith-iorh — peace-pledge)  already 
referred  to. 

The  accused  then  being  "led  to  the  plea"  by  his  borh, 
the  borh  had  to  swear  that  the  accused  had  not  been 
convicted  since  a  certain  period.  The  oath  to  be  taken 
under  Ethelred's  law  was  *"that  he  has  not  failed  neither 
"  in  oath  nor  ordeal  since  the  gemot  was  at  Bromdun." 
In  ^Cmit's  time,  "since  the  gemot  was  at  Winchester." 
TJnder  each  of  these  laws  the  oath  was  to  be  made  not 
only  by  the  lord  of  the  accused  (if  he  had  one,)  but  by 
"two  true  thanes  of  the  hundred  or  the  reeve,"  who  were 
also  to  swear  that  the  accused  had  not  paid  thief-gild. 
This  being  done  the  accused  was  entitled  to  choose  whether 
he  would  have  a  "  single  ordeal  "or  a  "  pound-worth  oath 
within   the   three   hundreds  for  above  xxx.  pence."     ®Tbe 

1  Ethelred,  i.  1  ;  Thorpe,  i.  281.  ^  Cn.  ii.  20  ;  Thorpe,  i.  387. 

3  Thorpe's  note.  ■*  Ethelred,  i.  1 ;  Thorpe,  i.  281. 

»  Cnut.  ii.  30  ;  Thorpe,  i.  393.  ^  Edgar,  9  ;  Thorpe,  i.  261. 


72  ORDEAL. 

Chap.  III.  single  ordeal  was  handling  a  piece  of  red-hot  iron  of  a  pound's 
weio'ht  or  plunging  the  hand  up  to  the  wrist  into  boiling 
water.  ^  How  many  witnesses  were  "  a  pound-worth  "  does 
not  appear,  nor  do  I  think  that  it  appears  clearly  how  it 
was  determined  who  the  witnesses  were  to  be,  and  in 
particular  whether  the  accused  might  call  whom  he  would, 
or  whether  the  sheriff  summoned  the  persons  whom  he 
believed  to  be  most  likely  to  know  the  facts,  subject  to 
some  right  of  challenge  on  the  part  of  the  prisoner;  but 
however  this  may  have  been  the  lad  or  compurgators 
swore  not  to  jjarticular  facts,  but  in  general  terms  to  their 
belief  in  the  innocence  of  the  accused.  This  appears  from 
the  form  of  the  oath,  which  is  as  follows : — "  His  "  (the 
accused)  "  companion's  oath  who  stands  with  him "  (the 
accused) — "  By  the  Lord,  the  oath  is  clean  and  unperjured 
'•'  which  N  has  sworn." 

Whether  any  evidence  at  all  was  given  of  particular  facts, 
and  if  so,  at  what  stage  of  the  proceedings,  and  in  what 
manner,  it  is  now  impossible  to  say.  It  is  hardly  conceivable 
that  the  necessity  for  it  should  not  have  been  perceived  at  a 
very  early  time,  and  it  is  not  unlikely  (though  this  is  of 
course  a  mere  conjecture)  that  the  compurgators  might  have 
a  right  to  have  witnesses  to  facts  examined  before,  to  use  an 
expression  which  often  occurs  in  the  laws,  they  "dared"  to 
swear.  All  that  can  be  positively  affirmed  is,  that  ^  witnesses 
are  mentioned  in  the  laws  of  Henry  I.  and  that  ^  a  form  of 
oath  has  been  preserved,  which  implies  that  evidence  in  our 
sense  of  the  word,  was,  or  might  be,  given  at  some  stage  of 
the  proceedings.  "How  he  shall  swear  that  stands  with 
"another  in  witness.  In  the  name  of  Almighty  God  as  I 
"  here,  for  N  in  true  witness,  stand  unbidden  and  unbought, 
"  so  I  with  my  eyes  oversaw,  and  with  my  ears  overheard  that 
"  which  I  with  him  say.'' 

1  In  many  parts  of  the  laws  there  are  provisions  about  the  relative  value  of 
the  oaths  of  people  of  different  ranks  and  professions,  e.g.  "A  mass  priest's 
"  oath  and  a  secular  thane's  are  in  English  law  reckoned  as  of  e^ual  value, 
"  and  by  reason  of  the  seven  church  degrees  that  the  mass  priest,  through  the 
"  gi-ace  of  God,  has  acquired,  he  is  worthy  of  thane  right."  "A  twelf-hynde 
"man's  oath  stands  for  six  ceorls'  oaths,  because  if  a  man  should  avenge  a 
"  twelf-hynde  man  he  will  be  justly  avenged  on  six  ceorls,  and  his  wer-gild 
"  will  be  six  ceorls'  '  wer  gilds.'  " — Thorpe,  i.  183. 

s  Hen.  6,  i.  ;  Thorpe,  i.  505.  ^  Thorpe,  i.  181. 


CONSEQUENCES   OF  CONVICTION.  73 

However  this  may  have  been,  if  the  oath  succeeded  the  Chap.  III. 
accused  was  acquitted.  If  it  failed  or  "burst,"  that  is,  if  the 
witnesses  could  not  be  found,  or  would  not  swear,  or  if  the 
accused  were  a  man  of  bad  character,  he  had  to  go  to  the 
triple  ordeal  (urtheil),  that  is  ^to  handle  red-hot  iron  of 
three  pounds  weight,  or  to  plunge  his  arm  into  boiling  water 
to  the  elbow. 

It  is  unnecessary  to  give  a  minute  account  of  the  cere- 
monial of  the  ordeals.  They  were  of  various  kinds.  The 
general  nature  of  all  was  the  same.  They  were  appeals  to 
God  to  work  a  miracle  in  attestation  of  the  innocence  of  the 
accused  person.  The  handling  of  hot  iron,  plunging  the 
hand  or  arm  into  boiling  water  unhurt,  were  the  commonest. 
The  ordeal  of  water  was  a  very  singular  institution. 
Sinking  was  the  sign  of  innocence,  floating  the  sign  qi  guilt. 
As  any  one  would  sink  unless  he  understood  how  to  float, 
and  intentionally  did  so,  it  is  difficult  to  see  how  any  one 
could  ever  be  convicted  by  this  means.  Is  it  possible  that 
this  ordeal  may  have  been  an  honourable  form  of  suicide, 
like  the  Japanese  happy  despatch  ?  In  nearly  every  case 
the  accused  would  .sink.  This  would  prove  his  innocence, 
indeed,  but  there  would  be  no  need  to  take  him  out.  He 
would  thus  die  honourably.  If  by  any  accident  he  floated, 
he  would  be  put  to  death  disgracefully. 

If  the  ordeal  failed,  the  accused  was  convicted,  the 
consequences  of  which  were  provided  for  as  follows  :— 
2  Ethelred  says,  "  If  he  be  guilty  at  the  first  time,  let  him 
"make  bot  to  the  accuser  twofold,  and  to  the  lord  his  wer, 
"  and  let  him  give  true  horhs  that  he  will  thereafter  abstain 
"  from  every  evil.  And  at  the  second  time  let  there  be  no 
"other  lot  than  the  head.  But  if  he  run  away  and  avoid 
"the  ordeal,  let  the  lorh  pay  to  the  accuser  his  ceap-gild 
(the  market  price  of  the  thing  stolen)  ^  and  to  the  lord  his 
"wer  who   is  entitled  to  his  wiie.      If  any  one  accuse  the 

1  Edgar,  9  ;  Thorpe,  i.  261.  The  fullest  description  of  an  ordeal  by  fire  is 
in  the  laws  of  Ethelstan,  iv.  7  ;  Thorpe,  i.  227. 

2  Ethelred,  i.  1,  Thorpe,  i-  282-283  ;   and  Cnut,  ii.  30,  Thorpe,  i.  393-39i. 

3  i.e.  the  were  of  the  offender  is  to  be  paid  to  the  lord  who  is  entitled  to 
the  vnte  (or  line)  due  in  respect  of  the  offence.  The  were  meant  both  the 
price  to  be  paid  to  a  person's  relations  if  he  was  killed,  and  the  price  to  be 
paid  in  respect  of  him  if  he  committed  an  offence. 


74  CONSEQUENCES  OF   CONVICTION. 

Chap.  III.  "  lord  that  he  (the  man)  ran  away  by  his  (the  lord's)  counsel 
"  and  that  he  (the  lord)  had  previously  acted  unlawfully,  let 
"  him  (the  lord)  take  to  him  five  thanes  and  be  himself  the 
"sixth,  and  clear  himself  thereof.  And  if  the  purgation 
"  succeed,  let  him  (the  lord)  be  entitled  to  the  wer.  And  if 
"it  do  not  succeed  let  the  king  take  the  wer  and  let  the 
"thief  be  an  outlaw  to  all  people."  The  law  of  Cnut  is 
to  the  same  effect,  but  the  punishments  differ,  as  I  have 
already  said. 


HISTORY  OF  MODERN  COURTS.  75 


CHAPTER  IV. 

THE  ORDINARY  CRIMINAL  COURTS — QUEEN'S  BENCH  DIVISION 
OF  THE  HIGH  COURT,  THE  COURTS  OF  ASSIZE,  THE  COURTS 
OF  QUARTER  SESSIONS,  COURTS  OF  SUMMARY  JURISDIC- 
TION,   FRANCHISE   COURTS,   WELSH   COURTS. 

^  Criminal  justice  is  in  the  common  course  of  things  ad-  Chap.  IV. 
ministered  in  the  present  day  by  the  Queen's  Bench  Division 
of  the  High  Court  of  Justice,  the  Assize  Courts,  the  Central 
Criminal  Court,  and-  the  County  and  Borough  Courts  of 
Quarter  Sessions.  I  propose  to  relate  the  history  of  these 
courts  and  that  of  the  courts  which  they  superseded  in  the 
present  chapter.  I  shall  relate  in  other  chapters  the  history  of 
Parliament  considered  as  a  court  of  criminal  jurisdiction,  the 
history  of  the  criminal  jurisdiction  of  the  Privy  Council  and 
that  of  the  Court  of  Star  Chamber.  ^  The  history  of  the  Ad- 
miralty Jurisdiction  will  be  considered  under  a  different  head. 

In  a  very  few  words  the  history  of  the  ordinary  courts  is 
as.  follows  :  Before  the  Conquest  the  ordinary  criminal  court 
was  the  County  or  Hundred  Court,  but  it  was  subject  to  the 
general  supervision  and  concurrent  jurisdiction  of  the  King's 
Court.  The  Conqueror  and  his  sons  did  not  alter  this  state 
of  things,  but  the  supervision  of  the  King's  Court  and  the 
exercise  of  his  concurrent  jurisdiction  were  much  increased 
both  in  stringency  and  in  frequency,  and  as  time  went  on 
narrowed  the  jurisdiction  and  diminished  the  importance  of 
the  local  court.  In  process  of  time  the  King's  Court  developed 
itself  into  the  Court  of  King's  Bench  and  the  Courts  of  the 
Justices  of  Assize,  Oyer  and  Terminer  and  Gaol  Delivery, 

^  For  the  constitution  of  tlie  existing  criminal  courts  stated  systematically, 
see  Dig.  Crim.  Froc.  pp.  9-16.  '^  See  post,  Ch.  XVI.  Vol.  11.  p.  1. 


76  SUMMARY. 

Chap.  IV.  or  to  use  the  common  expression,  the  Assize  Courts ;  and 
the  County  Court,  so  far  as  its  criminal  jurisdiction ,  was 
concerned,  lost  the  greater  part  of  its  importance. 

These  changes  took  place  by  degrees  during  the  reigns 
which  followed  the  Conquest,  and  were  complete  at  the 
accession  of  Edward  I. 

In  the  reign  of  Edward  III.  the  Justices  of  the  Peace  were 
instituted,  and  they,  in  course  of  time,  were  authorised  to 
hold  Courts  for  the  trial  of  offenders,  which  are  the  Courts  of 
Quarter  Sessions.  The  County  Court,  however,  still  retained  a 
separate  existence,  till  the  beginning  of  the  reign  of  Edward  IV., 
when  it  was  virtually,  though  not  absolutely,  abolished.  A 
vestige  of  its  existence  is  still  to  be  traced  in  Courts  Leet. 

The  Courts  of  summary  jurisdiction  have  been  established 
within  the  last  few  years. 

The  courts  above  mentioned  formed  and  form  the  regular 
provision  for  the  administration  of  criminal  justice  throughout 
England,  but  besides  them  the  right  of  administering  justice 
within  particular  local  limits  was  granted  by  way  of  franchise 
to  particular  persons,  either  in  their  individual  or  in  their 
corporate  capacity.  The  leading  features  of  their  history  are 
shortly  these :  The  judicial  authority  annexed  to  manors  has 
long  since  dwindled  to  almost  nothing,  though  some  traces 
of  it  may  be  discovered.  A  few  of  the  greatest  of  all  the 
franchises  (especially  the  Courts  of  the  Counties  Palatine, 
Chester,  Durham,  and  Lancashire),  were  annexed  to  the 
Crown  and  survived  as  mere  names  tUI  very  modern  times. 

The  franchise  of  the  City  of  London  was  merged  in  the 
Central  Criminal  Court  established  in  1834.  The  franchises 
of  the  other  cities  and  towns  corporate  were  of  an  extremely 
varied  character.  Most  of  them  were  regulated  as  far  as  the 
question  of  criminal  jurisdiction  is  concerned  by  the  Muni- 
cipal Corporations  Act  of  1834,  and  many  others  to  which 
that  Act  did  not  apply  have  become  obsolete  and  are 
forgotten,  although  they  have  never  been  formally  abolished. 

Lastly,  Wales  'became  a  part  of  England  by  several  suc- 
cessive steps,  from  the  reign  of  the  Conqueror,  downwards. 

This  is  the  outline  of  the  history  which  I  now  propose 
to  relate  more  fully. 


THE  ANCIENT  COUNTY  COURTS.  T] 


THE  COUNTY  COURTS. 

Nothing  can  be  more  definite  than  the  image  which  the  Chap.  IV. 
words  "  court  of  justice  "  raise  in  our  minds.     We  associate 
with  the  expression  a  large  room  arranged  in  a  particular 
way.      The    proceedings    follow    a    well-known    prescribed 
routine,  and  terminate  in  a  definite  result. 

Such  associations  would  be  misleading  if  they  were 
allowed  to  influence  our  conception  of  the  courts  of  the 
early  kings,  and  their  subjects  and  officers.  The  courts 
of  those  days  supplied  the  means  by  which  every  kind  of 
business  was  transacted,  and  had  probably  a  greater  resem- 
blance to  a  public  meeting  than  to  a  court  of  justice  in 
the  modern  sense  of  the  term.  This  was  true  of  all  courts 
whatever,  but  especially  of  the  County  Court,  which  was  in 
the  earliest  times  of  our  history,  and  continued  to  be  down  to 
the  reign  of  Edward  I,  if  not  later,  ^"the  Folkmoot, 
"  or  general  assembly  of  the  people,"  in  which  were  trans- 
acted all  the  more  important  branches  of  public  business, 
judicial,  financial,  and  military.  ^  The  sheriff  was  in 
early  times  "  the  king's  steward  and  the  judicial  president 
"  of  the  shire,  the  administrator  of  the  royal  demesne,  and 
"  the  executor  of  the  law."  It  is  impossible  to  determine 
precisely  the  relation  which  he  bore  to  the  Ealderman,  and 
the  extent  to  which  the  Bishop  took  part  in  or  controlled 
his  proceedings.  Such  questions  have  in  a  practical  point  of 
view  no  importance,  as  from  the  Conquest  at  all  events  the 
Ealderman's  office  merged  in  the  titular  dignity  of  an  earl, 
and  the  Bishop  acquired  a  separate  court  with  a  jurisdiction  of 
its  own  by  the  charter  of  William  I.  It  is  equally  difficult  to 
give  a  perfectly  clear  account  of  the  nature  of  the  sheriff's 
functions  in  criminal  trials.  He  convened  the  court.  He  no 
doubt  had  considerable  influence  over  its  decisions,  ^  but  the 
suitors  and  not  the  sheriff  were,  properly  speaking,  the  judges. 
Whatever  his  functions  may  have  been  and  whatever  may 

'  StiAbs,  ii.  205.  "-  76.  i.  113,  ^  n   ^^^-i. 


78  ILLUSTRATIONS. 

Chap.  IV.  have  been  the  nature  of  the  procedure  observed,  the  court 
itself  appears  to  have  been  a  representative  assembly  com- 
posed of  the  lords  of  lands  in  the  county  or  their  stewards, 
the  parish  priest,  and  the  reeve  and  four  men  from  each 
township.  The  character  of  the  court,  its  great  importance, 
and  the  fact  that  the  king  and  his  oflficers  had  concurrent 
jurisdiction  in  it  with  the  sheriff,  its  ordinary  president,  may 
be  gathered  from  the  few  remaining  reports  of  its  proceedings. 

^  "  The  great  suit  between  Lanfranc  as  Archbishop  of 
"  Canterbury,  and  Odo  as  Earl  of  Kent,  which  is  perhaps 
"  the  best  reported  trial  of  the  Conqueror's  reign,  was  tried 
"  in  the  County  Court  of  Kent,  before  the  king's  representa- 
"  tive  Gosped,  Bishop  of  Coutances,  whose  presence,  and  that 
"  of  most  of  the  great  men  of  the  kingdom,  seem  to  have 
"  made  it  a  Witenagemot.  The  Archbishop  pleaded  the 
"  cause  of  his  Church  in  a  session  of  three  days  on  Pennenden 
"  Heath ;  the  aged  South-Saxon  Bishop  Ethelric  was  brought 
"  by  the  king's  command  to  declare  the  ancient  customs  of 
"  the  laws,  and  with  him  several  other  Englishmen,  skilled 
"  in  ancient  laws  and  customs.  All  these  good  and  wise  men 
"  supported  the  Archbishop's  claim,  and  the  decision  was 
"  agreed  in,  and  determined  by,  the  whole  county." 

Of  course  the  cases  which  present  features  of  exceptional 
interest  or  solemnity,  are  those  which  are  reported  by  his- 
torians. It  is  only  by  accident  that  we  can  get  a  glimpse 
at  the  common  course  of  business,  by  which  ordinary  thieves 
or  murderers  were  brought  to  justice.  I  have  however  been 
fortunate  enough  to  be  referred  to  what  may  stand  for  a 
report  of  the  trial  of  a  common  thief,  in  the  reign  of 
Henry  II.  It  occurs  in  the  Materials  for  the  Life  of  Thomas 
Becket,  ^and  is  one  of  an  immense  number  of  stories  of 
miracles,  said  to  have  been  worked  by  his  intervention  after 
his  murder.  It  probably  has  the  same  sort  of  relation  to 
actual  fact  as  an  account  of  a  trial  by  a  modern  novelist 
would  have  to  what  actually  passes  in  courts  of  justice.  It 
relates  to  the  miraculous  cure  of  one  Ailward,  whose  eyes 

~i  Stubbs,  i.  277. 

■^  Published  by  the  Master  of  the  Rolls,  i.  165-7.  My  friend  Mr.  Froude' 
directed  my  attention  to  this  curious  story.  It  is  also  printed  in  Mr. 
Bigelow's  Plaeita  Anglo-Normanniea. 


CASE  OF  THEFT  UNDER  HENRY  II.  79 

and  other  organs  were  said  to  have  been  reproduced  after  he  Chap.  iv. 

had  been  mutilated  by  the  sentence  of  the  County  Court 

of  Bedford.     The  story  is  as  follows  :  "  Ailward's  neighbour 

"  owed  Ailward  a  debt,  and  when  he  was  asked  to  pay  it, 

"  refused ;  whereupon  Ailward,  in  a  rage,  broke   open  the 

"  house  of  his  debtor,  which  his  debtor,  %ho  had  gone  to  the 

"  public  house,  had  left  fastened  with  a  lock  hanging  down 

"  outside.     Ailward  took,  as  a  security,  the  lock,  a  whetstone 

"  hung  from  the  roof  of  the  house,  a  gimlet  and  tools,  and 

"  went  away.     The  children  who  were  playing  in  the  house, 

"  where  they  had  been  locked  up  by  their  father,  told  him 

"  how  the  house  had  been  broken  open,  and  how  the  thief 

"  had  carried  off  the  things.    The  father  followed  him,  caught 

"  him,  and,  wresting  the  whetstone  from  his   hand,  as  he 

"  sauntered,  wounded  his  head  with  it.     He  then  drew  his 

"  knife,  stabbed  him  through  the  arm,  and  taking  him  to  the 

"  house  into  which  he  had  broken,  bound  him  ^  as  an  open 

"  thief,  with  the  stolen  goods  upon  him.     A  crowd  collected, 

"  one    of  whom   was  Fulco  the  apparitor,  who   suggested, 

"  that  as  a  man  cannot  be  mutilated  for  stealing  under  the 

"  value  of  a  shilling,  the  stolen  goods  should  be  increased  by 

"  other  goods  alleged  to  be  stolen.     Accordingly  there  were 

"  laid  by  the  prisoner,  a  bundle,  a  pellium,  linen,  gowns,  and 

"  the  iron  tool  commonly  called  volgonum. 

"  Next  day  he  was  taken  with  the  aforesaid  bundle, 
"  which  was  hung  round  his  neck,  before  one  Richard 
"  the  sheriff  and  other  knights.  Lest  however,  in  a  matter 
"  of  doubt,  the  sentence  should  be  hurried,  judgment  was 
"  deferred.  He  was  kept  for  a  month  in  the  prison  at 
"  Bedford."  ^ 

1  "Ad  tabernam  digressus." 

^  "  Quasi  furem  manifestum  cum  concepto  furto.''  The  use  of  the  tech.- 
nical  terms  of  the  Eoman  law  is  noticeable. 

'  The  account  of  the  way  in  which  he  passed  his  time  in  prison  is  curious, 
though  not  relevant  to  the  matter  in  hand.  ' '  Interim  clam  vocato  pagano  pres- 
"  bytero  suos  excessus  omnes  ab  ineunte  setate  confessus  est,  et  monitus  est 
"  suffragia  beatse  Marise  sanctommque  omnium,  et  maxime  beati  Thomae 
"  quern  Dominus  virtutum  et  signorum  indiciis  glorificare  dignatus  est 
"  suppliciter  implorare,  omnem  iram  et  iucentivum  odiorum  ab  animo 
"  secludere,  de  Dei  misericordia  non  diffidere,  et  quicquid  pati  cogeretur 
"  asquanimiter  in  remissionem  peccatorum  continere,  et  eo  attentius  quod 
■'vigilia  Pentecostes  ipse  parvnlus  regeneratus  aquS  submergi  vel  igne  cre- 
"  mari  non  posset  sicut  vulgaris  habuit  opinio,  si  judicium  alterutrum  subi- 


8o 


CASE   OF   THEFT   UNDEB   HENRY   IL 


Chap.  IV.  After  this,  "it  happened  that  he  was  taken  to  Leighton 
"  Buzzard  where  the  magistrates  met  (magistratibus  con- 
"  venieniibus).  There  he  demanded  to  fight  Eulco  his  accuser, 
"  or  to  undergo  the  ordeal  of  fire,  but  '  with  the  assent  of 
"  Fulco  who  had  received  an  ox  for  it  (oh  id  vpsum  hovem 
"  acceperat)  he  was  condemned  to  the  ordeal  of  water,  so 
"  that  he  might  by  no  means  escape.  Thence  he  was  taken 
"  back  to  Bedford,  where  he  passed  another  month  in  prison. 
"  The  judges  met  there  (convenieniihus  judicibics),  and  when 
"  he  was  given  up  to  be  examined  by  the  ordeal  of  water, 
"  2  he  received  the  melancholy  sentence  of  condemnation, 
"  and  being  taken  to  the  place  of  punishment,  his  eyes 
"  were  pulled  out  and  he  was  mutilated,  and  his  members 
"  were  buried  in  the  earth,  in  the  presence  of  a  multitude 
"  of  persons."  The  rest  of  the  passage  describes  their 
miraculous  restoration. 

This  story  sets  in  a  vivid  light  the  procedure  of  the  old 
County  Court  in  a  common  case  of  theft.  The  thief  is 
arrested  with  the  goods  in  his  possession.  He  is  taken 
before  the  sheriff  and  other  knights,  and  committed  to 
Bedford  gaol.  Two  tourns  or  adjournments  of  the  County 
Court  are  held  in  successive  months,  one  at  Leighton, 
the  other  at  Bedford.  They  are  described  as  a  meeting 
of  magistrates  or  judges.  The  words  "  magistratus "  and 
"  judices  "  being  probably  used  in  a  popular  way,  and  no 
doubt  denoting  the  stewards  and  other  persons  of  local 
importance  who  were  present  at  the  County  Court.  The 
defendant    claims    the   trial    by  combat,   but,  ^(no   doubt 

' '  turus  esset,  virgamque  dedit  quS,  quinquies  in  die  suscept^  discipline  Dei 
"  miserioordiam  in  se  provocaret.  Qui  monita  libenter  audiens  circumducto 
"  iilo  corpori  suo  martyri  se  devovit,  emendation  em  vitfe  promibtens,  timens- 
"  que  sibi  panniculos  suos  diripi  in  dextro  humero  calido  ferro  signum  crucis 
"  impressit." 

1  Perhaps  at  the  suggestion  cmnuente  Fulcone.  It  is  difficult  to  under- 
stand why  Fulco  should^require  a  bribe  to  consent  to  his  enemy  being  sent  to 
the  kind  of  ordeal  which  appears  to  have  been  regarded  Avith  most  fear. 

'  "Damnationis  suee  tristem  excepit  senteutiam."  This  probably  means 
that  the  ordeal  went  against  him.  Can  it  mean  that  he  shrank  from  the 
ordeal  and  pleaded  guilty  ?  The  whole  passage  implies  that  the  ordeal  of 
water  was  more  dreaded  than  that  of  fire,  probably  because  it  gave  less  open- 
ing for  fraud. 

^  The  chronicler  obviously  wishes  to  make  the  best  of  his  hero  at  the 
expense  of  the  apparitor  Fulco  and  the  person  robbed,  but  we  haye  not  their 


CONCURRENT  JURISDICTION  OP  KING.  8 1 

because  his  guilt  was  considered  to  be  obvioiis),  is  adjudged  Chap.  IV. 
to  the  ordeal  of  water.  Hereupon  he  is  either  found  guilty 
or  confesses  his  guilt,  and  is  there  and  then  blinded  and 
mutilated.  When  we  remember  that  at  the  County  Courts 
or  meetings  held  in  this  manner  all  sorts  of  financial  and 
military  business  was  transacted,  that  it  was  in  them 
that  ^  charters  were  read,  and  other  proclamations  made, 
that  in  them,  ^  the  military  orders  of  the  sheriff  were 
published,  and  the  obligations  incident  to  military  tenure 
enforced,  and  finally,  that  in  them,  the  local  assessment  and 
collection  of  taxation  took  place,  it  is  obvious  that  the 
sheriffs  who  presided  over  them  were  at  the  head  of  the 
two  great  branches  of  government,  namely,  the  financial 
and  the  judicial  branch,  and  that  if  they  had  been  altogether 
independent  of  the  king  and  his  representatives,  they  would 
have  been  petty  kings,  each  in  his  own  county. 

In  the  reigns  of  the  Conqueror  and  his  sons  they  seem  in 
fact  to  have  held  some  such  position,  as  ^  there  are  many 
instances  in  which  the  office  of  a  justiciary  of  the  King's 
Court  was  united  with  that  of  the  sheriff  of  a  county. 
This  led  to  abuses  both  by  way  of  oppression  and  corruption 
which  caused  the  * "  Inquest  of  the  Sheriffs  "  held  in  1170 
by  the  orders  of  Henry  II.  On  that  occasion  all  the  sheriffs  in 
England  were  displaced  and  an  inquiry  was  made  into  their  con- 
duct byabody  of  justices  specially  appointed  for  that  purpose. 
This  however  was  only  an  isolated  measure,  and  does  not 
appear  to  have  changed  the  legal  position  of  the  sheriffs. 

The  judicial  authority  of  the  old  county  courts  has  been 
so  completely  superseded  by  other  tribunals  that  it  is 
difficult  to  form  a  clear  notion  of  the  manner  in  which  it, 
was  exercised,  nor  has  the  inquiry  any  practical  importance. 
It  seems  however  that  the  court  was  held  monthly  for 
general  purposes,  probably  at  the  county  town,  and  twice 
a  year  under  the  name  of  the  sheriffs'  tourn  or  circuit 
in  every  hundred  of  the  county  for  criminal  trials.  It 
also  appears  that  by  royal  grants  many   districts  such  as 

account  of  the  matter,  and  if  the  prisoner  really  was  innocent,  it  is  not  easy 
to  understand  the  extreme  penitence  ascribed  to  him. 

1  Stubbs,  576.  ^  Stubbs,  ii.  212,  3. 

3  Stubbs,  i.  192,  3.  *  Stubbs,  Charters,  147. 

VOL.    I.  G 


82  PLEAS   OF   THE   CROWN. 

Chat.  IV.  towns,  manors,  &c.,  were  exempted  from  the  tourn  and" 
■  provided  with  a  tourn  of  their  own  called  the  leet,  which 
was  held  not  before  the  sheriff  but  before  the  lord  of  the 
franchise  or  his  steward.  Many  of  these  leets  are  still  in 
existence,  and  their  proceedings  perhaps  give  a  better  notion 
of  the  ancient  criminal  procedure  than  is  to  be  got  from  books. 
I  shall  return  to  them  in  connection  with  that  subject. 

The  steps  by  which  the  criminal  jurisdiction  of  the 
County  Court  became  all  but  obsolete  can  still  be  traced 
with  fair  completeness.  In  the  very  earliest  times  the 
kings  when  they  granted  jurisdiction,  reserved  to  themselves 
particular  classes  of  cases.  Such  at  least  is  the  interpretation 
put  by  ^  Mr.  Stubbs  on  a  law  of  Cnut's.  ^ "  These  are 
"the  rights  which  the  king  enjoys  over  all  men  in  Wessex 
"  that  is  mund-lryce  (breach  of  the  king's  peace  or  special 
"protection),  and  ham-socn  (burglary),  ^forstal  (premedi- 
"tated  assault),  flymena-firth  (outlawry),  and  fyrd-wite 
"  (fines  for  neglect  of  military  duty),  unless  he  will  more 
"  amply  honour  any  one  and  concede  to  him  this  worship." 
Mr.  Stubbs  supposes  these  were  the  original  "  pleas  of  the 
"  Crown."  However  this  may  be,  it  is  certain  that  when 
Glanville  wrote  (in  the  days  of  Henry  II.)  the  distinction 
between  the  pleas  of  the  Crown  and  the  pleas  of  the  sheriff  was 
well  known.  He  states  it  at  the  beginning  of  his  first  book. 
*  "  Placitorum  aliud  est  criminal e,  aliud  civile.  Item 
"  placitorum  criminalium  aliud  pertinet  ad  Coronam  domini 
"  Regis,  aliud  ad  Vicecomites  provinciarum."  He  then  enu- 
merates the  pleas  of  the  Crown  as  treason,  concealment  of 
treasure  trove,  breach  of  the  king's  peace,  homicide,  arson, 
robbery,  rape,  crimen  falsi,  ''  Et  si  quae  alia  sunt  similia : 
"  quse  scilicet  crimina  ultimo  puniuntur  supplicio  aut  mem- 
"  brorum  truncatione."  The  crime  of  theft  (although  punished 
by  death  or  mutilation)  belongs  to  the  sheriffs,  and  to  them 
also  it  appertains  to  take  cognisance  of  frays  (medletis)  strokes 
and  wounds  "pro  defectu  dominorum  "  (I  suppose  this  means 
where  there  is  no  franchise),  "  unless  the  accuser  lays  the 
"  offence  to  be  against  the  king's  peace." 

'  Stubbs,  i,  187.  '  Thorpe,  i.  383  ;  Cnut,  Semlar  Laws,  12. 

'  Ante,  p.  66,  *  Glanville,  p.  1. 


ASSIZES  OF   CLARENDON   AND  NORTHAMPTON.  83 

By  the  assize  of  Clarendon  ^  it  was  provided  that  when  Chap.  IV. 
any  one  was  accused  before  the  sheriff  of  being  a  "  robator  ' 

"  vel  murdrator  vel  latro  vel  receptor  eorum  "  he  should  be 
sent  to  be  finally  disposed  of  before  the  justices  or  if  the 
justices  were  not  soon  to  come  into  the  county,  then  the 
sheriffs  were  to  send  word  to  the  nearest  justice,  and  send  the 
prisoners  to  such  place  as  the  justice  should  appoint. 

The  12th  article  of  the  assize  of  Northampton  ^  (a.d.  1176) 
also  provides  that  a  thief  {latro)  when  taken  is  to  be  in  the 
custody  of  the  sheriff,  or,  in  his  absence,  of  the  nearest 
castellanus,  but  the  justices  are  to  take  assizes  "de 
"  latronibus  iniquis  et  malefactoribus  terrse  "  (art.  7).  The 
language  of  the  rest  of  the  assize  seems  to  imply  that  the 
justices  were  to  try  prisoners  accused  of  all  serious  offences 
except  "  minutis  furtis  et  roberiis  quae  facta  faerunt  tempore 
"  guerrse  sicut  de  equis  et  bobus  et  minoribus  rebus."  These 
provisions  lay  down  no  distinct  proposition  as  to  the  powers 
of  the  sheriff,  but  they  imply  that  the  most  important  cases 
were  reserved  for  the  justices. 

The  24th  article  of  Magna  Charta  is  as  follows  : — "  Nul- 
"  lus  vicecomes  constabularius  coronatores  vel  alii  ballivi 
"  nostri  teneant  placita  corona?  nostrae."  What  the  "placita 
"  coronse"  meant,  in  1215,  it  is  impossible  to  say  precisely. 
They  must,  at  least,  have  meant  serious  crimes,  and  this 
enactment  cannot  have  had  a  less  effect  than  that  of  depriving 
the  Sheriff's  Court  of  all  criminal  jurisdiction  of  importance. 
The  sheriff's  tourn,  however,  was  not  expressly  abolished  by 
Magna  Charta.  It  was  held  for  centuries ;  not  for  the  sake 
of  trying  prisoners,  but  for  the  sake  of  taking  indictments 
which  were  anciently  presented  before  the  sheriff  in  his 
tourn  in  the  way  in  which  an  inquisition  is  now  made  before 
a  coroner.  A  man  can,  as  the  law  still  stands,  be  put  on  his 
trial  for  murder  or  manslaughter  on  a  coroner's  inquisition. 
Long  after  the  sheriffs  had  ceased  to  be  judges  they  con- 
tinued to  be  the  presidents  of  a  number  of  small  local  courts 
which  could  accuse  though  they  could  not  try.  Indeed,  till 
justices  of  the  peace  were  established,  the  sheriffs  and  coroners, 
and  the  grand  juries  at  the  courts  of  the  justices,  must  have 

1  Stubbs,  CTiaHers,  p.  143.  "  Ih.  157. 

G  2 


84  DECLINE  OF   COUNTY  COURTS. 

Chae.  IV.  discharged  the  duties  of  committing  magistrates.  Several 
traces  of  their  proceedings  in  this  respect  are  to  be  found  in 
the  Statute  Book.  Thus,  by  the  Statute  of  Westminster  2nd, 
13  Edw.  1,  c.  13  (1285),  it  is  enacted,  that  whereas  sheriffs 
have  frequently  extorted  money  by  imprisoning  persons  not 
lawfully  indicted  before  them  in  their  tourns  on  the  pretence 
that  they  were  so  indicted,  such  indictments  shall,  for  the 
future,  be  taken  by  lawful  men,  and  by  twelve,  at  least,  who 
are  to  put  their  seals  to  the  inquisition.  By  the  statute 
1  Edw.  3,  St.  2,  c.  17  (1330),  it  is  provided  that  the  indict- 
ments are  to  be  in  duplicate,  "  so  that  the  indictments  shall 
"  not  be  embezzled  as  they  have  been  in  times  past,  and  so 
"  that  one  of  the  inquest  may  show  the  one  part  of  the  inden- 
"  ture  to  the  justices  when  they  come  to  make  deliverance." 

In  the  course  of  the  following  century  the  jurisdiction  of  the 
sheriffs  both  as  judges  and  as  committing  magistrates,  having 
been  practically  altogether  displaced  by  the  Courts  of  the 
Justices  of  Assize  and  Quarter  Sessions,  and  by  the  justices  of 
the  peace,  the  tourns  became  a  mere  engine  of  extortion. 
"^Inordinate  and  infinite  indictments  and  presentments  as  well 
"  of  felony,  trespasses,  and  offences  as  of  other  things,"  were 
taken  before  sheriffs  and  their  subordinates  "at  their  tourns,  or 
"  law  days,"  which  indictments  were  "  oftentimes  affirmed  by 
"  jurors  having  no  conscience,  and  little  goods,  and  often  by 
"  the  said  sheriff's  menial  servants  and  bailiffs."  The  persons 
indicted  were  then  arrested  and  imprisoned,  and  "  constrained 
"  to  make  grievous  fines  and  ransoms "  to  procure  their 
liberty,  and  then  the  indictments  were  withdrawn.  To 
remedy  these  evils  the  sheriffs  and  their  bailiffs  were  for- 
bidden to  arrest  any  person  on  any  such  indictments  or 
presentments,  and  were  required  to  carry  them  before  the 
next  Court  of  Quarter  Sessions. 

From  this  time  the  sheriff's  tourn  became  practically 
obsolete,  as  it  could  neither  try  nor  accuse,  and  the  only 
remnant  of  the  ancient  criminal  jurisdiction  of  the  County 
Court  which  still  survived  was  to  be  found  in  the  leet, 
already  referred  to. 

I  now  pass  to  the  courts  by  which  the  County  Court  was 

'  1  Edw.  4,  c.  2. 


HIGH  COUET  OF  JUSTICE.  85 

superseded,   and   which    still    continue    to   administer   the  Chap.  IV. 
Criminal  Justice  of  the  country  in  all  common  cases.     These 
are  the  High  Court  of  Justice,  and  especially  the  Queen's 
Bench  Division  of  it ;  the  Courts  of  Assize ;  and  the  Courts 
of  Quarter  Sessions. 


THE  QUEENS  BENCH  DIVISION   OF  THE   HIGH  COUET  OF 
JUSTICE. 

The  kings  of  England  had,  from  a  period  much  earlier 
than  the  Conquest,  claimed  and  exercised  the  prerogative  of 
being  the  fountain  of  justice,  and  their  courts  had  been  the 
centres  in  which  all  the  most  important  of  the  national 
affairs  were  transacted.  In  particular,  in  one  way  or  an- 
other, the  whole  administration  of  justice  was  derived  from 
the  royal  authority.  As  has  been  shown  above,  the  king 
sat,  or  appointed  special  representatives  to  sit  for  him,  in  the 
■  County  Courts  whenever  he  thought  proper  to  do  so,  and  in 
granting  judicial  powers  to  particular  courts  or  persons,  he 
made  such  reservations  as  to  particular  classes  of  cases  as  he 
thought  fit.  ^  "  In  the  later  laws,"  says  Mr.  Stubbs,  "  the 
"  king  specifies  the  pleas  of  criminal  justice  which  he  retains 
"  for  his  own  administration  and  profit ;  such  a  list  is  given 
"  in  the  laws  of  Canute ;  breach  of  the  king's  protectionj 
"  house-breaking,  assault,  neglect  of  the  '  fyrd '  (military 
"  service),  and  outlawry.  These  were  the  original  pleas  of 
"  the  Crown,  and  were  determined  by  the  king's  officers  in 
"  the  local  courts." 

Under  the  Norman  kings  the  importance  and  influence  of 
the  King's  Court,  the  Curia  Kegis,  was  greatly  increased.  It 
seems  to  have  contained  the  germ  of  all  the  great  insti- 
tutions of  our  present  system  of  government,  though,  as  yet, 
they  were  not  distiuguished  from  each  other.  In  order  to 
form  a  distinct  conception  of  the  Curia  Eegis  as  it  was  under 
the  Norman  and  Angevin  kings,  we  must  bear  in  mind  two 
points  in  which  it  differed  widely  from  more  modern  insti- 
tutions known  to  us  as  courts,  whether  the  word  is  applied 
to  courts  of  justice  or  courts  held  for  purposes  of  State. 
1  Stubbs,  Oliarters,  HI. 


86  CURIA  REGIS. 

Chap.  IV.  The  first  point  is  that  the  Curia  Eegis  was  the  great  centre 
not  only  of  business  but  of  society.  In  an  often  quoted 
passage,  the  author  of  the  Saxon  Chronicle  says  of  the  Con- 
queror :  ^ "  Thrice  he  wore  his  crown  each  year,  as  oft  as  he 
"  was  in  England.  At  Easter  he  bare  it  in  Winchester,  at 
"  Pentecost  at  Westminster ;  at  midwinter  at  Gloucester ;  and 
"  there  were  with  him  all  the  rich  men  over  all  England, 
"  archbishops  and  diocesan  bishops,  abbots  and  earls,  thanes 
"  and  knights." 

The  following  description  of  thes  Curia  Eegis  is  given  by 
Madox,  ^who  has  collected  from  varidus  sources  nearly 
every  notice  which  can  be  fouiid  of  the  Court  and  its 
proceedings : — 

"  At  the  King's  Court,  and  more  especially  at  some  solemn 
"  times  of  the  year  he  held  his  great  councils,  and  ordinarily 
"  transacted  such  affairs  as  were  of  great  importance  or  re- 
'  quired  pomp  and  solemnity  according  to  the  custom  of  the 
"  times.  There  he  was  attended  by  his  barons  and  knights 
"  who  were  to  accompany  him  in  his  wars  and  expeditions. 
"  There  coronations,  marriages,  and  knighthoods  of  the  king's 
"  children,  and  solemnities  of  great  festivals  were  celebrated. 
"  There  was  placed  the  throne  or  sovereign  ordinary  court  of 
"judicature,  wherein  justice  was  administered  to  the  sub- 
"  jects  either  by  the  king  or  his  high  justicier.  There  was 
"  the  conference  of  the  nobility  and  prelates  who  used  to  be 
"  near  his  royal  person  ;  and  there  the  affairs  of  the  royal 
"  revenue  were  managed  by  the  king  himself  or  (most  usually) 
"  by  his  justicier  barons  and  prelates  employed  therein  by  his 
"  command. 

^  p.  294.  The  following  passage  from  an  early  clii'onicler  gives  a  vivid 
picture  of  the  social  side  of  a  Court.' — "Henricus  Rex  Junior"  (the  son  of 
Henry  II.)  "adnatale  fuit  a  But  Juxta  Baiocum,  et  quia  tuuoprimum  tenehat 
"  curiam  in  NormanniS,  voluit  ut  magnifice  festivitas  celebraretur.  Interfuerunt 
' '  episcopi,  abbates,  oomites,  barones,  et  multa  multis  largituS  est.  Et  ut 
"  appareat  multitudo  eorum  qui  interfuerunt,  cum  "Willermus  de  Sancto 
"  Johanne  Normanniae  procurator  et  Willermus  Filius  Hermonis  senescallus 
"  Britannise  qui  veuerat  cum  Gaufrido  duce  Britannise  domino  suo  come- 
' '  derunt  in  quadam  camera,  prohibuerunt  ne  quis  miles  coniederet  in  eadem 
"  camera,  qui  non  vooaretur  Willermus,  et  ejectis  aliis  de  camerS,  remanserunt 
"  117  milites  qui  omnes  vocabantur  Willermi  exceptis  plurimis  aliis  ejusdem 
"  nominis  qui  comederuut  in  aulS,  cum  rege. "  (R.  de  Monte.  520.)  See  too 
Froissart's  account  of  the  Court  of  the  Count  of  Foix  in  the  third  volume  of 
the  Chronicles, 

'  Hist.  JExch.  i.  p.  1-163,  chapters' i.  ii.  iii.     See  also  Stubbs,  Cons.  Hist.  i.  xi. 


CURIA  REGIS.  87 

"  This  may  serve  for  one  view  of  the  King's  Court.  To  Chap.  IV. 
"  vary  the  prospect,  let  us  take  a  view  of  it  another  way.  The 
"  realm  of  England  was  anciently  deemed  one  great  seigneury 
"  or  dominion,  of  which  the  king  was  sovereign  or  chief  lord  ; 
"  having  under  him  many  barons  or  great  lords,  and  many 
"  knights  and  military  tenants,  besides  soccagers,  burgesses, 
"  and  others.  In  order  to  survey  the  court  of  this  chief  lord 
"  of  the  regnum,  or  terra  Angliae,  we  may  consider  him  as 
"  residing  in  his  palace  and  surrounded  by  his  barons  and 
' '  officers  of  state.  The  baronage  attending  on  his  royal  person 
"  made  a  considerable  part  of  his  court.  They  were  his 
"  homagers.  They  held  their  baronies  of  him.  He  was 
"  their  sovereign  or  chief  lord,  and  they  were  his  men  as  to 
"  life,  limb,  and  earthly  honour.  They  were  called  Pares  or 
"  Peers,  as  they  were  peers  or  convassales  of  his  court,  peers 
"  to  one  another,  and  all  of  them  liege-men  to  their  chief  lord 
"  the  king.  As  peers  they  had  an  immediate  relation  to  his 
"  court.  In  that  respect  they  are  styled  h.\&fideles  and  fami- 
"  Hares,  his  liege-men  and  domestics,  and  harones  citrice  regis. 
"  With  them  the  king  consulted  in  weighty  affairs,  and  did 
"  many  solemn  acts  in  their  presence  and  with  their  concur- 
"  rence.  They  or  such  of  them  as  ordinarily  attended  in  the 
"  King's  Court,  by  his  command  were  (together  with  some 
"  of  the  bishops  and  prelates)  concerned  in  managing  the 
"  affairs  of  the  revenue  and  in  distributing  public  justice  in 
"  causes  brought  into  the  King's  Court :  and  came  in  process 
"  of  time  to  be  called  the  conciliarii  or  concilium  regis,  the 
"  King's  Council,  and  some  of  them  held  and  executed  the 
"  respective  minisieria,  or  great  affairs  of  the  King's  Court." 

Another  point  which  ought  not  to  be  forgotten  in  relation 
to  the  King's  Court  is  its  migratory  character.  The  early 
kings  of  England  were  the  greatest  landowners  in  the  country, 
and  besides  their  landed  estates  ^they  had  rights  over  nearly 
every  important  town  in  England,  which  could  be  exercised 

1  "In  Hereford  in  the  time  of  Edward  the  Confessor,  for  instance,  when 
"  the  king  went  to  hunt,  one  person  went  from  each  himse  to  the  stand  or 
"  station  in  the  wood.  Other  tenants  not  having  entire  masures  found  three 
"  men  to  guard  the  King  when  he  came  into  the  city."  "  Six  smiths  made 
"  120  nails  from  the  King's  iron."  There  were  seven  moneyers,  and  "when 
"  the  King  came  to  the  city  they  were  hound  to  coin  as  much  of  his  silv«r 
"  into  pence  as  he  demanded." — Ellis's  Introduction  to  Domesday,  iL  195. 


88 


MIGRATORY  CHARACTER  OF    CURIA  REGIS. 


Chap.  IV.  only  on  the  spot.  They  were  continually  travelling  about 
from  place  to  place,  either  to  consume  in  kind  part  of  their 
revenues,  or  to  hunt  or  to  fight.  ^  Wherever  they  went  the  great 
officers  of  their  court,  and  in  particular  the  Chancellor  with 
his  clerks,  and  the  various  justices  had  to  follow  them. 
The  pleas,  so  the  phrase  went,  "  followed  the  person  of  the 
"  king,"  and  the  machinery  of  justice  went  with  them. 

Two  remarkable  illustrations  of  this  feature  in  the  old 
courts  and  of  their  consequences  to  suitors  may  be  given. 
Sir  Thomas  Hardy  has  prepared  from  the  Patent  Rolls  an 
ephemeris  of  King  John's  reign,  from  which  it  appears  that 
between  May  23  and  the  end  of  December,  1213,  his  move- 
ments were  as  follows  ; — May  23,  Ewell ;  26,  Wingham  ;  28, 
Dover ;  30,  Wingham ;  June  3,  Chilham  ;  5,  Ospring ;  6, 
Eochester;  10,  Ospring;  11,  Chilham;  13,  Battle  5  16,  Por- 
chester ;  17,  Bishopstoke ;  21y  Corfe ;  25,  Camford  ;  27,  Beer 
Regis ;  29,  Corfe ;  30,  Bishopstoke.  In  July  he  was  in  Dor- 
chester. In  August,  amongst  other  places,  at  Marlborough, 
Clarendon,  Winchester,  and  Northampton.  In  September 
at  Nottingham,  Southwell;  York,  Darlington,  Dutham, 
Knaresborough  and  Pontefract.  In  October  at  Westminster 
Rochester,  and  Clarendon,  and  in  the  course  of  November 
and  December  at  Oxford,  Gloucester,  Reading,  Guildford, 
St.  Albans,  Waltham,  and  the  Tower.  On  Christmas  Day 
he  was  at  Windsor.  He  was  then  at  the  Tower  again,  and 
on  the  30th  December  again  at  Waltham. 

The  effect  of  this  mode  of  life  upon  the  suitors  arid  the 
administration  of  justice  is  shown  by  the  ^  history  of  the 
plea  of  Richard  dAnesty  in  the  King's  Court.  It  begins 
"  These  are  the  costs  and  charges  which  I,  Richard  de  Anesty 
"  bestowed  in  recovering  the  land  of  William  my  uncle,"  and 
it  proceeds  to  enumerate  the  various  journeys  which  he  took 
to  get  writs,  to  get  "  days  "  given  him  by  the  king  and  the 
justices,  and  to  keep  the  days  so  given.     The  history  fills 

'  So  late  as  the  year  1300  it  was  enacted  (28  Edw.  1,  c.  5)  that  the  Chan- 
cellor and  the  Justices  of  the  King's  Bench  should  "  follow  him  so  that  he 
' '  may  have  at  all  times  near  unto  him  some  sages  of  the  law  which  be  ahle 
"  only  to  order  all  such  matters  as  shall  come  unto  the  Court  at  all  times 
"  when  need  shaU  require."  Indian  magistrates  and  commissioners  on  tour  in 
their  districts  and  divisions  are  at  times  followed  by  pleas  like  the  early 
English  kings.  '  Palgrave,  Commonwealth,  ii.  ix. — xxvii. 


.THE  PLEA  OF  D'ANESTY.  89 

nearly  nineteen  '4to  pages.     The  litigation  lasted  more  than  c^ap.  IV. 

iive  years  (1158-1163).  It  involved  journeys  by  d'Anesty  and  ' 

others  to  the  following  amongst  other  places,  Normandy,  SaHs- 

bury,    Southampton,    Ongar,    Northampton,   Southampton, 

Winchester,    Lambeth,    Maidstone,    Lambeth,    Normandy, 

Canterbury,  Avinlarium   (supposed   by  Sir   F.  Palgrave   to 

be  Auvilar  on  the  Garonne),  Mortlake,  Canterbury,  London, 

Stafford,  Canterbury,  Wingham,  Eome,  "Westminster,  Oxford, 

Lincoln,  Winchester,  Westminster,  Eumsey,^  Eome,  London, 

Windsor,   and  at   last  Woodstock.     The   principal  question 

in    d'Anesty's    case    was    whether    a    marriage    was    void 

by   reason    of    a    precontract.      This    was    regarded    as   a 

matter  of  ecclesiastical   cognisance,   and  involved  questions 

in  the  Spiritual   courts   and   an   appeal  to  Eome,  but  the 

different  steps  in  the  case   strongly  illustrate  the  meaning 

of  "  following  "  a  plea.     Here  is  a  specimen  of  the,  narrative; 

^ "  After  I  had  fined  with  the  King,  my  Lord  Eichard   de 

"  Lucjr  by  the  king's  precept  gave  me   a  day  for  pleading 

"  at  London  at  mid-Lent ;  and  there  was  then  a  Council ;  and 

"  I  came  there  with  my  friends  and  my  helpers ;  and  because 

"  he  could  not  attend  to  this  plea  on  account  of  the  king's 

"  business  I  tarried  there  for  four  days  and  there  I  spent  fifty 

"  shillings.     From  thence  he  gav^  me  a  day  on  the  clause  of 

"  Easter,  and  then  the  King  and  my  Lord  Eichard  de  Lucy 

"  Were  at  Windsor;  and  at  that  day  I  came  with  my  friends 

"  and  helpers  as  many  as  I  could  have.  ;  .     And  because  my 

"  Lord  Eichard  de  Lucy  could  not  attend  to  this  plea  on 

"  account  of  the  plea  of  ^  Henry  de  Essex,  the  judgment  was 

"  postponed  until  the  King  should  come  to  Eeading,  and  at 

^'  Eeading  in  like  manner  it  was  postponed  from  day  to  day 

"  until  he  should  come  to  Wallingford.     And  from  thence 

"  because  my  Lord  Eichard  was  going  with  the  King  to  Wales, 

"  he  removed  my  plea  into  the  court  of  the  Earl  of  Leicester 

"  at  London ;  and  there  I  came  .  ^  .  .  and  because  I  could  not 

^  The  Pope  had  directed  his  iirst  writ  to  the  Bishop  of  Chichester  arid  the' 
Abhot  of  Westminster,  of  which  the  King  disspprovedi  requiring  one  directed 
to  himself.  D'Anesty  sent  a  messenger  for  it,  "a,nd  ia  that  journey  the, 
"  messenger  spent  fifty  shillings." 

^  P.  xxii. 

'  This  is  the  trial  of  Henry  de  Essex  for  treason.  It  is  refewed  to  in  Mr. 
Carlyle's  Past  and  Present. 


90  DIVISION  OF  CUEIA  EEGIS. 

Chap.  IV  "  get  on  at  all  with  my  plea  I  sent  to  the  Lord  Richard  in 
"  Wales  to  the  end  that  he  might  order  that  my  plea  should 
"  not  be  delayed ;  and  then  by  his  writ  he  ordered  Ogerus 
"  Dapifer  and  Ealph  Brito  that  without  delay  they  should 
"  do  justice  to  me :  and  they  gave  me  a  day  at  London.  I 
"  kept  my  day.  .  .  .  From  thence  my  adversaries  were  sum- 
"  moned  by  the  king's  writ  and  also  by  the  Lord  Richard's 
"  writ  that  they  should  come  before  the  king  :  and  we  came 
"  before  the  king  at  Woodstock  and  there  we  remained  for 
"  eight  days,  and  at  length,  thanks  to  our  lord  the  king  and 
"  by  judgment  of  his  court,  my  uncle's  land  was  adjudged 
"  to  me."  The  history  concludes  with  an  account  of  the  money 
which  Anesty  had  to  borrow  from  Jews  for  the  expenses — 
mostly  travelling  expenses — of  his  plea,  usually  at  the  rate 
of  a  groat  a  week  for  the  pound,  which  is  nearly  87  per  cent, 
per  annum. 

The  King's  Court  which  led  this  wandering  life,  and  which 
at  intervals  brought  together  all  the  most  powerful  and 
brilliant  members  of  the  community,  had  its  standing  officers 
and  organisation.  It  was  divided  into  two  great  departments, 
the  Curia  Regis  and  the  Exchequer,  which  may  be  compared 
to  the  different  sides  or  departments  of  one  court.  In  the 
Curia  Regis  justice  was  administered,  matters  of  state  were 
debated,  and  public  ceremonials  of  all  kinds  were  celebrated. 
In  the  Exchequer  were  managed  all  affairs  relating  to  the 
revenue.  ^It  seems  to  have  been  stationary,  at  least  many 
of  its  officers  were  stationary,  and  the  treasure  itself  was  kept 
in  one  place.  The  Exchequer  had  an  organisation  of  its  own 
which  I  need  not  describe.  The  two  departments  however 
were  intimately  connected.  All  the  great  officers  of  the 
Curia  Regis  had  seats  in  the  Exchequer  and  were  described 
as  Barons  of  the  Exchequer.  Moreover  the  administration 
of  justice,  particularly  the  functions  of  the  Justices  in  Eyre, 
not  only  contributed  largely  to  the  revenue  by  fines  and 
amercements  but  were  the  means  by  which  some  branches 
of  the  revenue  were  collected.  Hence  the  Curia  Regis  and 
the  Exchequer,  though  separate  in  name,  and  to  some  extent 

'  See  the  Dialogus  de  Seaccario,  printed  in  Madox,  vol.  ii.,  and  also  in 
Stubbs's  Select  Charters. 


CURIA-  REGIS  AS  A  CRIMINAL   COURT.  91 

different  in  their  functions  may  be   considered   as  forming  Chap.  IV. 
collectively  one  great  institution. 

^  The  great  officers  who  held  the  most  conspicuous  places 
both  in  the  Exchequer  and  in  the  Curia  Kegis  were  seven 
in  number,  namely  the  Chief  Justiciar,  the  Constable,  the 
Marshal,  the  High  Steward,  the  Chamberlain,  the  Chancellor, 
and  the  Treasurer.  Besides  them  there  were  an  indeter- 
minate number  of  justices  distinguished  by  no  particular 
title. 

"The  Chief  Justiciar  was  the  first  and  greatest  officer 
"  of  the  King's  Court."  "  When  the  king  was  beyond  sea 
"  he  governed  the  realm  like  a  viceroy."  "  Next  to  the 
"  king  he  presided  in  the  Curia  Eegis  as  chief  judge  both 
"  in  criminal  and  civil  causes."  "He  presided  likewise  in  the 
"  King's  Exchequer,  having  the  superior  care  and  guidance 
"  of  the  Koyal  Revenue." 

This' great  office  was  held  by  ^Odo  of  Bayeux  and  William 
Fitz  Osborne  under  the  Conqueror,  by  *  William  Flambard 
(for  many  years)  under  William  Rufus,  by  Roger  of  Salis- 
bury under  Henry  I.,  by  Richard  de  Lucy  under  Stephen 
and  Henry  II.,  and  by  Ranulf  de  Glanville  also  in  Henry 
II. 's  time.  The  last  of  the  Chief  Justiciars  was  Hubert  de 
Burgh  in  the  reign  of  Henry  III. 

In  thei  Curia  Regis  the  Norman  kings  exercised  as 
well  in  criminal  as  in  civil  cases,  the  original  and  appellate 
jurisdiction  which  had  been  perhaps  the  greatest  of  the 
prerogatives  of  their  predecessors,  and  many  trials  of  the 
greatest  importance  took  place  in  it.  For  instance, 
*Waltheof  was  condemned  to  death  at  the  court  held  at 
Westminster  by  the  Conqueror  at  Christmas  1074. 

^In  1096  William  Rufus  held  his  court  at  Windsor. 
"  There  Godfrey  Bainard  accused  William  de  Ou,  the  king's 
"  kinsman,  of  treason  and  vanquished  him  in  single  combat ; 
"  whereupon  the  king  commanded  William  de  Ou  to  be 
"  blinded  and  otherwise  mutilated,  and  his  dapifer  (one 
"  William  by  name)  to  be  hanged ;  and  there  Euda,  Count 

^  Madox,  Eist.  Eaxh.  chap.  ii.  pp.  30—80.  "^  lb.  p.  31. 

3  lb.  p.  32.  "  Stubbs,  i.  371. 

^  Mad.  i.  89,  quoting  Hoveden  and  Saxon  Chronicle. 


92  COURT  OF   COMMON   PLEAS. 

Chap.  IV.  «  of  Champagne,  the  king's  son-in-law,  and  many  others 
"  were  deprived  of  their  lands,  and  others  were  taken  to 
"  London  and  there  executed."  ^In  the  reign  of  Henry  I. 
the  famous  Kobert  Belesme  was  tried  in  the  King's  Court 
upon  no  less  than  forty-five  charges  of  outrages  of  various 
kinds. 

2  In  1184  (30  Hen.  2)  Gilbert  de  Plumtun  Knight  was 
accused  before  the  king  by  Glanville  the  high  justiciary  of  a 
rape,  and,  according  to  Hoveden,  would  have  been  hanged  if 
the  king  had  not  pitied  him,  suspecting  Glanville's  motives. 

Other  instances  are  to  be  seen  in  Madox  of  the  exercise 
of  the  jurisdiction  of  the  Curia  Eegis.  I  will  now  pro- 
ceed to  trace  the  steps  by  which  nearly  all  the  most  im- 
portant of  our  existing  courts  of  justice  were  derived  from 
it.  The  industry  of  Madox  ^has  collected  evidence  that  the 
expression  "  Common  Bench "  or  "  Bank "  is  older  than 
the  reign  of  King  John,  and  it  is  highly  probable  that 
some  distribution  of  the  business  of  the  Curia  Regis  whereby 
civil  actions  might  be  assigned  to  one  division  of  the  court 
might  take  place  during  the  reign  of  Henry  II.,  when  its  busi- 
ness increased  so  much,  and  when  the  spirit  of  judicial  and  ad- 
ministrative reform  was  so  active ;  but  however  this  may  be, 
there  is  no  doubt  that  a  grea,t  and  indeed  decisive  step  in  this 
direction  was  made  by  the  17th  Article  of  Magna  Charta 
in  1215,  which  is  in  these  words,  "  Communia  placita 
"  non  sequantur  curiam  nostram  sed  teneantur  in  aliquo  loco 
"  certo."  The  reasons  of  this  enactment,  and  the  evils  which 
it  was  intended  to  remedy  are  sufficiently  illustrated  by  the 
account  already  given  of  the  plea  of  de  Anesty  and  of  the 

^  Mad.  i.  93 ;  Stubbs,  i.  371.  Robert  de  Belesme  is  one  of  the  most  pro- 
minent characters  in  the  history  of  Ordericus  Vitalis,  and  his  career  supplies 
an  excellent  specimen  of  the  sort  of  disorders  which  the  royal  power  had  at 
that  time  to  deal  With. 

^  Eodem  anno  cum  Gilbertus  de  Plumtun  miles  nobili  prosapia  ortus 
ductus  esset  in  vinculis  usque  Wigorniam  et  accusatus  easet  de  raptu  coram 
Domino  Rege  a  Ranulfo  de  Glanvilla  Justiciario  Anglise,  qui  eum  condem- 
nare  volebat,  injusto  judicio  judicatus  est  suspendi  in  patibulo,  &c.  Rex 
pietate  dommotus  cousilioqile  suorum  prsecepit  sic  (custoditum)  eum  manere 
donee  ipse  aliud  de  eo  fieri  prtecepisset.  Sciebat  enim  quod  per  invidiam 
fecerat  hseo  illi  Ranulfus  de  Glanvilla,  qui  eum  morti  tradere  volebat  propter 
uxorem  suam,  &c.  Sic  itaque  miles  ille  a  morte  liberatus  usque  ad  obitum 
regis  fuit  incaroeratus  per  R.  de  Glanvilla.  Hoveden,  quoted  by  Madox, 
i.  20. 

'  Hist.  Exch.  vol.  i.  chap.  xix.  pp.  787 — 801. 


COURT   OF   king's  BENCH.  93 

travels  of  King  John.     This  was  the  origin  of  the  Court  of  Chap,  IV. 
Common  Pleas  which  from  that  day  to  this  (1882)  has  been 
held  in  Westminster  Hall.^ 

The  Court  of  Exchequer  was  always,  as  I  have  already 
observed,  to  some  extent  separate  from  the  rest  of  the  Curia 
Eegis,  and  was  also  to  some  extent  stationary.  It  gradually 
became  a  separate  court. 

The  Court  of  King's  Bench  represented  so  much  of  the  ordi- 
nary jurisdiction  of  the  Curia  Regis  as  was  not  appropriated 
to  the  Common  Pleas  and  the  Exchequer.  It  had  no  definite 
known  beginning  as  a  separate  institution,  but  the  following 
points  in  relation  to  it  may  be  noticed.  The  name  "  Curia 
Hegis  "  begins,  according  to  Madox,  to  cease  to  be  used  in  the 
Records  after  the  enactment  of  Magna  Charta,  and  the  pleas 
which  would  have  been  described  as  being  held  in  the  Curiq, 
Regis  are  said  to  be  held  coraTn  ipso  rege.  This  form  of 
expression  corresponds  to  the  style  which  belonged  to  the 
Judges  of  the  Court  of  Queen's  Bench  down  to  its  abolition, 
"the  Justices  of  our  Lady  the  Queen  assigned  to  hold  pleas 
"before  the  Queen  herself"  It  also  corresponds  to  the 
singular  ^  legal  fiction  which  supposed  the  king  to  be  in 
some  mystical  way  personally  present  in  the  Court  of 
Queen's  Bench  (it  may  be  in  all  the  superior  courts)  which 
was  the  reason  assigned  for  the  extreme  severity  with  which 
contempts  of  such  courts  might  be  punished. 
'  It  is  also  to  be  observed  that  Hubert  de  Burgh;  the  famous 
minister  of  Henry  III.,  was  the  last  person  who  held  the 
office  of  Chief  or  High  Justiciar.     The  powers  of  the  office 

^  Madox  observes  that  even  after  Magna  Gharta  there  were  some  excep- 
tions to  the  rule  which  it  laid  down,  but  these  are  of  no  practical  importance. 

^  "However,  it  is  certain  that  by  the  common  law  which  continues  to 
"  this  day,  striking  in  Westminster  Hall,  where  the  king  is  only  present  as 
"  represented  by  his  judges  and  by  their  administration,  distributing  justice 
"  to  his  people,  is  more  penal  than  any  striking  in  another  place  in  his  actual 
"  presence ;  for  the  latter  is  not  punished  with  the  loss  of  hand  unless  some 
' "  blood  is  drawn,  nor  even  then  with  the  loss  of  lands  or  goods ;  but  if  a 
"  person  draw  his  sword  on  any  judge  in  the  presence  of  the  Court  of  King's 
"Bench,  Chancery,  Common  Pleas,  or  Exchequer,  or  before  the  justices 
"  of  assize,  or  oyer  and  terminer,  whether  he  strike  or  not ;  or  strike  a  juror, 
"  or  any  other  person  with  or  without  a  weapon,  he  shall  lose  his  hand  and 
"  his  goods,  and  the  profits  of  his  lands  during  his  life,  and  suffer  perpetual 
"  imprisonment,  if  the  indictment  lay  the  offence  as  done  coram  domino 
"  regc."  1  Hawkins,  p.  62  (edition  of  1824),  and  see  on  this  subject  E.  v. 
Lord  Thanet  and  others.     27  State  Trials,  822. 


94  QUEEN  S  BENCH  DIVISION   OF  HIGH  COUET. 

Chap.  IV.  indeed  were  so  exorbitant  that  they  were  too  great  for  a 
subject,  and  it  is  a  not  improbable  conjecture  (though  there 
seems  to  be  a  complete  absence  of  positive  historical  evidence 
on  the  matter)  that  the  offices  of  Lord  Chief  Justice  of  the 
King's  Bench,  Lord  Chief  Justice  of  the  Common  Pleas, 
and  Lord  Chief  Baron  of  the  Exchequer  were  instituted  in 
order  to  discharge  the  different  duties  which  had  formerly 
belonged  to  the  Chief  Justiciar.  The  exact  date  at  which 
these  changes  were  made  is  uncertain,^  but  the  three  courts 
were  distinguished  from  each  other  before  the  accession  of 
Edward  I.  The  lists  of  the  Chief  Justices  of  the  King's 
Bench  and  the  Common  Pleas,  go  back  to  the  begin- 
ning of  the  reign  of  that  king.  The  lists  of  the  Lord  Chief 
Barons  to  the  middle  of  the  reign  of  Edward  II. 

We  have  thus  arrived  at  the  Court  of  King's  Bench. 
From  the  reign  of  Edward  I.  to  the  year  1875  it  continued 
to  be  the  Supreme  Criminal  Court  of  the  Realm,  with  no 
alterations  in  its  powers  or  constitution  of  sufficient  import- 
ance to  be  mentioned  except  that  during  the  Commonwealth 
it  was  called  the  Upper  Bench. 

In  1875  the  Judicature  Act,  of  1873  was  brought  into 
operation,  and  the  Courts  of  Common  Law  and  of  Equity, 
aU  of  which  had  been  originally  derived  from  the  Curia 
Eegis,  or  the  powers  of  one  of  its  members,  the  Lord  Chan- 
cellor, were  reunited  under  the  name  of  the  High  Court  of 
Judicature.  The  Court  of  Queen's  Bench  thereupon  lost 
its  ancient  title,  which  however  survives  in  the  name  of 
the  Queen's  Bench  Division,  and  its  Chief  Justice  became 
the  Lord  Chief  Justice  of  England,  a  title  which  almost 
literally  reproduces  that  which  was  borne  by  Lucy,  Glanville, 
and  de  Burgh.  The  High  Court  of  Judicature,  and  more 
particularly  the  Queen's  Bench  Division  of  that  Court, 
is  thus  the  representative  of  the  Curia  Regis  in  its  capacity 
of  a  Court  of  Criminal  Justice.  It  will  be  interesting  to 
enumerate  shortly  the  particulars  of  the  jurisdiction  which 
it  thus  inherits. 

In  the  first  place  the  Curia  Regis  had  original  jurisdiction 
in  all  cases  whatever.     The  same  is  the  case  with  the  High 
>  Stubbs,  Cmis.  Hist.  ii.  266-7. 


HIGH,  COURT  AND    CURIA  REGIS.  95 

Court  of   Judicature.     There  is  no  offence,  from  the  most  Chap.  IV, 
serious  to  the  most  trivial,  from  high  treason  to  a  petty 
assault,  which  the  High  Court  is  not  competent  to  try. 

In  the  second  place  the  High  Court  has  succeeded  to  what 
I  have  described  in  general  terms  as  the  appellate  jurisdic- 
tion of  the  Curia  Regis.  This  jurisdiction  is  of  two  kinds. 
The  High  Court  may  issue,  hear,  and  determine  (subject 
to  a  further  appeal  to  the  House  of  Lords)  writs  of 
error.  A  writ  of  error  is  an  order  for  the  production  of  the 
record  of  proceedings  before  an  inferior  court  founded  upon  an 
allegation  on  the  part  of  a  person  aggrieved,  that  the  record 
will  show  that  the  proceedings  were  erroneous,  for  which 
reason  they  ought  to  be  quashed.  This  proceeding  in  the 
present  day  affords  a  mode  of  trying  questions  of  law  rela- 
tive to  procedixre,  but  not  questions  as  to  the  correctness  of 
the  judge's  direction  to  the  jury  or  as  to  the  admissibility  of 
evidence,  or  as  to  errors  of  fact  committed  by  the  jury. 

In  the  third  place  the  High  Court  may  in  its  discretion 
issue  a  writ  of  certiorari,  by  which  it  can  direct  any  inferior 
court  to  send  to  the  High  Court  any  indictment  which  may 
be  found  before  the  inferior  court,  in  order  that  it  may  be 
tried  either  before  the  High  Court  or  before  a  judge  of  the 
High  Court  either  in  London  or  on  the  circuit.  This  power 
is  in  some  particular  cases  regulated  by  statute,  but  it  is 
perfectly  general,  and  is  in  continual  use  in  cases  in  which  for 
any  reason  a  trial  in  the  ordinary  course  appears  likely  to  be 
unsatisfactory. 

The  writ  of  error  and  the  writ  of  certiorari  are  both  as  old 
as  the  common  law,  and  their  very  form  and  the  nature  of 
their  contents  distinctly  show  that  they  are  the  stated  esta- 
blished way  of  exercising  that  superintendence  over  inferior 
courts,  which,  as  I  have  pointed  out,  formed  one  of  the  most 
important  branches  of  the  Royal  Prerogative  ages  before  the 
Norman  Conquest,  and  was  exercised  by  the  Curia  Regis 
after  that  event  and  down  to  the  time  of  the  institution 
of  the  Court  of  King's  Bench. 

It  is  a  curious  question,  though  perhaps  the  solution  would 
not  be  worth  the  trouble  necessary  to  arrive  at  it,  how  far,  at 
different  periods  of  its  history,  the  Court  of  King's  Bench  was 


96  CEIMINAL  JURISDICTION   OF  HIGH  COUET. 

Chap.  IV.  ™  practice  as  well  as  in  theory  a  court  for  the  trial  of  common 
criminal  cases.  Till  the  year  1872  the  grand  jury  of  Middle- 
sex used  to  be  summoned  every  term,  but  indictments  were 
so  very  seldom  preferred  before  them,  that  in  that  year  an  Act 
(35  &  36  Vic.  c.  52)  was  passed  providing  that  it  should  no 
Idnger  be  necessary  to  summon  the  grand  jury  unless  the 
master  of  the  Crown  Office  has  notice  of  bills  to  be  sent 
before  them,  in  which  case  they  may  still  be  summoned.  It 
has  been  usual  to  present  such  bills  in  cases  of  great  public 
interest  and  importance  only.  The  last  instance  of  the  kind 
which  occurs  to  me  was  the  prosecution  of  Governor  Eyre,  in 
1866,  for  misdemeanour  in  sending  Mr.  Gordon  for  trial  to 
Morant  Bay,  in  Jamaica,  in  order  that  he  might  be  tried 
before  a  Court-martial.  Criminal  cases  are  not  very  un- 
frequently  removed  by  certiorari  into  the  High  Court,  and 
tried  at  the  sittings  at  Nisi  Prius;  but  these  are  almost 
always  misdemeanours  partaking  more  or  less  of  the  charac- 
ter of  private  wrongs,  as  indictments  for  libel,  conspiracy 
to  defraud,  or  the  like.  Proof,  however,  still  exists  that  in 
ancient  times  the  criminal  business  of  the  Court  was  exceed- 
ingly important,  and  came  from  all  parts  of  England.  In  the 
Second  Appendix  to  the  Third  Report  of  the  Deputy  Keeper 
of  the  Public  Records  (Sir  F.  Palgrave)  are  a  considerable 
number  of  calendars  and  records,  showing  the  amount  of 
criminal  bixsiness  done  in  the  Court  of  King's  Bench  in 
various  terms  between  1477  (17  Edw.  4)  and  1547  (37  Hen. 
8).  It  appears  from  these  that  the  Court  was  largely  occupied 
at  that  time  by  trying  all  sorts  of  criminal  cases  arising  in 
every  part  of  the  country.  To  give  a  few  instances.  In 
Trinity  Term,  1477  (April  29  to  June  20),  sixteen  writs  of 
certiorari  issued,  to  bring  up  for  trial  cases  which  had  occurred 
in  other  parts  of  England.  Of  these  four  were  murders 
from  Stafford,  Warwick,  Nottingham,  and  London,  respec- 
tively. There  were  five  cases  of  robbery,  two  complicated  with 
forcible  entry;  two  forcible  entries;  a  conspiracy;  two  thefts, 
and  two  assaults.  In  Easter  Term,  1501  (16  Hen.  7), 
twelve  cases  were  brought  into  court  by  certiorari,  including 
cases  of  theft,  burglary,  riot,  and  forcible  entry.  It  thus 
appears  that  the  criminal  trials  held  in  the  Court  in  those 


COURTS  OI*  ASSIZE.  97 

"days  must  have  formed  a  considerable  branch  of  its  business.  Chap.  IV. 

Those  trials  which  were  held  -in  the  term  were  as  they  still  are       

called  trials  at  Bar.   Those  which  were  held  after  term  and  put 
in  a  list  with  civil  causes  were  said  to  be  tried  at  Nisi  Prius. 


^THE   COURTS  OF   ASSIZE. 

I  come  now  to  consider  the  history  of  the  Courts  of  Assize. 
These  courts  are  not  so  much  derived  from,  as  of  equal  anti- 
quity with  the  Curia  Regis,  and  appear  to  me  to  be  the 
means  by  which  the  king  exercised  that  concurrent  juris- 
diction with  the  County  Courts  which,  as  I  have  already 
observed,  formed  one  of  the  most    important   and  ancient 
branches   of  his   prerogative.     This  concurrent  jurisdiction 
seems  from    the   very   first   to    have   been   exercised   most 
frequently  not  by  calling  the  suitors  to  the  King's  Court, 
but  by  sending  representatives    of    the   King's   Court   to 
preside   in  the  local   tribunal.     The  king   himself  in  very 
ancient  times,  as  appears  from  the  instances  already  given, 
sat    on    particular   occasions   in   the    County  Court,  but   it 
is  natural  to  suppose  that  he  would  more  frequently  dele- 
gate such  a  function  to  others.     Sufficient  evidence  to  show 
that  in  fact  he  did  so  is  still  in  existence.   ^Mr.  Stubbs  men- 
tions many  persons  besides  the  chief  Justiciars  who  acted 
as  "  Justiciarii,"  during  the  reign  of  Henry  I.  and  other  in- 
stances are  mentioned  by  Madox.     ^Thus: — "In  the  year 
"  1124,  the  King  (Henry  I.)  being  in  Normandy  between  St. 
"  Andrew  and  Christmas,  Ralf  Basset  and  the  King's  thanes 
"  held  a  council  of  the  nobles  at  Hundhoge  in  Leicestershire 
"  and  caused  execution  to  be  done  on  many   malefactors." 
The  Pipe  Roll  of  1130  mentions  (according  to  Mr.  Stubbs)  ten 
justices  of  whom  Ralph  and  another  Basset  were  two.    These, 
however,  are  matters  which  need  not  detain  us,  as  Bracton 
in  his  third  book  gives  an  account  of  the  office  of  the  justiciar 

'  Dig.  Crim.  Proe.  art.  23. 

2  Stubbs,  Oons.  Hist.  ii.  388-9, 

5  Madox,  i.  12.  Quoting  from  Hoveden,  "  snspeiiderunt  ibi  tot  fures  quot 
"  antea  nunquam  scilicet  in  parvo  temporis  spatio  omnino  quatuor  et 
' '  quadraginta  vires,  sex  item  viros  privarunt  oculis  et  testiculis,  admodum 
"  gravis  i'uit  hie  annus." 

VOL.   1.  H 


98  JUSTITIAEII   OF   CURIA   REGIS. 

Chap.  IV.  in  the  reign  of  Henry  III.  so  full  and  precise  as  to  render 
any  other  authority  superfluous. 

1  He  mentions  as  distinct  the  "  Aula  regia,"  and  its  "  Justi- 
"  tiarios  capitales  qui  proprias  causas  regis  terrainant,"  and 
the  "  curiam  et  justitiarios  in  banco  residentes,"  but  upon 
the  whole  it  appears  from  his  work  that  whatever  special 
titles  they  might  have  on  particular  occasions,  the  justices 
were  a  body  of  royal  officers  of  uncertain,  or  at  least,  of 
unspecified  number,  who  were  capable  of  being  and  habitually 
were  employed  upon  a  great  variety  of  different  duties  ac- 
cording to  the  commissions  directed  to  them  from  time  to 
time.   After  giving  many  different  forms  of  writs  he  concludes 
thus  :  2 "  Et  infiniti  sunt  casus  et  formse  infinite  quibus  con- 
"  stituuntur  justitiarii,  secundum  quod  inferius  videri  poterit 
"  in  multis  locis.       Sed  hsec  ad  prsesens  sufficiant  exempli 
"  causS,."     He  gives  many  forms  of  the  commissions  which 
were  issued  to  particular  justices  in  particular  cases.     The 
king,  he  says,  ' "  Habet  justitiarios  itinerantes  de  comitatu 
"  in  comitatum  quandoque  ad  omnia  placita,  quandoque  ad 
"  qufedam  specialia,  sicut  assisas  novae  disseisinse  et  mortis 
"  antecessoris  capiendas,  et  ad  gaolas  deliberandas,  quandoque 
"  ad  unicam  vel  duas  et  non  plures"  (causas).     In  *  another 
place  he  says  that  the  power  of  the  justices  depends  on  their 
commission,  but  that  it  is  complete  in  regard  to  the  whole 
of  the  cause  or  causes  to  which  the  commission  extends  down 
to  judgment  and  execution.     Various  forms  of  writs  are  given 
which   invest  the  justice  with  a  jurisdiction  more  or  less 
extensive  according  to  circumstances.  ^  In  one  case  the  words 
are,  "Ad  itinerandum  per  comitatum  talem,  vel  comitatus 
"  tales  A.  de  omnibus  assisis  et  placitis  tarn  coronse  nostra 
"  quam  aliis."     In  another  the  power  is  limited  to  the  pleas, 
"  quae  emerserint  postquam  justitiarii  nostri  ultimo  itiner- 
"  averunt  in  comitatu  illo."     In  some  cases  the  commission 
would  authorise  a  goal  delivery,  in  others  not. 

'  See  Bracton,  De  Legihus,  iii.  (De  Actionibus)  vii.  2  (De  diversitate  Justi- 
tiariorum)  vol.  ii.  pp.  160—207  iu  Sir  H.  Twiss's  edition.  '  P.  206. 

'  P.  160,  aud  see  p.  180,  where  tMs  is  repeated  in  substance. 

*  "  Est  autem  eorum  potestas  quod  ex  quo  lis  commissa  est  causa  una  vel 
' '  plures  licet  simplioiter  extenditur  eoram  jurisdictio  ad  omnia  sine  quibus 
"  causa  terminari  non  potest,  quantum  ad  judicium  et  executionem  judioii." 
—P.  182.  6  P.  184. 


JUSTICES   IN    EYRE.  99 

It  is,  I  think,  commonly  supposed  that  the  Court  of  the  Chap.  IV. 
Justices  in  Eyre,  first  brought  into  prominence  by  Henry  II. 
though  not  originally  established  by  him,  was  a  special  insti- 
tution differing  in  kind  from  the  courts  of  the  other 
justices.^  I  think  that  this  view  is  mistaken,  and  that 
it  has  introduced  an  appearance  of  confusion  and  ob- 
scurityinto  what  is  really  a  simple  matter.  There  was  never 
any  standing  institution,  known  as  the  Court  of  the 
Justices  in  Eyre  or  the  Court  of  the  Justices  of  Gaol 
Delivery.  The  difference  lay  in  the  commissions  which 
the  king  issued  in  different  terms  to  the  same  persons 
as  occasion  required.  From  the  very  earliest  period  of 
English  history  the  king  exercised  his  prerogative  of  justice 
locally  by  the  agency  of  commissioners  authorised  to  try 
particular  causes  or  classes  of  causes  in  particular  places. 
The  cases  to  be  tried  and  the  local  limits  of  the  juris- 
diction were  determined  by  the  terms  of  the  commission. 
These  commissions  were  issued  by  the  Conqueror  and  his 
sons,  and  by  Henry  II.  his  sons  and  grandson  to  their 
"justitiarii,"  just  as  they  are  issued  by  Her  Majesty 
in  the  present  day  to  the  Judges  of  the  High  Court  of 
Judicature.  At  the  present  day  the  judges  act  under 
three  commissions  (Assize  and  Nisi  Prius,  Oyer  and 
Terminer,  and  Gaol  Delivery)  if  Civil  as  well  as  Criminal 
business  is  to  be  taken  at  the  Assizes ;  under  two  only 
(Oyer  and  Terminer  and  Gaol  Delivery)  if  all  criminal 
business  is  to  be  taken;  and  under  one  only  (Gaol 
Delivery)  if  a  particular  gaol  is  to  be  delivered,  but 
prisoners  on  bail  are  not  to  be  tried.  In  the  days  of 
Henry  I.,  Henry  II.,  and  Henry  HI.,  the  authority  of  the 
justice  was  limited  by  the  extent  of  his  commission  in  pre- 
cisely the  same  manner.  As  to  the  eyre,  every  justice  deputed 
to  a  particular  place  was  "  in  eyre,"  or  as  we  should  say, 
"on  circuit."  No  doubt  there  were  justices  who  by  way 
of  pre-eminence  were  described  as  the  Justices  in  Eyre,  and 
there  can  also  be  no  doubt  that  Henry  II.  first  systematised 

1  See  e.g.  fourth  Institute,  ch.  27,  28,  30,  33,  34.  There  is  a  full  history 
of  all  matters  connected  with  the  Courts  of  Assize  in  the  judgment  of 
Willes  J.,  ex  parte  Fernandez,  10  C.B.,  N.S.  42-57. 

H   2 


lOO  OUIGIN   OF   CIRCUITS. 

.Chap.  IV.  ttiese  eyres,  and  divided  the  country  into  circuits  each  of 
which  was  allotted  to  one  set  of  judges,  and  he  may  thus 
be  described  as  the  founder  of  the  system  of  circuits.  He 
was  not,  however,  the  founder  of  the  system  of  the  local 
administration  of  justice  by  Royal  Commissioners  appointed 
to  take  Assizes,  to  hear  and  determine  pleas,  and  to  deliver 
gaols.  This  system  was  probably  as  old  as  the  doctrine  that 
the  king  is  the  fountain  of  justice.  That  it  was  older  than 
the  establishment  of  the  circuits  is  certain.  The  establish- 
ment of  the  circuits  is  usually  dated  from  1176,  ^when 
Henry  II.  divided  the  country  into  six  parts  and  appointed 
eighteen  itinerant  justices  for  them,  but  2]\|/[a,dox  quotes 
from  the  Exchequer  Rolls  a  long  series  of  the  names  of 
justices  errant  from  1170,  of  whom  some  were  appointed 
"  for  pleas  of  the  Crown  or  common  pleas,  and  for  imposing 
"  and  setting  the  assizes  or  tallages  on  the  king's  demeans," 
and  others  "  for  pleas  of  the  Crown  and  common  pleas  "  only. 
Moreover  the  language  of  the  Assize  of  Clarendon  (1166) 
implies  that  in  all  parts  of  England  justices  either  came 
(no  doubt  on  circuit  and  with  commissions  of  gaol  delivery 
or  oyer  and  terminer),  or  were  accessible  at  short  intervals. 
After  providing  for  the  arrest  of  robbers  and  murderers,  the 
Assize  goes  on  to  say,  that  when  persons  are  arrested  for 
robbery  or  murder,  "if  the  justices  are  not  to  come  soon 
^'  into  the  county  in  which  the  prisoners  are  in  custody,  the 
"  sheriffs  are  to  send  to  'the  nearest  justice  by  some  intelligent 
"  person  to  say  that  they  have  taken  such  prisoners,  and  the 
"  justices  are  to  send  back  to  the  sheriffs  to  say  where  they 
"  wish  the  prisoners  to  be  brought  before  them,  and  the 
"  sherifis  shall  bring  them  before  the  justices."  This  implies 
that  even  if  it  was  not  intended  to  send  justices  into  any 
given  county  at  a  particular  time,  there  would  always  be  a 
justice  in  the  neighbourhood,  and  this  implies  that  at  least 
ten  years  before  the  institution  of  regular  circuits,  the  practice 

1  "Commiini  omnium  concilio  divisit  regnum  suum  in  sex  partes;  per 
"  quarum  singulas  tres  justitiarios  itinerantes  oonstituit  quoram  nomina  lisee 

' '  sunt,  &c. " — Hoveden,  quoted  in  Madox,  Mx.  i,  1 8,  and  see  1  Stubbs,  Cons.  .. 
Bist.  602. 

2  i.  123-140. 

^  The  words  axR  propinquiori  judUitc  (intlie  singular)  in  this  plu-ase. 


COMMISSIONS   OF  EYRE,  lOI 

of  issuing  commissions  for  the  local  administration  of  criminal  ckap.  IV. 
justice  by  the  king's  justices  was  common.  "' 

The  great  peculiarity  of  the  circuits,  established  by  Henry  II., 
and  continued  for  a  great  length  of  time  after  his  death,  was 
the  multiplicity  of  business  imposed  upon  the  justices. 
They  were  not  only  to  dispose  of  the  civil  and  criminal  liti- 
gation of  their  circuit,  but  to  preside  over  many  branches  of 
the  king's  revenue,  and  see  to  the  enforcement  and  preserva- 
tion of  all  his  rights.  This  is  clearly  shown  by  the  articles  of 
the  general  summons  given  in  Bracton,  whose  ^  treatise  "De 
"  Corona  "  may  be  regarded  as  the  foundation  to  a  consider- 
able extent  of  English  criminal  law.  "^A.  general  summons  to 
sheriffs  of  the  counties  on  the  circuit  was  issued,  requiring 
them  to  summon  by  good  summoners  all  archbishops,  bishops, 
abbots,  priors,  counts,  barons,  knights,  and  freeholders  of 
their  entire  bailiwick,  and  of  each  vill  four  lawful  men  and 
the  reeve,  and  of  each  borough  twelve  lawful  burgesses 
"  et  omnes  alios  qui  coram  justitiariis  itinerantibus  venire 
"  Solent  et  debent."  In  a  word,  the  sheriff  was  to  convene 
the  full  county  court  for  the  transaction  of  all  the  business 
committed  to  the  justices.  The  first  business  done  was  the 
criminal  business,  according  to  a  mode  of  procedure  which  I 
shall  describe  fully  hereafter.  After  this,  inquiry  was  to  be 
made  as  to  the  king's  wards,  as  to  marriages,  advowsons, 
escheats,  serjeanties,  purprestures  (encroachments),  measures, 
wines,  franchises.  Christian  usurers,  the  chattels  of  Jews 
slain,  coinage,  outlaws,  markets,  new  tolls,  and  a  great  many 
other  particulars  relating  to  the  revenue  and  other  rights  of 
the  king.  ^  Their  enumeration  fills  several  pages  of  Bracton, 
and  I  think  the  only  adequate  way  of  describing  them  is  by 
saying  that  their  collective  effect  is  to  require  the  justices  to 
undertake  a  general  review  of  the  whole  administration  of 
the  country.  The  articles  apparently  were  varied  from  time 
to  time  and  to  suit  particular  circumstances. 

*Thus  Bracton  gives  the  form  of  a  summons,  convening 
a   Court    at    Shipwey,   before  justices    for    the    liberty   of 

1  -2  Bracton,  by  Twiss,  p.  284-581. 

■■'  See  the  form,  2  Bracton,  188. 

'  Pages  241-53  (half  of  them  are  an  English  translation  hy  Sir  T.  Twiss). 

^  ii.  253. 


I02  CHAJSGE   FROM   EYRES   TO   ASSIZES. 

Chap.  IV.  the  Cinque  Ports.  It  authorises  them  to  inquire,  amongst 
other  things,  "de  navibus  captis  in  guerra  et  traditis,  per 
"  1  Wil.  de  Wroteham,  et  quis  illas  habeat  vel  quid  de  illis 
"  actum  sit." 

What  further  process  was  to  be  had  upon  the  returns  made 
by  the  justices  I  am  unable  to  say,  as  Bracton  is  silent  on 
the  subject ;  but  probably  the  records  of  the  eyre  would  be 
made  up  and  forwarded  to  the  exchequer,  and  form  the  basis, 
or  at  all  events  part  of  the  materials,  for  the  strict  account 
which,  as  appears  from  the  Dialogus  de  scaccario,  the  sheriff 
of  every  county  had  to  pass  every  year.  This,  however, 
does  not  fall  within  my  subject. 

It  is  enough  for  me  to  point  out  that,  on  the  circuits  insti- 
tuted by  Henry  II.,  and  commonly  distinguished  as  "eyres" 
by  way  of  pre-eminence,  the  administration  of  criminal 
justice  was  treated,  not  as  a  thing  by  itself,  but  as  one 
part,  perhaps  the  most  prominent  and  important  part,  of  the 
general  administration  of  the  country,  which  was  put  to 
a  considerable  extent  under  the  superintendence  of  the 
justices  in  eyre.  Nor  is  this  surprising  when  we  consider 
that  fines,  amercements,  and  forfeitures  of  all  sorts  were 
items  of  great  importance  in  the  royal  revenue.  The  rigorous 
enforcement  of  all  the  proprietary  and  other  profitable  rights 
of  the  Crown  which  the  articles  of  eyre  confided  to  the 
justices  was  naturally  associated  with  their  duties  as  adminis- 
trators of  the  criminal  law,  in  which  the  king  was  deeply 
interested,  not  only  because  it  protected  the  life  and  property 
of  his  subjects,  but  also  because  it  contributed  to  his  revenue. 

The  transition  from  the  eyres,  described  by  Bracton,  to 
the  assize  courts  of  our  own  days  may  still  be  traced.  As 
I  have  already  shown,  the  commissions  under  which  civil  and 
criminal  justice  was  administered  were  distinct  from  the 
articles  of  the  eyre,  and  were  probably  much  more  ancient. 
The  eyres  were  converted  into  circuits,  in  our  sense  of  the 

^  Sir  T.  Twias  says  that  he  was  a  famous  sea-captain  and  Keeper  of  the 
King's  ports,  who  died  in  the  second  or  third  year  of  Henry  III.  He  had 
been  Archdeacon  of  Taunton  in  1204,  and  was  Keeper  of  the  King's  Galley 
during  the  reign  of  King  John.  Sir  T.  Twiss  supposes  the  writ  to  have 
been  the  first  issued  to  the  barons  of  Hastings  after  the  conclusion  of  the 
general  war  at  the  commenceineut  of  Henry  Ill's  reign. 


DISUSE  OF  EYRES. 


103 


word,  simply  by  confining  the  commissions  issued  to  the  Chap.  IV, 
justices  to  those  which  are  still  issued  (assize  and  nisi  prius  ' — 
for  civil  business,  oyer  and  terminer  and  gaol  delivery  for 
criminal  business),  and  by  dropping  the  financial  and  adminis- 
trative matters  contained  in  the  articles  of  eyre.  It  would 
be  a  waste  of  labour  to  attempt  to  ascertain  precisely  by 
what  steps  this  change  was  carried  out,  but  the  nature  and 
reasons  of  the  process  are  obvious  in  themselves  and  have 
left  traces  by  which  they  are  sufficiently  explained. 

It  is  obvious  that  such  an  inquiry  as  would  be  necessary  to 
execute  fully  the  articles  of  eyre  given  in  Bracton  would  be 
cumbrous  in  the  extreme,  and  would  be  burdensome  to  the 
public  in  direct  proportion  to  the  degree  in  which  it  was 
profitable  for  the  Crown.     So  obvious  was  this  that  the  eyres 
became  septennial  early  in  the  thirteenth  century,  and  con- 
tinued to  be  so  throughout  the  reign  of  Henry  III.  and  into  that 
of  Edward  I.    In  the  Parliament  Rolls  a  variety  of  references' 
to  the  subject  occur,  which  prove  that  the  holding  of  the 
eyre  was  regarded  as  a  great  public  burden.     Edward  III. 
and  Richard  II.  upon  the  petition  of  the  Commons  agreed  to 
suspend  it  on  various  occasions  for  a  greater  or  less  period. 
The  following  references  suffice  to  prove  this : — In  a.d.  1.348 
(22  Edw.  3),  the  Commons  make  it  a  condition  of  an  aid' 
for  the  war  in  France  that  ^ "  Eyres  des  justices  en  le  meen 
"  temps,  si  bien  des  forestes  come  des  communes  Pleez  et 
"  general  enquerrez  par  tote  la  terre  cesse."     The  petition 
connected  with  this  grant  marks  the  distinction  between 
financial  and  judicial  business.     "  Que  nul  Eyre  des  Forestes 
"  le  roi  ni  de  la  roigne,  ne  de  prince  soit  duraunt  la  guerre, 
"  ne  autres  Eyres,  n'Enquerrez  fors  la  justice  de  la  pees  en 
"  chescun  pays  de  mesme  le  pays  d'oyer  et  terminer  come  au 
"  drein  parlement  estoit  priez."     The  petition  is  continued  on 
the  same  page.     "  Prie  la  commune  que  les  commissions  de 
"  generals  Enquerrez  et  tons  maners  des  Eyres  des  justices 
"  cessent  de  tut  durant  les  trois  aunz  tan  que  I'eide  a  vous  a 
"  ceste,  parlement   grauntez   soit  levez."      (Answer.)      "II 
"  semble  eue  conseil  que  tieux  Enquerrez  cessent  en  eese  du 
"  poeple  s'il  plest  au  roi,  si  sodeigne  necessite  ne  surveigne." 
1  2  Rot.  Par.  200,  a. 


I04  DISUSE  OF   EYRES. 

Chap.  IV.  ^I^  1371.(45  Edw.  3),  a  petition  was  granted  that  the  king 

would  issue  no  commission  of  eyre  or  trailbaston  during  the 

war,  "  fors  qe  en  horrible  cas."  ^  There  is  a  similar  petition  in 
1377  (1  Rich.  2),  that  there  may  be  no  eyre  nor  trailbaston 
for  the  war,  or  for  twenty  years,  but  this  was  refused,  ^and 
another  in  1382  (6  Rich.  2)  which  was  granted  for  two 
years.  The  fullest  and  most  instructive  notice  of  the  subject 
which  I  have  found  in  the  Parliament  Rolls  occurs  in  the 
*  Parliament  Roll  of  1362  (36  Edw.  3).  The  Commons 
had  asked  for  a  general  pardon  of  "  all  manner  of  articles 
"  of  eyre  except  pleas  of  land,  quo  warranto,  treason,  robbery, 
"  and  other  felonies  punishable  by  loss  of  life  or  member." 
The  Council  had  said  that  they  regarded  the  petition  as 
prejudicial  to  the  king,  and  the  Commons  thereupon  explain 
that  they  did  not  wish  the  king  to  give  up  anything  which 
would  injure  his  Crown  permanently,  such  as  "  escheats, 
"  wardships,  marriages,  fees,  advowsons,  serjeanties,  rents, 
"  services,  lordships,"  and  many  other  matters,  but  that  they 
wished  him  to  pardon  "  trespasses,  misprisions,  negligences, 
"  and  ignorances  "  committed  before  the  then  parliament,  and 
all  "  articles  of  eyre,  the  punishment  of  which  would  involve 
"  fine  or  ransom  or  other  money  punishments,  amercements 
"  of  counties  and  towns,  and  charges  upon  the  heirs  of 
"  coroners, •sheriffs,  and  other  royal  officers."  ^A  general 
pardon,  of  all  such  articles  of  eyre  was  granted  in  1397  (21 
Rich.  2). 

I  have  not  taken  the  trouble  to  try  to  ascertain  precisely 
the  history  of  the  gradual  disuse  of  these  commissions.  In 
Coke's  ^ionithlnstitute,  they  are  spoken  of  as  things  of  the  past, 
and  in  the  first  Institute  it  is  said  that  '' "  as  the  power  of  the 
"  justices  of  assize  by  many  acts  of  parliament  and  other  com- 
"  missions  increased,  so  these  justices  itinerant  by  little  and 
"  little  vanished  away."  I  think  it  much  more  probable  that, 
as  the  king  came  to  depend,  more  and  more  upon  parliamen- 
tary grants  of  money,  and  less  and  less  on  his  land  revenue 
and  casual  profits,  the  commissions  of  Oyer  and  Terminer,  gaol 

1  2  Rot.  Par.  305,  a.  2  3  j^gt^  p^^_  24,  a,  and  see  pp.  90-96 

'  -^i-  138,  b.  -  2  Rot.  Par.  272,  a,  b. 

=  3  Rot.  Par.  369.  6  Fourth  Inst.  184. 

'  Co.  Litt.  514. 


COMMISSIONS   OF   GAOL  DELIVERY.  I05 

delivery,  assize  and  Nisi  Frius  superseded  the  commissions  chap.  IV. 
containing  fiscal  articles.        ' 

The  history  of  the   commissions   of  gaol   delivery  is  as 
follows  :    Their  origin  is  matter  of  conjecture.      They  are 
probably  as  ancient  as  the  gaols  ^themselves,  and   as  the 
local   administration   of  justice  by   royal   officers.     At  all 
events  they   are   repeatedly  mentioned  by  Bracton.     The 
systematic  periodical  issue  of  such  commissions  was,  how- 
ever, a  consequence  of  the  establishment  of  the  periodical 
issue  of  Commissions  of  Assize.     The  word  "Assize"  was 
used  in  a  great  variety  of  senses.     In  some  cases  it  meant  a 
law,  as  in  the  expressions  "  The  Assize  of  Clarendon,"  "  The 
"  Assize  of  Jerusalem."     It   also  meant   a  jury,  as  in  the 
expression   "The   Great    Assize,"  which    is   employed    by 
Glanville,   and  to  which  I  shall  have   to  return.     It  also 
meant  the  form  of  action  in  which  trial  by  a  jury  took  place, 
as   in  the   expression,   "The    Assize   of  Novel  Disseisin," 
"  The  Assize  of  Mort  d' Ancestor."      These  actions,  which 
were  mostly  for  the  recovery  of  land  or  rights  connected 
with  land  formed  the  most  important  part  of  the  litigation 
of  early  times,  and  the  first  Commissions  of  Assize  were 
commissions  for  the  trial  of  such  actions.     They  formed  an 
independent  part  of  the  business  of  the  justices  in  eyre,  and 
were  to  be  held  much  more  frequently.     ^It  was  provided  by 
the  18th   Chapter  of  Magna  Charta,  that  the  king  or   in 
his   absence   abroad   his   Chief  Justiciar  should   send   two 
justices  into  every  county  four  times  a  year  to  take  assizes 
of  novel  disseisin,  mort  d'ancestor,  and  darrein  presentment. 
This,  says  ^  Mr.  Stubbs,  was  in  the  following  year  altered  to 
once  a  year.     I  am  not  aware  of  any  enactment  in  very  early 
times  as  to  the  degree  of  frequency  with  which  assizes  were 
to  be  held,  but  it   was  enacted  by  13  Edw.  1,  c.  30  (a.d. 
1285),  *  that  they  should  be  held  three  times  a  year  at  most. 
And  in  1299,  it  was  enacted  by  27  Edw.  1,  c.  3,  that  justices 

1  A  gaol,  properly  speaking,  is  a  cage.  See  2  Palgraye's  Commonwealth, 
clxvi,"  Tlie  Assize  of  Clarendon  (ch.  vii.)  provides  for  the  making  of  gaols 
•where  they  do  not  exist,  the  wood  being  provided  out  of  the  royal  forests. 
See  Stubbs's  Charters,  p.  144. 

2  Stubbs,  Charters,  299.  '  Jb.  141. 
*  "  Capiant  assisas  predietas  et  attiiictas  ad  plus  ter  per  annum." 


I06  COMMISSIONS   OF   OYER   AND   TERMINER. 

Chap.  IV.  appelated  to  take  assizes  should  also  "  deliver  the  gaols  of 
"  the  shires  as  well  within  liberties  as  without  of  all  manner 
"  of  prisoners,  after  the  form  of  gaol  deliveries  of  those 
"  shires  beforetime  used."  This  statute  shows  that  com- 
^  missions  of  gaol  delivery  were  well  known  in  1299;  and  it 
would  secure  their  being  issued  as  often  as  the  Commissions 
of  Assize  were  issued  according  to  the  13  Edw.  1,  that  is  to 
say,  not  more  than  three  times  a  year. 

The  next  statute  relating  to  them  is  2  Edw.  3,  passed: 
in  1328,  which  provides  that  "good  and  discreet  persons, 
"  others  than  of  the  places,  if  they  may  be  found  sufficient 
"  shall  be  assigned  in  all  the  shires  of  England  to  take 
"  assizes,  juries,  and  certifications,  and  to  deliver  the  gaols, 
"  and  that  the  said  justices  shall  take  the  assizes,  juries,  and. 
"  certifications,  and  deliver  the  gaols  at  the  least  three  times 
"  a  year,  and  more  often  if  need  be." 

From  that  time  to  the  present  commissions  of  gaol  delivery 
have  regularly  been  issued,  and  form  one  of  the  authorities 
under  which  the  Judges  of  Assize  now  execute  their  office. 

The  commissions  of  Oyer  and  Terminer  are  found  in  exist- 
ence at  the  same  time  as  the  commissions  of  gaol  delivery, 
though  I  am  not  prepared  to  cite,  either  from  Glanville  or 
from  Bracton,  any  instance  in  which  the  expression  is  used. 

The  first  express  mention  of  them  with  which  I  am  ac- 
quainted is  in  the  statute  13  Edw.  1,  c.  29  (a.d.  1285),  which 
taken  in  connection  with  some  subsequent  authorities  throws 
considerable  light  on  their  nature.  They  were  either  general 
or  special.  General  when  they  were  issued  to  commissioners 
whose  duty  it  was  to  hear  and  determine  all  matters  of  a 
criminal  nature  within  certain  local  limits,  special  when  the 
commission  was  confined  to  particular  cases.  Such  special 
commissions  were  frequently  granted  at  the  prayer  of  par- 
ticular individuals.  They  differed  from  commissions  of  gaol 
delivery  principally  in  the  circumstance  that  the  commission 
of  Oyer  and  Terminer  was  "  ad  inquirendum,  audiendum,  et 
''  terminandum,"  whereas  that  of  goal  delivery  is  ^"ad  gaolam 
"  nostram  castri  nostri  de  C.  de  prisonibus  in  ek  existentibus 
"  hac  vice  deliberandam,"  the  interpretation  put  upon  which 
1  Fourth  Iii3t.  161,  167. 


SPECIAL   OYERS   AND   TEKMINEE3.  IO7 

■was  tliat  justices  of  Oyer  and  Terminer  could  proceed  only  Chap.  IV. 
upon  indictments  taken  before  themselves,  whereas  justices  of 
gaol  delivery  had  to  try  every  one  found  in  the  prison  which 
they  were  to  deliver.  On  the  other  hand,  a  prisoner  on  bail 
could  not  be  tried  before  a  justice  of  gaol  delivery,  because  he 
would  not  be  in  the  gaol,  whereas  if  he  appeared  before  justices 
of  Oyer  and  Terminer  he  might  be  both  indicted  and  tried. 

These  differences,  however,  seem  so  slight  and  technical 
that  I  am  inclined  to  think  that  the  commission  of  Oyer  and 
Terminer  must  originally  have  been  used  rather  for  special 
than  for  general  purposes,  and  that  it  was  granted  in  par- 
ticular cases  to  particular  persons  who  had  been  injured  by 
some  special  offence  by  an  offender  not  arrested  by  the  public 
guardians  of  the  peace.  It  would  be  natural  to  give  a 
general  commission  of  this  kind  to  justices  of  gaol  delivery, 
in  order  that  any  such  cases  not  brought  before  them  in  their 
other  capacity  of  justices  of  gaol  delivery  might  be  disposed 
of  at  the  same  time.  In  later  times  such  cases  were  usually 
dealt  with  by  the  Court  of  Star  Chamber. 

This  is  suggested  both  by  the  statute  13  Edw^  1,  c.  29,  and 
by  some  later  authorities.  The  words  of  the  statute  are  "a 
"  writ  of  trespass,  to  hear  and  determine,  from  henceforth 
"  shall  not  be  granted  before  any  justices,  except  justices  of 
"either  bench  and  justices  in  eyre,  unless  it  be  for  an  heinous 
"  trespass  where  it  is  necessary  to  provide  speedy  remedy,  and 
"  our  lord  the  king  of  his  special  grace  hath  thought  it  good  to 
"  be  granted."  This  of  course  implies  that  the  practice  had 
previously  been  different.  The  exception  made  in  the  statute 
left  in  existence  if  it  did  not  introduce  great  abuses.  This 
appears  from  a  petition  in  the  Parliament  Rolls  of  1315 
(thirty  years  after  the  statute.) 

The  petition  says :  ^  "  Great  evils  and  oppressions  against 
''  law  are  done  to  many  people  by  granting  commissions  of 
"  Oyer  and  Terminer  more  lightly  and  commonly  than  is 
"  proper  against  the  common  law.  For  when  a  great  lord  or 
"  powerful  man  wishes  to  injure  another,  he  falsely  accuses 
"  him  of  a  trespass"  (il  forge  trespas  vers  luy),  "or  maintains 
"  some  one  else  on  whom  he"  (his  enemy)  "has  trespassed, 
1  1  Rot.  Par,  280,  a. 


I08  ILLUSTRATIONS. 

Chap.  IV.  "  ^i^d  purchases  commissions  of  Oyer  and  Terminer  to  people 
— ^  "  favourable  to  himself  and  hostile  to  the  other  side,  ^  who 
"  will  be  ready  to  do  whatever  he  pleases,  and  will  fix  a  day 
"  of  which  the  other  side  will  either  receive  no  notice  from 
•'  the  sheriff  and  his  bailiffs  (who  are  procured  to  take  part 
"  in  the  fraud),  or  else  such  short  notice  that  he  cannot 
"  attend ;  and  so  he  is  grievously  amerced,  namely  £20,  or 
"  20  marcs,  or  £10,  at  the  will  of  the  plaintiff.  ^  And  then 
"  he  has  another  day  appointed  him  in  some  upland  incon- 
"  venient  village  in  which  his  adversary  is  so  powerful  that 
"  the  defendant  dares  not  go  there  for  danger  of  his  life,  and 
"  can  have  no  counsel  for  fear  of  the  same  power.  And  thus 
"  he  is  ^  fined  three  or  four  times  the  value  of  his  chattels, 
"  that  is  to  say,  a  common  man,  *£26  for  a  day,  or  100  marcs, 
"  or  £40,  more  or  less  according  as  the  plaintiff  is  urgent " 
(postive).  "  And  if  the  defendant  keeps  his  day,  he  will 
"  either  receive  bodily  harm,  or  he  will  have  to  agree  to  do 
"  more  than  is  in  his  power,  ®  or  a  jury  from  distant  parts  will 
"  be  procured  which  knows  nothing  of  the  trespass,  by 
"  which  the  defendant  will  be  convicted  of  the  trespass, 
"  though  he  may  not  be  guilty,  and  the  damages  taxed  at  the 
"  will  of  his  adversary,  that  is  to  say,  for  a  trespass  for  which 
"  «  20d.  would  be  enough  at  £200,  £400,  sometimes  1,000 
"  marcs.  And  if  the  party  convicted  is  caught "  (trapee),  "  he 
"  will  be  imprisoned,  and  remain  there  till  he  has  paid  every 
"  penny,  or  till  he  agrees  to  sell  his  land ;  or  till  his  friends 
"  pay,  if  he  is  ever  to  get  out.  And  if  he  cannot  be  taken 
"  he  will  be  put  in  exigent  and  exiled  for  ever"  (by  being 
outlawed). 

The  answer  to  this  petition  is :  "As  for  writs  of  Oyer  and 
"  Terminer  they  shall  for  the  future  be  granted  only  for 
"  enormous  trespasses  "  (pro  enormis  transgressionibus)  "  ac- 
"  cording  to  the  form  of  '  the  statute,  and  for  this  shall  be 
"  assigned  justices  sworn  discreet  and  not  suspected." 

^  "  Se  dorront  a  fairs  tut  ceo  qil  voet." 

*"  "  Et  avera  aultre  jour  en  ville  Duppeloiid  ne  mie  convenable." 
^  "  Mis  as  issues,"  fined  for  non-appearance  and  entered  by  tlic  Sheriff  on 
the  roll,  which  led  to  the  issue  of  a  writ  of  distringas.     See  2  Madox,  234. 
^  xxvi.  li. 


"  Ou  serra  procure  uno  jure  d'estrange  pays  qui  rien  soit  du  trespas." 
"xx  sontz."     Perhaps  shillings.  '  i.e.  13  Edw.  1,  c. 


2  9. 


ILLUSTRATIONS.  IO9 

This  petition  sets  in  a  striking  light  the  occasional  indivi-  chap.  IV. 
dual  character  of  the  administration  of  justice  even  at  so  late 
a  period  as  the  reign  of  Edward  II.,  and  the  great  oppressions 
incidental  in  those  days  to  trial  by  jury.  It  clearly  shows 
that  the  septennial  eyres  and  the  more  frequent  commissions 
of  gaol  delivery  did  not  provide  sufficiently  for  the  administra- 
tion'of  criminal  justice,  especially  as  regarded  offences  which 
were  regarded  (to  use  the  language  of  our  own  day)  rather  as 
torts  than  crimes. 

The  subject  is  so  curious  that  it  may  be  well  to  illustrate 
it  further  by  a  few  specimens  of  the  cases  in  which  after  the 
petition  referred  to  private  commissions  of  Oyer  and  Terminer 
were  issued. 

In  the  same  Parliament  in  which  the  petition  was  pre- 
sented ^  certain  persons  were  appointed  justices  of  Oyer  and 
Terminer,  as  to  "  all  complaints  which  any  one  wished  to 
"  make  of  prises,  ^carriages,  and  other  trespasses  done  by 
"  John  de  Segrave  and  his  servants  by  reason  of  his  custody 
"  of  the  forest  beyond  Trent,  and  the  castles  of  Nottingham 
"  and  Derby." 

A  similar  commission  ^  was  issued  at  the  same  time  to 
different  persons  with  reference  to  the  conduct  of  Gerard  de 
Salveyn,  as  escheator  beyond  Trent  and  sheriff  of  Yorkshire. 
In  1320  *  (14  Edw.  2),  Ealph  de  Draiton,  the  parson  of 
the  parish  of  Luffenham,  asked  for  a  commission  of  Oyer 
and  Terminer,  to  inquire  into  the  conduct  of  Eobert  de  Veer, 
Simon  de  Draiton,  and  John  de  Clifton,  who,  he  said,  by  the 
orders  of  Gilbert  de  Middleton,  Archdeacon  of  Northampton, 
imprisoned   him  till  he  resigned  his  living,  and  took  and 
carried  away  his  goods  and  chattels,  and  cut  out  the  tongue 
and  pulled  out  the  eyes  of  one  Agnes  de  Aldenby,  and  he 
said  that  a  commission  had  already  been  issued  on  the  sub- 
ject at  York.  The  answer  is  that  the  petitioner  must  produce 
the  former  commission  in  the  Chancery  where  he  will  be 
answered. 

^In  the  year  1321  or  1322  Eobert  Power  asks  for  a  com- 

11  Rot.  Par.  325,  a. 

2  Taking  supplies  and  compelling  people  to  carry. 

3  1  Rot.  Par.  325,  b.  ■>  lb.  37B,  a.  s  jj.  p.  410,  „. 


I  I O  SPECIAL   COMMISSIONS   OF   OYER   AND   TERMINER  DISUSED. 

Chap.  IV.  mission  of  Oyer  and  Terminer  against  various  persons  who, 
during  the  siege  of  Tickhill  Castle,  came  to  take  him  prisoner, 
and  hold  him  to  ransom,  and  destroyed  a  quantity  of  his  pro- 
perty.    The  answer  is  "  Adeat  legem  communem." 

Various  other  instances  are  given  in  the  Parliament  Rolls. 

The  abuse  complained  of  in  the  petition  above  quoted  still 
continued,  as  appears  from^  a  petition  presented  in  1328 
(2  Edw.  3)  complaining  of  the  irregular  and  illegal  conduct 
of  one  Robert  de  Scoresburgh,  who  was  a  Commissioner  of 
Oyer  and  Terminer  at  Scarborough,  on  the  writ  of  one  Ali- 
sandr'  de  Berwiz.  The  petition  was  granted,  and  the  result 
was  the  statute  of  2  Edw.  3,  c.  2,  which  enacts  "  that  the 
"  Oyers  and  Terminers  shall  not  be  granted  but  before  jus- 
"  tices  of  the  one  bench  or  the  other,  or  the  justices  errants, 
"  and  that  for  great  hurt  or  horrible  trespass,  and  of  the 
"  king's  special  grace,  after  the  form  of  the  statute  thereof 
"  ordained  in  time  of  the  said  grandfather,  and  none 
"  otherwise." 

The  result  of  this  statute  was  that  the  criminal  jurisdiction 
of  the  justices  of  assize  and  Nisi  Prius  was  put  on  its  present 
footing.  They  were  to  be  commissioners  of  gaol  delivery 
under  27  Edw.  1,  and  might  be  commissioners  of  Oyer  and 
Terminer  under  2  Edw.  3.  The  practice  now  is  to  issue  both 
commissions  to  the  judges  on  each  circuit,  though  occasion- 
ally commissions  of  gaol  delivery  only  are  issued. 

Besides  the  ordinary  commission  of  Oyer  and  Terminer  a 
commission  which,  according  to  Coke,  was  a  species  of  Oyer 
and  Terminer,  and  which  bore  the  odd  name  of  ^Trailbaston, 
was  issued  under  Edward  I.,  and  some  of  his  successors.  Its 
form  is  given  in  1  Bot.  Par,  218-9  (35  Edw.  1,  A.D.  1306). 
It  tells  us  nothing  except  that  certain  justices  were  to  "  en- 
"  tendre  les  busoignes  de  traillebaston "  on  five  circuits, 
including  38  counties.  Certain  articles  are  annexed  to  the 
commission,  which  look  as  if  they  were  intended  to  define 
the  duties  of  the  justices.  They  read  like  a  short  abridg- 
ment of  the  articles  of  the  eyre. 

1  3  Bot.  Par.  28,  li. 

^  Sir  Francis  Palgi-ave  says  that  the  word  refers  rather  to  the  crime  than  to 
the  court.  A  "  trailbaston  "  was  a  clubman,  one  who  carried  a  bludgeon — 
the  Indian  "latthiar" — from  "lathi"  a  club. 


TRAILBASTON.  .  Ill 

"  Et  qe  vostre  poyne  aide  et  consail  a  tot'  vostre  poair  Chap,  iv, 
'  dorrez  et  mettrez  as  droitures  le  Roi  et  de  la  Corone  garder 
'  meintenir  sauver  et  repeler  par  la  ou  vous  purroz  sanz  tort 
'  faire.  Et  la  ou  vous  saverez  les  choses  de  la  Corone  et  le 
■  droitz  '  le  Roy  concellez,  ou  a  tort  alienez,  ou  soustrez,  qe 
'  '  vous  le  frez  saver  au  Roi.  Et  que  la  Corone  arrestrez  a 
'  '  votre  poair  et  en  loais  manere.'  " 

The  Commission  says  nothing  of  criminal  jurisdiction,  but 
Coke  asserts  that  the  Commissioners  possessed  it,  and  instances 
might  be  cited  from  the  Parliament  Rolls  which  support 
this.  In  1347  ^(25  Edw,  3),  the  Commons  petition  that 
"  comunes  Trailbastoneries  ne  courgent  come  autre  foitz  fut 
"  assentuz  en  Parlement ;  car  eles  furent  tout  a  destruction 
"  et  anientissement  du  Poeple  et  a  moult  petit  ou  nul  amende- 
"  ment  de  la  ley  ou  de  la  Pees  ou  punissement  des  felons 
"  ou  tresspassours." 

The  commissions  of  Trailbaston  are  mentioned  in  most  of 
the  passages  already  cited  as  to  the  remission  of  the  eyres  for 
a  longer  or  shorter  time,  and  the  two  were  probably  more  or 
less  closely  connected.  Whatever  their  nature  may  have 
been  they  have  long  since  become  obsolete,  and  inquiries  into 
their  nature  have  only  an  antiquarian  interest.  We  have 
thus  arrived  at  the  establishment  of  the  second  of  the  ordi- 
nary superior  criminal  courts,  the  courts  of  the  Justices  of 
Assize.  They  can  hardly  be  said  to  have  had  any  later  his- 
tory. Some  small  variations  in  the  number  of  the  circuits, 
and  as  to  the  places  in  which  they  were  to  be  held,  have 
been  made  especially  within  the  last  few  years,  but  the 
circuits  have  altered  but  little,  and  the  constitution  of 
the  Courts  has  hardly  altered  at  all  since  the  reign  of 
Edward  III. 


THE  COURTS   OF  QUARTER  SESSIONS. 

I  now  come  to  the  history  of  the  Courts  of  Quarter 
Sessions  for  counties.  In  order  to  explain  their  origin  and 
constitution  it  is  necessary  to  refer  shortly  to  the  origin  of 

»  2  Rot.  Par.  174. 


I  I  2  CONSERVATORS  OF  THE  PEACE. 

Chap.  IV.  ihe  office  of  Justices  of  the  Peace.     ^  Keeping  the  peace 

was  one  of  the  chief  prerogatives  of  the  Crown,  and  it  was 

exercised  both  by  some  of  the  great  officers  of  the  Crown 
throughout  England,  and  by  sheriffs,. coroners,  and  constables 
in  their  various  counties  and  smaller  districts.  ^The  judges 
of  the  Court  of  King's  Bench  were,  and  the  judges  of  the 
High  Court  of  Justice  are,  conservators  of  the  peace  all 
over  England,  and  though  a  judge  in  the  present  day  seldom 
if  ever  acts  as  a  justice  of  the  peace,  it  was  customary  for 
them  to  do  so  for  centuries.  When  the  Supreme  Courts  were 
first  established  in  India,  the  judges  were  expressly  made 
justices  of  the  peace,  and  they  used  to  sit  as  such  regularly. 
Besides  those  who  were  conservators  of  the  peace  by  virtue  of 
their  offices,  there  were  evidently  others  who  were  elected  f  )r 
particular  districts  as  coroners  now  are.  At  the  beginning  of 
the  reign  of  Edward  III.,  and  no  doubt  in  order  to  enable  him, 
or  rather  his  mother,  Queen  Isabel,  and  her  advisers  to  keep 
order  and  support  their  authority,  it  was  enacted  in  1327 
(1  Edw.  3,  c.  16)  that  "in  every  county  good  men  and 
"  lawful  which  be  no  maintainers  of  evil  or  barretors  in  the 
"  country  should  be  assigned  to  keep  the  peace."  This  put 
an  end  to  the  election  of  conservators,  and  was  the  beginning 
of  the  legislation  relating  to  the  officers  who  afterwards 
became  justices  of  the  peace.  At  first  their  authority  was 
simply  executive,  being  limited  probably  to  suppressing  dis- 
turbances and  apprehending  offenders,  so  that  they  were  little 
more  than  constables  on  a  large  scale.  Three  years  afterwards, 
in  1330,  it  was  enacted  (4  Edw.  3,  c.  2)  that  there  should  be 
three  gaol  deliveries  in  every  year,  and  that  at  the  time  of  the 
assignment  of  the  keeper  of  the  peace  "  mention  shall  be  made 
'■■  that  such  as  shall  be  indicted  or  taken  by  the  said  keepers 
"  of  the  peace  shall  not  be  let  to  bail  or  mainprise  by  the 
"  sheriffs,"   and  that  the  justices  of    gaol   delivery  should 

^  Lambard,  Eirenarcha,  pp.  3-22.  Lambard  is  tte  foundation  of  Blackstone 
(Book  i.  u.  9)  and  other  writers.  See  also  Dig.  Crim.  Proc.  chap.  v.  arts. 
28—36. 

^  Lambard,  fo.  13.  As  to  judges  acting  as  justices,  see  Campbell's  Chief 
Justices,  iii.  11  (life  of  Holt) ;  and  see  Spencer  Cowper's  case,  in  which  Holt 
took  depositions,  13  State  Trials,  1142.  As  to  India,  see  13  George  3, 
c.  63,  s.  38.  In  Sir  William  Jones's  Life,  mention  is  made  of  his  holding 
evening  sittings  as  justice  of  the  peace  for  Calcutta. 


JUSTICES  OF  THE  PEACE.  II3 

deliver  the  gaols  of  the  persons  indicted  or  taken  by  the  chap.  IV. 
keepers  of  the  peace.    The  powers  of  the  keepers  of  the  peace 
at  this  time  therefore  extended  to  receiving  indictments. 

In  1344  (18  Edw.  3,  st.  2,  ch.  2)  it  was  enacted  that 
"  two  or  three  of  the  best  of  reputation  in  the  counties  shall 
"  be  assigned  keepers  of  the  peace  by  the  King's  Commis- 
"  sion,  and  at  what  time  need  shall  be  the  same  with  others 
"  wise  and  learned  in  the  law  shall  be  assigned  by  the 
"  King's  Commission  to  hear  and  determine  felonies  and 
"  trespasses  done  against  the  peace  in  the  same  counties, 
"  and  to  inflict  punishment  reasonably."  This  was  the  first 
act  by  which  the  Conservators  of  the  Peace  obtained  judicial 
power.  Apparently  some  of  them  were  to  be  associated  with 
the  Commissioners  of  Oyer  and  Terminer  and  Gaol  Delivery,  ■ 
but  they  were  not  themselves  to  form  a  complete  court. 

In  ^  1350  the  Statute  of  Labourers  required  the  justices  to 
hold  sessions  four  times  a  year  to  enforce  that  statute. 

After  a  further  interval  of  ten  years,  namely,  in  1360,  a 
statute  was  passed  (34  Edw.  3,  c.  1)  which  not  only  author- 
ised the  keepers  of  the  peace  to  arrest  offenders,  but  gave 
them  authority  to  "  hear  and  determine  at  the  King's  suit 
"  all  manner  of  felonies  and  trespasses  done  in  the  same 
"  county."  Lambard  conjectures  that  it  was  upon  the  passing 
of  this  statute  that  the  Conservators  of  the  Peace  first  ac- 
quired the  higher  title  of  Justices.  He  also  says  that  some 
words  in  the  beginning  of  the  statute,  "  In  every  county  in 
"  England  shall  be  assigned,"  &c.,  had  the  effect  of  providing  a 
separate  Commission  for  every  county,  a  Commission  for  several 
counties  having,  at  all  events  in  earlier  times,  been  given  to 
particular  persons.  This  statute  is  still  the  foundation  of  the 
jurisdiction  of  the  Courts  of  Quarter  Sessions  for  counties. 

In  1388  a  further  statute  was  passed  fixing  the  number  of 
justices  at  six  for  every  Commission  of  the  Peace,  besides 
the  Justices  of  Assize.  They  were  to  keep  their  sessions 
four  times  a  year  for  three  days  if  need  be.  The  statute 
adds  that  if  a  judge  of  either  bench  or  a  serjeant-at-law  is 
in  the  Commission,  he  is  not  to  be  required  to  sit  as  the 
other  Commissioners,  the  which  be  continually  dwelling  in 
1  25  Edw.  3,  st.',l,  c.  7  ;_and_see_2iSo<.  Far.  234. 
VOL.   I.  I 


114  QUAETEE  SESSIONS   FOR  COUNTIES. 

Chap.  IV.  the  country,  but  that  "  they  shall  do  it  when  they  may  best 
"  attend."  Several  later  statutes  are  to  much  the  same  effect, 
though  they  have  been  interpreted  as  removing  the  restric- 
tion as  to  the  number  of  justices.  They  are  13  Rich.  2,  st.  1, 
c.  7,  2  Hen.  5,  st.  2,  c.  1  and  c.  4,  which  last  statute  again 
prescribes  the  dates  at  which  the  sessions  are  to  be  held. 

Many  statutes  have  been  passed  relating  to  various  matters 
connected  with  justices  of  the  peace,  but  the  constitution  of 
the  'Court  of  Quarter  Sessions  has  never  been  materially 
altered  from  its  first  establishment  to  the  present  day.  The 
time  at  which  it  is  to  meet  is  now  regulated  by  11  Geo.  4, 
and  1  Will.  4,  c.  70,  s.  35. 

The  jurisdiction  of  the  Court  depends  partly  on  statute  and 
partly  on  the  Commission  issued  under  the  earUer  statutes, 
^  the  form  of  which  was  first  settled  in  Michaelmas  Term, 
1590,  by  Lord  Chief  Justice  Wray  and  the  other  judges,  and 
which  has  been  in  use  ever  since,  though  some  of  its  terms 
are  sufficiently  antiquated.  ^It  provides  that  the  justices 
are  to  "  hear  and  determine  all  felonies,  poisonings,  enchant- 
"  ments,  sorceries,  arts  magic,  trespasses,  forestallings,  re- 
"  gratings,  engrossing,  and  extortions,  and  all  other  crimes 
"  and  offences  of  which  such  justices  may  or  ought  lawfully 
"  to  inquire,"  subject  to  this  caution,  "  that  if  a  case  of  diffi- 
"  culty  shall  arise  they  shall  not  proceed  to  give  judgment 
"  except  in  the  presence  of  some  justice  of  one  of  the  benches 
"  or  of  assize." 

The  jurisdiction  of  the  Court  of  Quarter  Sessions  thus  ex- 
tended nominally  to  all  felonies  and  indeed  to  all  crimes  except 
treason,  subject  only  to  the  condition  that  in  cases  of  difficulty 
a  judge  of  the  superior  courts  ought  to  be  present. 
•  All  through  the  sixteenth  century  the  Quarter  Sessions  did 
in  fact  sentence  to  death  large  numbers  of  people,  who  were 
executed  upon  their  sentence.  This  appears  from  Mr.  Hamil- 
ton's History  of  the  Quarter  Sessions,  compiled  from  records  at 
Exeter  Castle ;  but  they  seem  to  have  confined  themselves 
principally  to  cases  of  theft  and  the  like.  As  time  went 
on  their  jurisdiction  was  in  practice  greatly  narrowed,  and 

^  Big.  Grim.  Proc.  p.  23,  oh.  vi. 

^  Lambard,  p.  43  ;  2  Stephen's  Com.  646.  s  chitty,  138. 


COMMISSIONS   OF   THE   PEACE.  115 

Chitty,  writing  in  1826,  says,  "  It  is  now  the  common  practice  Chap.  IV. 
"  to  try  only  petty  larcenies  and  misdemeanours  in  this 
"  court."  It  was  not  thought  proper  that  they  should  deal 
with  capital  offences  even  when  they  were  entitled  to  the 
benefit  of  clergy.  It  was  a  singular  indirect  effect  of  the 
old  law  as  to  capital  punishment  that  it  thus  came  to  narrow 
and  cripple  the  powers  of  the  Court  of  Quarter  Sessions. 
Their  jurisdiction  as  regards  crimes  is  now  determined  by 
^  5  &  6  Vic.  c.  38,  passed  in  1842,  soon  after  the  law  relating 
to  the  punishment  of  death  had  been  reduced  nearly,  though 
not  quite,  to  its  present  condition.  This  Act  provides  nega- 
tively that  the  Court  shall  not  try  prisoners  accused  of 
treason,  murder,  or  any  capital  felony,  or  for  any  felony  for 
which  on  a  first  conviction  an  offender  may  be  sentenced  to 
penal  servitude  for  life,  nor  for  any  one  of  eighteen  other 
specified  offences,  which  include  all  the  offences  in  relation 
to  which  legal  or  constitutional  questions  of  importance  are 
likely  to  arise.  All  offences  except  these  they  can  try 
under  the  statute  above  referred  to,  and  under  the  terms  of 
their  Commission. 

The  only  point  which  remains  to  be  noticed  in  connection 
with  the  Quarter  Sessions  for  counties  is  the  local  limits  of 
their  jurisdiction.  This  depends  upon  the  Commissions  by 
which  the  justices  are  appointed,  and  which  assign  the  limits 
within  which  they  are  to  act.  ^  There  are  in  England  and 
Wales  the  following  Commissions : — 

One  for  each  county  in  England  and  Wales, 

except  York  and  Lincqln 50 

One  for  each  Eiding  of  the  county  of  York  .  3 
One  for  each  of  the  three  parts  (Lindsay,  Hol- 
land, and  Kesteven)  of  the  county  of  Lincoln  3 
One  for  each  of  the  following  Liberties : — 
Cawood,  Cinque  Ports,  Ely,  Haverfordwest, 
Peterborough,  Eipon,  St.  Albans,  Tower  of 
London,  Westminster 9 

65" 

\ 
^  There  have  1)6611  one  or  two  small  variations  by  subsequent  legislation. 
^  My  friend,  Mr.  Godfrey  Lushington,  was  so  good  as  to  obtain  from  the 
Home  OflBice  this  information  for  me. 

I  2 


Il6  BOROUGH  QUARTER  SESSIONS. 

Chap.  IV.  There  are  also  separate  Commissions  for  each  of  the 
1  eighteen  counties  of  cities  and  towns,  and  for  many 
municipal  boroughs. 


2  BOROUGH  QUARTER  SESSIONS. 

I  now  pass  to  the  Borough  Quarter  Sessions,  the  history  of 
which  is  more  complicated  than  that  of  the  Quarter  Sessions 
for  counties. 

The    history   of  the   growth   of    towns  in   England   has 
been   considered   from   a   constitutional  point   of  view  by 
^  many  writers    of   high    authority.     It  is   enough    for  my 
present  purpose  to  observe  that  from  the  time  when  Henry  I. 
granted    its   first   existing   charter  to  the    City  of   London 
down  to  our  own  days,  charters  of  incorporation  have  been 
granted  to   a  great  number   of   towns   and  'cities.     These 
charters,  from  the  earliest  times,  contained  grants  of  courts 
of  various  degrees  of  importance.     The  mayor  and  aldermen 
were,  in  some  cases,  made  magistrates  ex  officio,  and  autho- 
rised to  hold  Courts  of  Quarter  Sessions;  and  these  grants 
were  accompanied  or  not,  as  the  case  might  be,  by  a  clause 
called  the  "  non  intromittant  clause,"  which  ousted  the  juris- 
diction of  the  county  magistrates.     In  some  cases  towns  were 
made  counties  of  themselves.     Such  towns  usually  appointed 
their  own  sheriffs.      Occasionally  particular  oflS.cers  were  to 
be  put  upon  all  commissions  of  Gaol  Delivery  and  Oyer  and 
Terminer  issued  for  such  counties  of  towns.      For  instance 
in  London,  by  a  series  of  charters  from  the  days  of  Henry  I. 
downwards,  the  Lord  Mayor,  the  Aldermen,  and  the  Recorder, 
were  to  be  put  into  all  commissions  of  Gaol  Delivery  for  the 
gaol  of  Newgate,  and  all  commissions  of  Oyer  and  Terminer 
for  the  City  of  London.  In  some  cases  there  was  no  limitation 
at  all  upon  the  extent  of  the  town  jurisdiction.     They  might 

1  Bristol,  Canterbury,  Chester,  Coventi-y,  Exeter,  Gloucester,  Lincolo, 
Lichfield,  Norwich,  Worcester,  and  York,  and  the  towps  of  Caermarthen, 
Haverfordwest,  Hull,  Newcastle-ou-Tyno,  Nottingham,  Poole,  and  Southamp- 
ton (5  &  6  Will.  4,  c.  1%  a.  61,  and  see  Schedule  A). 

2  Dig.  Grim.  Froa.  arts.  31,  38,  41. 

?  Halliim,  Middle  Ages;  Cons^  Hist,;  Brady,  History  of  boroughs; 
Stubhs,  Const.  Hist. 


MUNICIPAL   CORPORATIONS   ACT.  Il7 

try  all  crimes  and  inflict  any  punishment  up  to  death.  In  Chap.  IV 
other  cases  they  were  confined  within  narrower  limits.  I  am 
not  aware  of  any  case  in  which  the  grant  ousted  the  con- 
current jurisdiction  of  justices  of  Gaol  Delivery  or  com- 
missioners of  Oyer  and  Terminer  appointed  for  the  county  in 
which  a  corporate  town  n6t  being  a  county  of  itself  was 
situated,  or  in  which  it  prevented  the  king  from  issuing  such 
a  Commission  to  his  own  justices  to  be  executed  within  the 
limits  of  a  county  of  a  city  or  town  corporate.  In  nearly 
every  instance  in  which  any  such  charter  was  granted,  the 
corporation  were  authorised  to  appoint  a  judicial  officer, 
generally  a  recorder,  who  held  his  office  during  good  beha- 
viour, and  acted  as  judge  in  the  criminal  court,  and  usually 
in  the  civil  court  also,  if  there  was  one. 

The  counties  of  cities  and  towns,  the  boroughs,  and  the 
towns  corporate  continued  to  exercise  the  jurisdiction  thus 
conferred  upon  them  from  the  date  of  their  respective 
charters  and  according  to  their  tenor  down  to  the  year  1834. 
In  that  year  a  Commission  was  issued  to  inquire  into  their 
various  constitutions.  It  made  several  reports,  the  first  of 
which  was  printed  in  1835.  These  reports  give  in  minute 
detail  an  account  of  every  charter  known  to  have  been 
granted  to  every  town  in  England  and  Wales.  They  formed 
the  basis  upon  which  was  founded  the  ^  Municipal  Corporations 
Act  (5  &  6  Will.  4,  c.  76).  The  effect  of  this  measure  would 
hardly  be  apparent  to  any  one  who  read  it  without  reference 
to  other  matters,  particularly  to  the  reports  of  the  Com- 
missioners, but  it  was  as  follows : — 

The  Commissioners  "  found  satisfactory  reasons  for  believ- 
"ing  that  there  were  in  England  and  Wales"  in  all  246 
corporate  towns.  Of  these  178  are  mentioned  in  two  schedules 
to  the  Act,  and  to  them  only  the  Act  applies.  The  178  do 
not  include  either  the  City  of  London  on  the  one  hand,  or 
on  the  other  88  small  places  which  had  been  incorporated  at 
various  times,  but  had  declined  in  importance.  Other  towns 
of  very  great  importance  are  also  absent  from  the  list  {e.g., 

'  On  January,!,  1883,  the  Municipal  Corporations  Act  of  1882  (45  &  46  Vic. 
c.  50)  is  to  come  into  force.  It  repeals,  re-enacts,  and  consolidates  all  the 
older  Acts. 


ii8 


COURTS   OF  TOWNS   CLASSIFIED. 


Chap.  IV.  Manchester  and  Birmingham),  because  at  the  time  when  the 
Act  passed  they  were  not  incorporated.  Manchester  and 
Birmingham,  and  a  considerable  number  of  others,  have  since 
been  incorporated,  either  under  ^  7  Will.  4,  and  1  Vic.  c.  78, 
s.  49,  or  under  40  &  41  Vic.  c.  69,  by  which  the  enactment 
previously  mentioned  is  repealed  and  re-enacted  in  a  more 
elaborate  form,  and  to  all  boroughs  so  incorporated  the  pro- 
visions of  the  Municipal  Corporations  Act  are,  I  believe, 
extended. 

The  English  towns  may  thus  be  classified  as  follows  : — 

1.  London. 

2.  Eighty-eight  small  corporate  towns  not  affected  by  the 
Municipal  Corporations  Act. 

3.  The  178  towns  to  which  the  Municipal  Corporations  Act 
applies. 

4.  The  towns  which  have  been  incorporated  since  the 
Municipal  Corporations  Act,  but  to  which  its  provisions  have 
been  extended. 

Upon  each  of  these  classes  separate  observations  arise  : — 
1.  London  is,  by  charter,  a  county  of  itself;  and  by 
various  charters,  the  Lord  Mayor,  the  Eecorder,  and  the 
Aldermen,  were  entitled  to  be  put  upon  all  commissions 
to  deliver  the  gaol  of  Newgate,  and  all  commissions  of 
Oyer  and  Terminer  for  the  City  of  London.  By  what 
precise  authority  they  tried  Middlesex  prisoners  also,  I  am 
unable  to  say,  and  it  is  now  of  no  importance,  but,  in  fact, 
they  did  try  them.  Under  their  charters  they  hold  Quarter 
Sessions  both  for  the  City  of  London  and  for  the  Borough  of 
Southwark. 

2  The  provisions  of  the  charters  by  which  they  sat  as  Com- 
missioners of  Oyer  and  Terminer  and  Gaol  Delivery,  are  now 
merged  in  the  Central  Criminal  Court,  which  was  established 
by  4  &  5  Win.  4,  c.  36.  This  Court  consists  of  the  Lord 
Mayor  for  the  time  being,  the  Lord  Chancellor,  all  the  Judges 
of  the  High  Court,  ^the  Judge  of  the  Provincial  Courts  of 

1  In  the  preamble  to  45  &  46  Vio.  c.  50,  it  is  stated  tliat  tlie  act  of  1835 
applies  to  all  the  bodies  constituted  after  it  passed.  Sec.  210  of  the  act  of 
1882  is  now  substituted  for  40  &  41  Vic.  c.  69. 

"^  Dig.  Orim.  Proe.  art.  25. 

2  I  suppose  this  is  the  effect  of  the  Judicature  Act  of  1873.     Before  that 


COURTS   OF  TOWNS   CLASSIFIED.  I  1 9 

Canterbury  and  York,  the  Aldermen  of  the  City  of  London,  chap.  IV. 

the  Recorder,  the  Common  Serjeant  and  the  Judge  of  the       

Sheriffs  Court,  and  of  every  one  who  has  held  the  ofSce  of 
Lord  Chancellor,  Lord  Keeper,  or  a  Judge  of  the  High 
Court,  and  of  such  other  persons  as  Her  Majesty  appoints. 
In  practice,  the  judicial  duties  of  the  Court  are  discharged  by 
the  Judges  of  the  Queen's  Bench  Division  and  the  three 
judicial  officers  of  the  City. 

A  Commission  of  Oyer  and  Terminer  as  to  all  offences 
committed  within  the  district  of  the  Central  Criminal  Court 
and  a  Commission  to  deliver  the  gaol  of  Newgate  issues  froni 
time  to  time  to  the  persons  above  mentioned.  The  district 
over  which  the  court  has  jurisdiction,  includes  the-  City  of 
London,  the  County  of  Middlesex,  and  certain  parts  of  the 
Counties  of  Kent,  Essex,  and  Surrey.  The  Court  has  also 
Admiralty  jurisdiction. 

2.  The  small  towns  which  were  not  affected  by  the  Muni- 
cipal Corporations  Act  are  numerous,  but  in  a  large  number 
of  cases  their  jurisdiction  has  become  obsolete.  In  some 
cases  it  extended,  and  still  extends,  theoretically,  to  the 
infliction  of  capital  punishment.  ^Several  small  villages  in 
Kent  have  charters  by  which  they  might,  apparently,  still 
try  people  for  their  lives,  but  as  the  county  justices  and 
the  assizes  had  always  concurrent  jurisdiction,  the  power  has 
been  forgotten  and  has  become,  practically,  obsolete.  A  con- 
siderable number  of  these  small  towns  have  either  no  criminal 
jurisdiction  at  all,  or  a  very  small  one,  and  many  have  no 
recorders. 

3.  The  178  towns  which  are  mentioned  in  the  two  sche- 
dules to  the  Municipal  Corporations  Act  are  divided  into  two 

Act  passed  the  judges  of  the  Courts  of  Equity  were  not  judges  of  the  Central 
Criminal  Court.  The  Judge  of  the  Court  of  Admira,lty  and  the  Dean  of 
the  Arches  were  members  of  it.  Under  37  &  38  Vic.  o.  _  85,  s.  85,  the 
judge  appointed  nnder  the  Public  Worship  Regulation  Act  is  ex  officio  Dean 
of  "hJiG  ArciiGS 

1  This  seems  to  be  the  effect  of  s.  107,  taken  in  connection  with  the  inter- 
pretation of  the  word  "  Borough  "  in  s.  142.  By  s.  107  it  is  enacted  that  after 
May  1,  1836,  all  jurisdiction  to  try  treasons,  capital  felonies,  and  all  other 
criminal  jurisdictions  whatever,  granted  or  confirmed  by  any  law,  &c.,  or 
charter,  &c.,  to  any  mayor,  &c.,  "in  any  borough"  shall  cease.  By  s.  142 
"  'borough'  shall 'be  construed  to  mean  city,  borough,  port,  cinque  port,  or 
"  town  corporate,  named  in  one  of  the  schedules  (A  and  B),"  i.e.  the  178 
places  referred  to. 


I20  COURTS   OF  TOWNS   CLASSIFIED. 

Chap.  IV.  classes.  The  first  class  (Schedule  A)  contains  128  towns,  as 
to  which  it  is  enacted,  that  they  are  to  have  separate  com- 
missions of  the  peace.  The  second  class  (Schedule  B)  are  to 
have  separate  commissions  of  the  peace  if  the  Crown  is 
pleased,  upon  the  petition  of  the  Council  thereof,  to  grant 
them. 

^  Every  borough,  whether  in  Schedule  A  or  Schedule  B 
which  wished  to  have  a  separate  Court  of  Quarter  Sessions 
was  to  petition  for  one,  stating  what  salary  they  were  willing 
to  pay  their  recorder,  and  the  Crown  was  empowered  to  grant 
that  a  separate  Court  of  Quarter  Sessions  should  be  thence- 
forward held  in  and  for  the  borough.  The  right  to  appoint 
the  recorder  which  had  previously  been  vested  in  most  cases 
in  the  Corporation  was  by  this  Act  transferred  to  the 
Crown.  2  The  recorder  is  to  hold  his  court  four  times  a 
year  or  oftener,  if  he  thinks  fit,  or  if  the  Crown  thinks  fit  to 
direct  him  to  do  so  ;  ^  and  he  is  the  sole  judge  of  the  court. 
In  all  cases  in  which  a  separate  Court  of  Quarter  Sessions  is 
granted  to  a  borough  in  either  schedule,  the  jurisdiction  of 
the  county  justices  is  excluded  if  the  borough  was  exempt 
from  their  jurisdiction  before  the  passing  of  the  act.  In 
scheduled  boroughs  in  which  a  separate  Court  of  Quarter 
Sessions  was  not  granted  before  May  1,  1836,  the  county 
justices  are  to  have  concurrent  jurisdiction,  although  there 
may  be  a  separate  commission  of  the  peace. 

It  would  not  be  worth  while  to  ascertain  the  precise 
effect  of  these  curiously  qualified  provisions,  but  by  com- 
paring the  list  of  recorders  given  in  the  Law  List  with  the 
list  of  128  boroughs  in  Schedule  A,  it  appears  that  eighty- 
five  have  recorders,  and  that  forty-three  have  not.  Of  the 
fifty  towns  in  Schedule  B,  forty-one  have  not,  and  nine  have, 
recorders. 

By  s.  107,  all  the  towns  in  both  schedules  which  have 
not  a  separate  Court  of  Quarter  Sessions  have  lost  ■  all 
their    criminal    jurisdiction,    and    even    if    they    have    a 

'  s.  103.  As  to  borough  courts  and  recorders,  see  45  &  46  Vic.  c.  50, 
part  viii.  ss.  154-169. 

■''  s.  105. 

'  s.  in.  Even  in  cases  where  he  used  to  be  assessor  only  See  7  Will.  4, 
and  1  Vic.  c.  78,  s.  34. 


COURTS   OF  QUARTER  SESSIONS.  121 

separate   commission  of   the  peace    (which   all  the  towns  Chap.  IV. 
in  Schedule  A  have),  the   county  justices  have  concurrent 
jurisdiction. 

No  town  in  either  schedule  can  have  a  separate.  Court  of 
Quarter  Sessions  unless  it  has  both  a  separate  commission  of 
the  peace  and  a  recorder,  but  the  converse  is  not  true.  Many 
towns  have  recorders  which  have  no  separate  Court  of  Quarter 
Sessions,  and  I  think  that  some  towns  have  both  a  recorder 
and  a  separate  commission  of  the  peace,  and  yet  no  separate 
Court  of  Quarter  Sessions.  In  such  cases  the  recorder's 
office  is  merely  honorary. 

Upon  the  whole,  I  think  it  will  be  found  that 
about  85  of  the  178  boroughs  specified  in  the  Muni- 
cipal Corporations  Act  have  separate  Courts  of  Quarter 
Sessions. 

4.  In  the  coitrse  of  the  forty-three  years  which  have 
passed  since  1836,  a  considerable  number  of  new  charters 
have  been  granted ;  some  to  towns  of  the  first  importance, 
as  for  instance  to  Manchester  and  Birmingham.  In  some 
of  these  cases  a  separate  Court  of  Quarter  Sessions  and  a 
separate  Commission  of  the  Peace  has  been  granted,  and  in 
others  not. 

The  intricacy  of  all  this,  and  the  difficulty  of  spelling  it 
out  from  the  acts  of  parliament  and  other  authorities  re- 
lating to  the  matter,  is  a  good  instance  of  some  of  the  causes 
which  make  our  law  obscure  and  repulsive.  ^  No  one  could 
understand  the  true  nature  and  effect  of  the  Municipal  Cor- 
porations Act  without  acquiring  a  great  deal  of  knowledge  as 
to  which  the  act  itself  does  not  even  contribute  a  suggestion ; 
and  even  when  that  knowledge  is  acquired,  the  application  of 
it  to  the  wandering  arrangement  and  clumsy  phraseology  of 
the  act  is  a  matter  of  much  difficulty. 

The  jurisdiction  of  the  Borough  Quarter  Sessions  over 
crimes  is  the  same  as  that  of  the  County  Quarter 
Sessions. 

^  Since  this  was  in  type,  all  the  acts  on  the  subject  have  been  consolidated 
by  45  &  46  Vic.  c.  50,  which  is  much  better  drawn  and  arranged,  but  a  know- 
ledge of  the  history  of  the  subject  is  still  necessary  to  understand  it. 


122  SUMMARY  CONVICTIONS. 


COURTS  OF  A  SUMMARY  JURISDICTION. 

Chap.  IV.  The  last  set  of  criminal  courts  still  existing  are  the  courts 
of  a  summary  jurisdiction.  Their  history  is  short,  but  it  is 
highly  characteristic. 

From  the  first  institution  of  justices  of  the  peace  to  our 
own  times  a  number  of  statutes  have  been  passed  authorising 
sometimes  one  justice,  and  in  other  cases  two,  to  inflict  in 
a  summary  way  penalties  of  different  kinds  upon  a  great 
variety  of  offenders.  These  penalties  have  in  most  cases  con- 
sisted in  the  infliction  of  fines  of  a  greater  or  less  amount, 
and  sometimes  in  imprisonment,  and  occasionally  in  setting 
the  offender  in  the  stocks.  Most  of  the  offences  created  by 
legislation  of  this  sort  have  consisted  in  the  violation  of  rules 
laid  down  for  some  administrative  purpose,  and  so  belpng 
rather  to  administrative  law  than  to  criminal  law  as  usually 
understood.  The  Statute  of  Labourers  was  the  first  act  of  the 
sort,  and  the  Poor  Laws  supply  another  illustration.  Some- 
times, however,  the  offences  subjected  to  summary  punish- 
ment were  offences  properly  so  called — acts  punished  not  in 
order  to  sanction  any  part  of  the  executive  government,  but 
because  they  were  regarded  as  mischievous  in  themselves. 
Nearly  the  oldest  act  of  this  sort  still  in  force  (though,  I 
beheve,  it  is  practically  obsolete)  is  19  Geo.  2,  c.  21  (1745-6), 
"An  Act  more  effectually  to  prevent  profane  cursing  and 
swearing."  This  act  empowers  and  requires  justices  of  the 
peace  to  fine  profane  swearers.  If  the  offender  does  not 
pay,  he  may  be  sent  to  the  house  of  correction  with  hard 
labour  for  ten  days,  or,  if  he  is  a  common  soldier  or  sailor, 
set  in  the  stocks. 

The  next  act,  19  Geo.  2,  c.  27,  supplies  another  illustration. 
It  enables  justices  to  inflict  a  penalty  of  £5  to  50s.  on  masters 
of  ships  who  throw  out  ballast  in  such  a  way  as  to  injure  ports 
or  navigable  rivers.  Many  acts  (which,  I  believe,  have  never 
been  expressly  repealed)  punish  workmen  in  various  trades 
who  dishonestly  appropriate  to  themselves  ("purloin"  is  a 
word  frequently  used)  goods  entrusted  to  them  in  their  trade 
in  a  manner  not  amounting  to  theft  at  common  law. 


OKIGIN   OF  PRESENT  SYSTEM.  1 23 

Speaking  very  generally,  it  may,  I  think,  be  said  that  the  Chap.  IV. 
general  character  of  statutes  giving  summary  jurisdiction  to  ' 
magistrates  was  for  a  great  length  of  time  to  enable  them  to 
deal  with  matters  of  small  importance,  more  particularly  with 
offences  in  the  nature  of  trifling  nuisances  or  disturbances  of 
good  order,  jurisdiction  in  cases  of  serious  crime  being  reserved 
for  juries.  Besides  this,  it  was  the  common  characteristic  of 
these  acts  to  leave  the  subject  of  procedure  unprovided  for, 
or  provided  for  only  in  a  very  general  and  insufficient  manner. 
For  instance,  the  19  Geo.  2,  c.  21,  says  nothing  of  the  right 
of  the  defendant  to  defend  himself,  or  even  to  have  the 
evidence  given  in  his  hearing.  Nor  does  it  contain  any 
provision  as  to  the  way  in  which  the  defendant  is  to  be 
"  caused  to  appear "  before  the  magistrate,  nor  as  to  the 
attendance  of  witnesses,  or  a  variety  of  other  matters  essential 
to  the  regular  administration  of  justice.  It  was  probably 
considered  best  to  leave  all  such  questions  to  the  discretion  of 
the  justice.  This  vagueness  led  in  course,  of  time  to  a 
variety  of  questions  both  as  to  the  jurisdiction  and  as  to  the 
procedure  of  the  magistrates.  These  were  raised  upon  writs  of 
certiorari,  which  issued  from  the  Court  of  King's  Bench,  to 
call  up  and  quash  convictions,  and  many  convictions  were 
quashed  accordingly.  It  became  usual  in  consequence  to  put 
into  acts  giving  summary  jurisdiction  to  magistrates  ^  a  clause 
taking  away  the  writ  of  certiorari,  but  new  questions  arose  as 
to  the  effect  of  such  enactments  and  the  cases  to  which  they 
applied.  A  variety  of  acts  which  need  not  be  specifically 
mentioned  were  passed  which  affected  the  procedure  in  such 
cases,  but  the  subject  was  at  last  comprehensively  dealt  with 
by  11  &  12  Vic.  c.  43,  which,  though  open  to  various  objec- 
tions, may  by  a  combination  of  study  and  practice  be  under- 
stood, and  by  this  act,  and  others  amending  it,  the  procedure 
before  magistrates  has  been  regulated  since  the  year  1848. 

The  procedure  was  thus  reduced  to  system  before  the 
courts  to  which  it  applied  were  formally  constituted  as 
courts.  The  magistrates  acting  under  these  statutes  formed 
in  fact  criminal  courts,  though  they  were  not  so  described  by 
statute  till  very  lately.     But  the  extent  of  their  jurisdiction 

1  e.g.  24  &  25  Vic.  u.  97,  s.  69,  but  innumerable  examples  might  be"given. 


124  GKADUAL    EXPANSION   OF   PRESENT   SYSTEM. 

Chap.  IV.  was  increased  by  modem  legislation  and  as  a  formal  pro- 
cedure  was  established  they  came  to  be  invested  with  the  name 
of  courts  of  summary  jurisdiction.  The  following  is  the  history 
of  the  gradual  introduction  of  the  name  and  of  the  reasons 
which  led  to  its  introduction. 

In  1828  the  Courts  of  Quarter  Sessions  were  authorised 
by  ^  6  Geo.  4,  c.  43,  to  divide  their  counties  into  divisions 
for  holding  special  sessions. 

In  1847  justices  "  in  petty  sessions  assembled  and  in  open 
"  court "  were  empowered  to  try  offenders  under  fourteen 
years  of  age  for  simple  larceny.  The  expression  "petty 
"  sessions"  must  at  that  time  have  been  rather  popular  than 
legal,  as  the  preamble  of  12  &  13  Vic.  c.  18  (1849),  recites  that 
"  certain  meetings  of  the  justices  called  petty  sessions  of  the 
"  peace  are  holden  in  and  for  certain  divisions  of  the  several 
"  counties'  of  England  and  Wales  called  petty  sessional 
"  divisions,"  and  that  important  duties  have  lately  been 
assigned  to  the  justices  attending  at  such  petty  sessions.  It 
then  goes  on  to  enact  that  "  every  sitting  and  acting  of 
"  justices  of  the  peace  or  of  a  stipendiary  magistrate  shall 
"be  deemed  a  petty  sessions  of  the  peace,  and  the  district  in 
"  which  the  same  shall  be  holden  shall  be  deemed  a  petty 
"  sessional  division."  Enactments  follow  to  the  effect  that 
places  shall  be  provided  for  holding  such  petty  sessions  out 
of  the  county  or  borough  rate. 

The  summary  powers  of  magistrates  in  cases  of  serious  crime 
were  considerably  enlarged  by  several  later  acts.  The  first 
of  these  was  18  &  19  Vic.  c.  126,  commonly  known  as  the 
Criminal  Justice  Act,  1855,  which  (as  amended  by  31  &  32 
Vic.  c.  116)  gives  justices  summary  jurisdiction  over  theft 
and  embezzlement  of  things  of  the  value  of  less  than  five 
shillings  if  the  party  accused  consents,  and  power,  if  they 
think  fit  to  do  so,  to  take  a  plea  of  guilty  in  cases  where 
the  value  of  the  property  exceeds  five  shillings.  This  was 
followed  by  the  Criminal  Law  Consolidation  Acts  of  1861, 
each  of  which  (except  the  Forgery  Act)  contains  many  pro- 
visions  conferring  jurisdiction   on  justices   in   what   would 

'  Amended  by  6  &  7  Will.  4,  c.  12. 


SUMMARY  JURISDICTION  ACT,    1 879.  _  I25 

commonly  be  described  as  criminal  cases,  such  jurisdiction  Chap.  IV. 
being  in  some  cases  (as,  for  instance,  in  the  case  of  an  assault) 
concurrent  with  that  of  the  superior  courts,  and  in  other 
cases  supplementary  to  it. 

Ten  years  later  the  Prevention  of  Crimes  Act,  1871 
^  (34  &  35  Vic.  c.  112),  conferred  upon  justices  many  powers 
in  connection,  amongst  other  things,  with  the  system  of  police 
supervision  then  established,  and  introduced  (I  am  not  sure 
whether  for  the  first  time)  the  expression  "  Court  of  Sum- 
"  mary  Jurisdiction,"  ^  defining  it  for  the  purposes  of  the  act 
only.  It  may  have  been  used  in  some  later  acts,  but  how- 
ever this  may  be,  the  courts  of  summary  jurisdiction  are 
now  regularly  constituted  and  their  jurisdiction  is  defined, 
and  their  procedure  prescribed  by  the  Summary  Jurisdiction 
Act,  1879  (42  &  43  Vic.  c.  49).  ^  Under  the  provisions  of 
this  act  a  "court  of  summary  jurisdiction  means  any  justice 
"  of  the  peace  or  other  magistrate,  by  whatever  name  called, 
"  to  whom  jurisdiction  is  given  by  or  who  is  or  are  authorised 
"  to  act  under  the  Summary  Jurisdiction  Acts,  or  any  of 
"  such  Acts."  These  acts  are  defined  as  being  11  &  12  Vic. 
c.  43,  the  Summary  Jurisdiction  Act  itself,  and  all  acts  past 
or  future  amending  either  of  them. 

*  The  courts  may  try  all  children  under  twelve  for  any 
offence  except  homicide,  unless  the  parent  or  guardian 
objects. 

*  They  may  try  persons  between  twelve  and  sixteen,  if 
they  consent,  for  larceny,  and  cognate  offences,  and  adults,  if 
they  consent,  for  a  somewhat  more  restricted  class  of  crimes. 

®  They  may  also  receive  a  plea  of  guilty  from  an  adult 
for  an  offence  for  which  a  person  between  twelve  and  sixteen 
might  plead  guilty. 

The  limit  of  their  power  of  inflicting  punishment  is  in 
most  cases  three  months'  imprisonment  and  hard  labour. 
In  the  case  of  adults  pleading  guilty,  it  is  six  months'  im- 
prisonment and  hard  labour.     In  the  case  of  children  under 

1  This  replafced  a  similar  Act,  32  &  33  Vic.  i;.  69,  the  Habitual  Criminals 
Act,  ]869. 

^  See  3.  17.     The  definition  is  Very  elaborate. 

'  s.  50.  ^  s.  10  (1).  "  s.  11  (1).  6  <i.  13. 


12.6 


FEANCHISE  COURTS. 


Chap.  IV.  twelve,  one  month's  imprisonment,  and  in  the  case  of  boys 
under  sixteen  and  twelve,  whipping  to  the  extent  of  twelve 
and  six  strokes  of  a  birch  respectively. 


THE  COURTS   OF  THE  FEANCHISES. 

I  now  pass  to  the  courts  of  which  the  interest  is  only 
historical.  From  the  earliest  period  of  English  history,  the 
King  claimed  and  exercised  the  right  of  granting  jurisdiction 
of  greater  or  less  extent  to  his  subjects.  It  would  be  impos- 
sible in  such  a  work  as  this  to  treat  the  subject  of  the  extent 
and  nature  of  this  branch  of  the  prerogative  fully,  or  to  give 
anything  like  a  detailed  history  of  the  manner  in  which  it 
has  in  fact  been  used.  It  will  be  sufficient  for  my  purpose 
to  refer  to  three  principal  classes  of  franchises ;  that  is  to  say 
(1)  grants  of  courts  to  manors,  castles,  &c.,  and  grants  of  courts 
leet ;  (2)  grants  of  Jura  Regalia  and  Counties  Palatine  ;  and 
(3)  Forest  Courts. 

The  way  in  which  in  the  very  earliest  times  property  in 
land  was  accompanied  by  jurisdiction  is  fully  treated  (amongst 
other  writers)  by  Sir  Francis  Palgrave  and  Mr.  Stubbs,  and  I 
will  content  myself  with  a  reference  to  their  writings  on  the 
subject.  Whatever  may  have  been  the  precise  nature  and 
origin  of  manors  and  manor  courts,  there  can  be  no  doubt 
that  they  formed  an  important  element  in  the  judicial  in- 
stitutions of  the  country  before  and  at  the  time  of  the  form- 
ation of  the  common  law.  The  following  passage  from  Brac- 
ton  gives  a  full  account  of  the  state  of  the  franchise  courts 
in  his  time.  "  There  are  certain  barons  and  others  who  have 
"  franchise,  to  wit,  sock  and  sack,  toll  and  team,  infangenthef, 
"  and  utfangenthef  They  may  judge  in  their  court  if  any 
"  one  is  found  within  their  liberty  in  actual  possession 
"  of  stolen  goods ;  ^  that  is  to  say  (sicut),  handhabend  or 
"  bakbarend,  and  if  he  is  pursued  by  the  ^  saccabor  "  (the 
person  entitled  to  the  goods),  "for  if  he  is  not  in  actual 
"  possession  of  the  goods,  although  he  may  be  followed  as  a 

^  "S6y situs  de  aliquo  latroeinio  manifesto."  '^  1  Stubbs,  Gons.  Hist 


THE  HUNDEED  ROLLS.  I  27 

"  thief"  (probably  by  hue  and  cry),  "  Ht  shall  not  pertain  to  Chap.  IV. 
"  the  court  (i.e.  the  franchise  court),  to  take  cognizance  of  '' 

"  such  a  theft,  or  to  inquire  by  the  country,  whether  the 
"  person  not  so  possessed  was  guilty  or  not," 

"  Now  infangenthef  means  a  thief  taken  on  the  ground  of 
"  another,  ^  being  one  of  hist  own  men,  and  being  in  actual 
"  possession  of  the  stolen  property.  Utfangenthef  is  a  foreign 
"  thief  coming  from  elsewhere  from  the  land  of  another,  and 
"  taken  in  the  land  of  the  lord  of  the  franchise.  But  it  does 
"  not  follow  that  he  (the  lord)  can  bring  back  into  his  franchise 
"  his  own  man  taken  out  of  his  franchise  and  there  judge 
"  him  by  reason  of  such  franchise.  For  a  man  must  abide 
"  the  law  of  the  place  where  he  offends.  The  lords  of 
"  franchises  may  judge  their  own  robbers  and  foreign 
"  robbers  taken  in  their  franchise.  They  can  also  take 
"  cognizance  of  medleys  and  assaults  and  woundings,  unless 
"  felony  or  breach  of  the  king's  peace  or  the  sheriff's  is 
"  charged." 

It  so  happens  that  we  have  the  means  of  measuring  with 
accuracy  the  nature  and  extent  of  these  franchises.  The 
troubles  of  the  reign  of  Henry  III.  led  to  the  assumption  by 
the  nobility  of  all  sorts  of  authority,  and  especially  to  the 
exercise  by  them  of  an  immense  amount  of  criminal  jurisdic- 
tion. Edward  I.,  on  his  return  from  the  crusade  in  the 
second  year  of  his  reign,  issued  a  commission  to  justices, 
in  the  nature  of  justices  in  eyre,  to  inquire  into  the  state 
of  the  demesnes,  the  rights  and  revenues  of  the  Crown, 
the  conduct  of  the  sheriffs,  and  in  particular  into  all  fran- 
chises. The  articles  drawn  up  for  their  guidance  are  very 
similar  to  those  which  were  issued  to  the  justices  in  eyre. 
One  of  them  which  has  special  reference  to  franchises  is  thus 

^  "Non  pertineWt  ad  curiam  hundreda  vel  wapentakia  cognoscere  de 
"  hujusmodi  furtis."  I  do  not  understand  the  words  hundreda  vel  wapen- 
takia. Sir  Horace  Twiss  translates  it  "shall  not  pertain  to  the  court,  nor 
"the  hundred,  nor  the  wapentake,  to  take  cognizance,"  &o.  This  can 
hardly  be  right,  as  it  would  imply  that  a  thief  within  a  franchise  not  taken 
in  possession  of  the  goods  would  not  be  liable  to  be  tried  at  all.  Besides, 
this  does  not  seem  to  be  the  meaning  of  the  words.  Can  it  mean  "  it  does 
"  not  appertain  to  the  court  in  the  hundred  or  wapentake,  i.e.  acting  as  a 
' '  hundred  court,  to  take  cognizance, "  &o.  ? 

^  "De  hominibus  suis  propriis,"  Sir  vt  Twiss  translates  "by  his  own 
"  men,"  which  I  think  is  not  consistent  with  what  follows. 


128  STATUTE  OF  QUO   WARRANTO. 

Chap.  IV.  worded,  "  Qui  etiam  alii  a  rege  clamant  habere  retornum 
"  brevium  et  qui  teneant  placita  de  vetito  namio,  et  qui  cla- 
"  mant  habere  wreccum  maris  quo  waranto  et  alias  libertates 
"  regias  ut  furcas  assisas  panis  et  cerevisise  et  alia  quae  ad 
"  coronam  pertinent  et  quo  tempore." 

The  cornmissioners  went  through  every  county  in  England, 
and  took  inquisitions  as  to  every  hundred  showing  in  detail, 
in  reference  to  each  what  franchises  existed  in  it  and  under 
what  warrant  they  were  claimed.  Their  returns  are  called 
the  Rotuli  Hundredorum,  and  they  furnish  as  complete  and 
authentic  a  picture  of  one  part  of  English  life  in  the  years 
1275-8,  as  Domesday  Book  affords  of  another  about  two 
centuries  earlier. 

The  returns  made  by  the  Commissioners  were  the  occasion 
of  the  ^  Statute  of  Gloucester,  the  effect  of  which  was  to 
declare  that  all  who  claimed  franchises  must  appear  before 
the  king  or  the  justices  in  eyre  and  prove  their  title  to  them, 
and  that  if  they  failed  to  do  so  the  franchises  should  be 
seized  into  the  king's  hands.  ^This  statute  creates  the  writ 
Qiu)  Warranto,  which  still  affords  a  remedy  for  excesses  of 
jurisdiction  of  whatever  nature. 

The  Hundred  Rolls  deserve  a  far  more  careful  examination 
than  could  properly  be  given  to  them  in  this  place,  but  I  will 
give  a  few  illustrations  of  that  part  of  their  contents  which 
bears  upon  the  history  of  the  courts  granted  by  charter..  The 
general  impression  which    they  convey   is    that   the    usur- 

-  6  Edw.  1  (1278). . 

^  The  note  made  by  Coke  in  his  second  Institute  (p.  280)  on  the  Statute  of 
Gloucester,  quotes  from  Polydore  Virgil  a  passage  treating  the  Act  as  most 
tyrannical.  "  The  king  wanting  money,"  says  Coke,  paraphrasing  his 
authority,  "there  were  some  innovators  in  those  days  that  persuaded  the 
"  king  that  few  or  none  of  the  nobility,  clergy,  or  commonwealths  that  had 
"  franchises  of  the  grants  of  the  king's  predecessors  had  right  to  them,  for 
"  that  they  had  no  charter  to  them  for  the  same,  for  that  in  troth  most  of 
"  their  charters,  either  by  length  of  time,  or  injury  of  wars  and  insurrections, 
"or  by  casualty,  were  either  consumed  or  lost :  whereupon  (as  commonly 
"  new  inventions  have  new  ways)  it  was  openly  proclaimed  that  every  mau 
"  that  held  those  liberties  or  other  possessions  by  grant  from  any  of  the 
"  king's  progenitors  should  before  certain  selected  persons  thereunto  appointed 
"  show  '  quo  jure  quove  nomine  iUi  retinerent,'  &c.  Whereupon  many  that 
"  bad  long  continued  in  quiet  possession  were  taken  into  the  king's  hands. 
"  Hereat  the  story  says,  'Visum  est  omnibus  edictum  ejusmodi  post  homines 
"  '  natos  longe  asperrimum :  qui  fremitus  hominum  ?  quam  irati  animi  ? 
"  '  quanto  in  odio  princeps  esse  repente  coepit.'  "  Perhaps  if  Coke  had  been 
acquainted  with  the  Hundred  Eolls  (which  he  does  not  mention)  he  would 
Lave  been  of  a  different  opinion. 


FRANCHISE  OF  INFANGTHIEF.  I  29 

pation  of  franchises  had  gone  to  an  extraordinary    length.  Chap.  IV. 

In  every  county  there  are  numerous  entries  of  "  habet  furcas ; " 

"  he  has  a  gallows."     Thus  in  Bedfordshire  there  were  eight, 

in  Berkshire  thirty-five,  of  which  no  less  than  twelve  are 

mentioned  in  the  hundred  of  Newbury  alone,  nor  were  these 

"  furcce "  left  idle,  as  the  following   entry  (there  are  many 

others)  sufficiently  shows :  ^  "Hundr',  de  Toltyntre.   The  Arch- 

"  bishop  of  Canterbury  has  return  of  writ,  wreck  of  the  sea, 

"  gallows,  assize  of  bread  and  beer,  and  pleas  of  wrongful  dis- 

"  tress,  they  (the  jurors)  knew  not  by  what  warrant.  Also  Lord 

"  William  de  Monte  Cahis  has  a  gallows  at  Swaneschamp  in 

"  his  barony,  and  there  three  thieves  were  hung,  and  the 

"  monks  hospitallers  took  them  to  the  monastery  where  one  of 

"  them  was  found  to  be  alive,  and  he  stayed  in  that  church  as 

"  long  as  he  pleased,  and  left- it  when  he  pleased,  and  is  still 

"  alive.     Also  they  say  that  nine  years  ago  Adam  Toxkemale 

"  was  hung  in  the  same  place,  on  an  oak,  by  the  judgment  of 

"  the  court  of  Hertleye,  and  he  was  taken  there  by  the  suitors 

"  of  the  whole  court,  and  they  found  the  gallows  fallen  down 

"  and  they  will  not  put  it  up.     The  jurors  knew  not  by  what 

"  warrant." 

The  following  illustration  of  the  same  right  is  found  in  the 
2  Parliament  EoUs.  In  1290  (18  Edw.  1),  "  Bogo  de  Knowell 
"  the  King's  bailiff  of  Montgomery  complains  that  whereas  one 
"  of  the  King's  men  of  Montgomery  slew  one  of  the  men  of 
"  the  Bishop  of  Hereford  and  fled  to  the  land  of  Edmund 
"  Mortimer  of  Wigmore, — Edmund  though  often  asked  by 
"  Bogo  to  give  up  the  said  felon  to  be  tried  in  the  King's 
"  Court  tried  him  on  the  suit  of  the  relations  of  the  slain 
"  man  in  his  own  court  at  "Wigmore,  and  hanged  him  to  the 
"  injury  of  the  franchise  of  the  said  castle  of  Montgomery." 
Mortimer  confessing  the  fact,  the  liberty  of  Wigmore  was 
adjudged  to  be  forfeited,  but  the  King  allowed  him  to  retain 
it  on  condition  "  quod  idem  Edmundus  in  signum  restitu- 
"  tionis  libertatis  Domini  Eegis  preedictse,  reddat  predicto 
"  Bogoni  Ballivo  Domini  Regis,  quandam  formam  hominis 
"  nomine  et  loco  prsedicti  felonis.  Et  prseceptum  est  eidem 
"  Ballivo  quod  formam  illam  admittat  et  loco  prsedicti 
1  1  not.  Eund.  220.  ^  1  £«t.  Par.  45. 

VOL.  I.  ^ 


130  ILLUSTRATIONS  OF  FBANOHISE  COURTS. 

Chap.  IV.  "  felonis  suspendere  faciat,  et  suspens',  quam  diu  poterit 
"  pendere  permittat,"  &c.  Mortimer  made  difficulties  about 
delivering  the  effigy,  and  his  franchise  was  seized  till  he 
did  so. 

Innumerable  entries  in  the  Rolls  show  the  nature  of  the 
franchise  courts  and  the  reason  why  they  were  so  much 
valued.  They  were  a  regular  source  of  income  to  the  lord 
of  the  franchise,  and  were  by  him  farmed  out  to  bailiffs  or 
stewards  who  made  their  profit  by  fines  and  amercements^ 
which  were  often  exorbitant  and  must  always  have  been 
vexatious.  The  power  to  hold  courts  frequently,  to  require 
the  attendance  at  them  of  all  who  owed  suit  and  service,  and 
to  levy  fines  for  every  default  must  have  been  extremely 
liable  to  abuse.  The  effect  of  it  was  to  establish  in  every 
liberty  a  person  who  was  at  once  a  common  informer  and  a 
judge  in  his  own  cause.  ^  In  regard  to  the  town  of  Ponte- 
fract  for  instance,  the  return  is  that  the  Earl  of  Lincoln  and 
his  bailiffs  abuse  their  franchise  by  forcing  the  suitors  to 
attend  daily  or  weekly,  and  to  ^  swear  as  often  as  they  please, 
and  if  any  one  objects  they  imprison  him  and  keep  him  im- 
prisoned till  he  answers  any  sort  of  plea. 

The  bailiffs,  moreover,  had  many  ways  of  extorting 
money  by  the  abuse  of  their  power.  ^In  the  hundred  of 
Tenterden  the  jurors  present  that  one  Hugo  de  Wey,  who 
was  probably  bailiff  or  chief  constable,  "took  of  Josiah  de 
"  Smaldene  12d.,  for  removing  him  from  an  assize.  Also  he 
"  impounded  the  mare  of  Gunnildade  M'skesh'm  by  virtue  of 
"  his  office,  and  would  not  give  her  up  till  he  got  half  a  marc, 
"  which  was  not  due  to  him.  Also,  by  virtue  of  his  office,  he 
"  took  ten  shillings  from  Henry  Miller,  falsely  alleging  that  a 
"  prisoner  who  had  been  attached  in  Tenterden  hundred  had, 
"  by  Miller's  means  escaped.  Also  he  forced  Joseph  Askelin 
"  of  Emsiden,  and  William  his  son  and  his  daughter  to  come 
"  to  the  house  of  William  de  la  Feld,  in  the  same  hundred, 
"  and  they  came.  And  because  they  had  been  bound  by 
"  robbers  in  their  own  houses  in  the  hundred  of  Ralwinden 
"  and  could  not  say  by  whom  they  were  bound  he  took  from 

1  1  Eot.  Hund.  119.  ^  i.e.  to  serve  on  juries. 

'  1  Rot.  Build.  21 7. 


EFFECTS  OF  LOCAL  JURISDICTION.  I3I 

"them  half  a  marc.     Also  Hugh  took  a  marc  unjustly  from  Chap.  IV. 

"  Henry  Smith  of  Tenterden,  because  the  said  Henry  threw  out 

"  of  his  own  close  a  linen  gown  and  towels  which  a  female 

"  neighbour  of  his  hung  there  without  his  knowledge  and  on 

"  an  unlawful  {falsa)  occasion.     Also  Hugo  charged  the  said 

"  Henry,  while  he  lay  ill  in  bed,  with  being  an  usurer,  whereby 

"  the  said  Henry  promised  the  said  Hugh  twenty  shillings  and 

"  paid  him,  and  paid  forty  shillings  for  the  use  (ad  opus)  of 

"  Lord  William  de  Hevre,  the  then  sheriff,  that  he  might  have 

"  an  inquisition  from  seven  hundreds  to  see  whether  he  was  a 

"  usurer  or  not,  which  inquisition  acquitted  him.     And,  by 

"  virtue  of  his  office  he  (de  Wey)  took  one  Nicholas  Mason  of 

"  the  parish  of  Lamberhurst  on  account  of  a  quarrel  which 

"  Mason's  sister,  Beatrix,  had  against  him,  to  wit,  that  she  had 

"  lent  Nicholas  £20  of  her  money  which  he  would  not  pay 

"  her.     And  Hugh  kept  the  body  of  the  said  Nicholas  in  the 

"  hundred  of  Tenterden  till  he  unjustly  received  the  aforesaid 

"  money  and  kept  it  for  himself,  and  Beatrix  has  got,  and 

"  can  get,  none  of  it,"  &c. 

The  hundred  of  Tenterden,  which  was  in  the  king's  hands, 
paid  the  king,  with  seven  other  hundreds,  £10  a  year  at  Dover 
Castle.  De  Wey's  extortions  came  in  ^  all  to  £27  4s.  4^  or 
nearly  three  times  as  much  as  had  to  be  paid  to  the  king. 

The  Hundred  Rolls  supply  various  illustrations  of  the 
spirit  which  these  local  jurisdictions  fostered,  one  of  which  I 
will  quote.  ^  In  the  wapentake  of  Stayncliff,  in  Yorkshire, 
the  return  says  :  "  Gilbertus  de  Clifton  ballivus  de  Stayn- 
"  cliff"  (which  was  in  the  hands  of  the  Earl  of  Lincoln  by 
"  grant  from  Henry  III.),  "verbis  turpessimis  (sic)  insultavit 
"  Willielmum  de  Chatterton  Justiciarium  assignatum  ad  istas 
"  inquisitiones  capiendas  et  minas  intulit  pro  eo  quod  sug- 
"  gessit  juratoribus  patriae  quod  non  omittent  veritatem  dicere 
"  de  baUivis  comitis  Lincolnise  propter  aliquem  timorem  et 
"  dictus  Gilbertus  dixit  ei  quod  si  prsesens  fuisset  ubi  hsec 
"  verba  predicasset,  ipsum  traxisset  per  pedes,  et  adjecit  quod 
"  ante  dimidiuna  annum  noluisset  inquisitiones  istas  fecisse 
''  pro  tots,  terrS,  sv&. 

1  I  have  omitted  several  for  the  sake  of  brevity. 

2  1  Rot.  Eund.  111. 

K   2 


132  GRANTS  OF  HUNDREDS  AND   LEETS. 

Chap.  IV.  "  Item  cum  Keginald  Blanchard  de  Wadinton  comparuisset 
"  coram  duodecem  juratores  istius  wapentakise  ostensurus 
"  transgressiones  sibi  et  aliis  de  patriS,  per  ballivos  comitis 
"  Lincolnise  illatas,  dictus  Gilbertus  hsec  percipiens  cepit 
"  averia  sua  ;  et  retinuit  nee  propter  mandatum  justiciari- 
"  orum  ad  inquisitiones  illis  partibus  capiendas  assignatos  ea 
"  deliberare  curavit,  sed  dixit  quod  si  ipsi  infra  libertatem  sui 
"  domini  venissent  corpora  eorum  et  omnia  bona  sua  arestasset 
"  nisi  venisse  se  ^ nomine  comitis  domini  sui." 

2  The  use  made  of  these  inquisitions  seems  to  have  been 
that  after  the  passing  of  the  Statute  of  Gloucester,  the  inqui- 
sitions or  copies  of  them  were  given  to  the  justices  on  their 
next  eyre,  and  in  every  case  in  which  the  return  "  nesciunt 
"  quo  warranto  "  appeared  on  the  Hundred  Roll,  the  person 
in  possession  of  the  franchise  was  required  to  show  his  title, 
and  if  he  failed  to  do  so  was  deprived  of  it. 

These  proceedings  must  have  struck  a  heavy  blow  at  the 
Franchise  Courts,  but  it  appears  from  the  Parliament  Rolls 
that  the  practice  of  granting  out  hundreds  to  private  persons 
continued  long  afterwards.  The  effect  of  this  was  that  the 
fines  and  amercements  of  the  Hundred  Court  went  to  the 
grantee  for  his  own  use,  subject  to  a  fixed  payment  to  the 
king.  The  practice  however  was  avowedly  a  bad  one.  In 
^  1306  (35  Edw.  1),  the  following  entry  appears  on  the 
Parliament  Roll :  "  The  king  has  said  and  commanded  that 
"  after  the  grant  which  he  has  made  to  the  Earl  of  Lincoln  to 
"  have  return  of  writs  in  two  hundreds  for  his  life,  he  will 
"  grant  no  such  franchise  to  any  one  else  as  long  as  he  lives, 
"  except  his  own  children.  And  the  king's  will  is  that  this  be 
"  enrolled  in  the  Chancery,  the  Wardrobe,  and  the  Exchequer." 

In  1328,  by  the  Statute  of  Northampton  (2  Edw.  3,  c.  12), 
it  was  enacted  that  hundreds  and  wapentakes  let  to  farm 
should  be  rejoined  to  the  counties  to  which  they  belonged, 
and  not  be  so  let  in  future.* 

■^  There  is  here  an  ahbreviation  which  I  cannot  read  ;  the  word  must  mean 
"  proyed,"  or  the  like. 

^  See  Mr.  Illingworth's  introduction  to  the  Eotuli  Hundredorum. 

3  1  Rot.  Par.  111. 

*  In  1376  (50  Edw.  3)  there  occurs  an  entrj'  on  the  Parliament  Roll 
which  shows  that  this  statute  was  not  always  observed,  and  which  illustrates 
in  detail  the  effect  of  the  grant  of  a  hundred.     2  Mot.  Par.  349. 


a 


COUNTIES  PALATINE.  133 

The  decline  in  the  importance  of  the  Hundred  Courts,  and  Chap.  IV. 
the  effect  of  the  writ  of  Quo  Warranto  and  of  the  Statute  of 
Northampton,  must  have  been  to  put  an  end  to  a  large 
number  of  the  Franchise  Courts,  though  as  I  have  already- 
said,  the  courts  leet,  which  are  still  attached  to  particular 
manors  or  other  places,  still  remain  as  a  vestige  of  them. 

A  minute  inquiry  into  the  history  of  all  the  Franchise 
Courts  would,  of  course,  be  out  of  the  question  on  this  occa- 
sion, but  I  may  refer  shortly  to  a  few  of  the  most  important 
of  them  which  survived  in  name  till  very  lately,  though  they 
had  for  a  long  time  been  practically  absorbed  into  the 
general  system. 

The  most  important  of  these  courts  were  the  courts  of  the 
three  Counties  Palatine,  Cheshire,  Durham,  and  Lancashire. 

According  to  ^  Coke  the  County  Palatine  of  Chester  being  a 
County  Palatine  by  prescription,  was  "  the  most  ancient  and 
"  most  honourable  County  Palatine  remaining  in  England  "  in 
his  time.  It  was  originally  granted  by  the  Conqueror  to  his 
nephew  Hugh  Lupus,  and  came  afterwards  to  be  one  of  the 
honours  of  the  Prince  of  Wales. 

The  County  Palatine  of  Durham  came  next  in  antiquity. 
There  are  several  records  in  the  Parliament  Rolls  which  set 
out  its  history  and  privileges  at  considerable  length. 

In  the  EoUs  of  Parliament,  21  &  22  Edw.  1  (a.d.  1292), 
there  is  a  curious  record  of  a  presentment,  made  under  the 
Statute  of  Gloucester,  as  to  the  privileges  of  the  Bishop  of 
Durham,  from  which  it  appears  that  the  Bishop  "  solet  per 
"  ballivos  suos  obviare  justic'  itineratur'  hie  in  adventu  suo 
"  infra  com'  istum  apud  Chylewell  vel  apud  Fourstanes  vel 
"  apud  Quakende  brigge,  videlicet  per  quam  illarum  partium 
"  contingeret  justic'  venire.  Et  postea  venire  coram  eis  hie 
"  apud  Novum  Castrum  primo  die  itineris  et  tarn  in  obviatione 
"  justic'  quam  hie  petere  a  prsefatis  justic'  articulos  coronse 
"  placitandos  hie  in  itinere."  It  also  appears,  however,  that 
the  Bishop  had  "  Cancellarium  suum  et  per  brevia  sua  et 
"justiciaries  suos  proprios  placitat"  in  certain  parts  of  the 
county.  The  later  history  of  the  County  Palatine  may  be 
collected  from  a  record  in  the  Parliament  Rolls,  iv.  426 — 
1  ithlnst.  p.  211. 


134  COUNTIES  PALATINE. 

Chap.  IV.  31,  11  &  12  Hen.  6,  A.D.  1433.  In  this  record  Durham  is 
said  to  have  been  a  County  Palatine  before  the  Conquest.. 
The  subject  is  also  discussed  at  length  in  the  preface  to 
Begistrum  Bunelmense,  published  by  order  of  the  Master  of 
the  Eolls  and  edited  by  Sir  T.  D,  Hardy.  The  County 
Palatine  was  vested  in  the  Bishop  of  Durham  in  the  year 
1836,  when  by  ^  6  &  7  Will.  4,  c.  19,  the  palatine  juris- 
diction of  the  Bishop  of  Durham  was  transferred  to  the 
Crown., 

As  to  the  County  Palatine  of  Lancaster,  Coke  says : — "  In 
"  full  parliament  a°.  50]  Edw.  3  (1376),  the  king  erected 
"  the  county  of  Lancaster  a  County  Palatine,  and  honoured 
"  the  Duke  of  Lancaster  (John  of  Gaunt)  therewith  for  term 
"  of  his  life,"  and  he  quotes  from  the  Patent  Rolls  a  grant  to 
that  effect,  saying  that  the  Duke  was  to  hold  as  freely  as  the 
Earl  of  Chester.  The  Duchy  was  held  by  Henry  V.  and 
Henry  VI,,  and  was  the  subject  of  a  remarkable  act,  in 
1  Edw.  4  (1461),  ^by  which  it  is  "ordeigned  and  stab- 
"  lished  "  that  certain  lordships,  &c.,  said  to  be  forfeited  "by 
"  Henry  late  called  King  Henry  the  Sixt  make  and  be 
"  called  the  said  '  Duchie  of  Lancaster  Corporate'  and  be 
"  called  the  '  Duchy  of  Lancaster,'  and  that  the  County  of 
"  Lancaster  be  a  County  Palatine,  with  a  real  chancellor, 
"  judges,  and  officers  there  for  the  same,  and  over  that 
"  another  seal  called  the  seal  of  the  Duchy  of  Lancaster." 
The  Duchy  was  by  this  act  permanently  annexed  to  the 
Grown. 

Anciently  ^ "  the  power  and  authority  of  those  that  had 
"  Counties  Palatine  was  king-like,  for  they  might  pardon 
"  treasons,  murders,  felonies,  and  outlawries  thereupon.  They 
"  might  also  make  justices  of  eyre,  justices  of  assize,  of  gaol 
"  delivery,  and  of  the  peace.  And  all  original  and  judicial 
"  writs,  and  all  manner  of  indictments  of  treason  and  felony 
"  and  the  process  thereupon  were  made  in  the  name  of  the 
''  person  having  such  Counties  Palatine.  And  in  every  writ 
"  and  indictment  within  any  County  Palatine  it  was  supposed 
"  to  be  contra  paeem  of  him  that  had  the  County  Palatine." 

1  See  also  21'&  22  Vic.  p.  45.  2  5  j^f^  p„^_  478_ 

"  ith  Ijist.  2,04. 


FOREST  COURTS,  135 

These  powers  were  greatly  diminished  by  the  act  27  Hen.  Chap.  IV. 
S,  c.  24  (a.d.  1535),  which  enacted  that  no  one  but  the 
king  should  have  power  to  make  any  justice  of  assize,  of 
the  peace,  or  of  gaol  delivery,  in  any  County  Palatine  or 
other  liberty,  and  that  all  writs  and  indictments  should  be  in 
the  king's  name  and  laid  as  against  the  king's  peace.  It  was, 
however,  provided  that  commissions  to  the  county  of  Lan- 
caster should  be  under  the  king's  usual  seal  of  Criminal  Courts 
of  Lancaster.  This  put  the  Durham  and  Lancashire  Assizes 
and  Quarter  Sessions  on  the  same  footing  as  those  of  the  rest 
of  the  country,  except  that  the  Lancashire  commissions  were 
under  a  different  seal.  Chester  had  till  1830  a  local  Chief 
Justice  and  Second  Justice,  who,  however,  were  appointed  by 
the  Crown.  These  offices  were  abolished,  andlt  was  enacted 
that  Assizes  should  be  held  in  Chester  and  in  Wales,  in  the 
same  way  as  in  other  places,  by  11  Geo.  4,  and  1  Will.  4. 
c.  70,  ss.  14  and  20.  Lastly,  it  was  provided  by  the  Judi- 
cature Act  of  1873  (36  &  37  Vic.  c.  66,  s.  99),  that  "  the 
^'  Counties  Palatine  of  Lancaster  and  Durham  shall  respec- 
"'  tively  cease  to  be  Counties  Palatine  as  regards  the  issue 
"  of  Commissions  of  Assize  or  other  like  commissions  but  no 
"  further."  t 

Thus  all  the  greater  Franchise  Courts  have  by  degrees  been 
turned  into  Courts  of  Assize  and  Quarter  Sessions  like  the 
rest. 

THE  FOREST  COURTS.  '^i 

The  Courts  of  the  Forests  were  at  one  time  important, 
and  their  procedure  was  curious.  A  forest  was  one  of  the 
highest  of  royal  franchises.  It  was  thus  defined  by 
1  Manwood :  "  A  forest  is  a  certain  territory  of  woody 
"  grounds  and  fruitful  pastures,  privileged  for  wild  beasts 
"  and  fowls,  fowls  of  forest  chase  and  warren,  to  rest  and 
"  abide  in  the  safe  protection  of  the  Kiag."  Within  these 
territories  the  forest  laws  prevailed,  and  were  administered  by 
the  Forest  Courts.  It  must  not  be  supposed  that  the  forests 
were  mere  wildernesses,  or  that  the  soil  was  the  king's  pro- 
perty. On  the  contrary,  the  soil  was  private  property,  and 
^  Forest  Laws,  p.  40. 


136  PEOSECUTION    OF    FOREST    OFFENCES. 

Chap.  IV.  the  population  might  be  considerable,  and  these  were  the 
circumstances  which  made  the  forest  laws  so  great  a  hardship 
as  they  undoubtedly  were.  The  principal  object  of  the  forest 
laws  was  to  subordinate  within  the  forests  all  the  rights  of  the 
proprietors  to  the  exercise  of  the  King's  right  of  hunting. 
"  The  laws  of  the  forest  do  restrain  every  man  from  cutting 
"  down  of  his  woods  within  his  own  freehold  in  the  forest "  is 
the  general  title  of  ch.  viii.  2,  of  Manwood,  and  though  this 
rule  was  subject  to  exceptions  it  must  have  acted  most 
harshly  ;  for  instance,  ^  an  owner  wishing  to  cut  down  a  wood 
had  to  "  repair  to  the  Lord  Chief  Justice  of  the  Forest  and 
"  show  his  honour  what  his  request  is,"  and  get  "  a  writ  of 
"  ad  quod  damnum  "  addressed  to  the  Warden  of  the  Forest, 
who  was  to  summon  a  jury,  who  were  to  certify  to  the  King  in 
Chancery  upon  oath  "these  ten  points  following."  Many 
other  acts  of  ownership,  e.g.  ^  ploughing  up  ancient  meadows 
amounted  to  waste,  which  was  a  forest  offence.  ^  An  "  assart " 
was  worse  than  a  waste.  It  was  where  a  man  cut  down  woods 
and  tilled  the  ground.  A  *  purpresture  or  encroachment  was 
even  worse  than  an  assart,  and  many  other  offences  might  be 
committed, — by  keeping  dogs,  by  surchargrag  the  forest,  by 
poaching,  or  by  unauthorised  taking  of  various  casual  profits. 
The  system  of  courts  by  which  these  offences  were  dealt 
with  was  elaborate.  The  officers  of  the  forest  were  the 
Verderers,  elected  like  the  Coroner  in  the  County  Court; 
the  Regarders;  the  Foresters.  The  foresters  resembled 
constables ;  the  regarders  were  inspectors  who  from  time  to 
time  visited  the  forest ;  and  the  verderers  were  the  judges  of 
the  local  courts  and  heads  of  the  forest  to  which  they  were 
attached.  Above  all  these  was  the  Lord  Chief  Justice  in 
Eyre  of  the  Forests.  There  were  three  separate  courts  by 
which  the  forest  law  was  enforced.  Once  in  every  forty  days 
was  held  a  court  of  attachment ;  three  times  a  year  a  Court 
of  Swanimote  (the  mote  or  meeting  of  the  swains) ;  and  at 
uncertain  intervals  a  Court  of  Justice  Seat,  presided  over  by 
the  Lord  Chief  Justica  in  Eyre  of  the  Forests.  When  an 
offence  was  committed  and  came  to  the  knowledge  of  the 

'  Forest  Laws,  viii.  3.         '  76.  vlli.  5.  *  lb.  ix.  2. 

*  lb.  xi. 


COURTS   OP  ATTACHMEKT,  SWANIMOTE,  AND  JUSTICE  SEAT.  137 

forester,  it  was  his  duty  to  attach  the  suspected  offender,  Chap.  IV. 
i.e.,  to  take  steps  to  secure  his  appearance  to  answer  for  his 
offence.  ^  This  might  be  done  according  to  circumstances, 
either  by  seizing  "  his  cows,  his  horse,  or  any  other  goods 
"  that  he  had  within  the  forest,"  or  (if  he  was  "  taken  with  the 
"  manner  "  "trespassing  in  vert ")  by  attaching  his  body  sub- 
ject to  the  right  of  being  bailed  or  mainprised,  or  if  taken  in 
the  manner  in  certain  other  cases,  by  attaching  his  body 
without  bail  or  mainprise,  i.e.,  by  imprisoning  him.  At  the 
Court  of  Attachments  all  such  attachments  were  presented 
and  enrolled  under  the  direction  of  the  verderers,  and  both 
things  and  persons  so  attached  might  be  replevied.  "^  At  the 
Court  of  Swanimote,  held  three  times  a  year,  the  verderers 
were  judges,  and  they  and  all  the  officers  of  the  forest,  and 
four  men  and  the  reeve  from  every  township  in  the  forest,  had 
to  attend  and  receive  indictments  for  forest  offences,  especially 
in  respect  of  the  persons  attached  by  the  foresters  at  the 
Courts  of  Attachment.  The  Swanimote  Court  either  con- 
victed or  acquitted  as  it  seems  on  their  local  knowledge. 
®  Manwood  says  :  "  All  the  presentments  of  the  foresters  for 
"  any  offence  in  the  forest,  either  in  vert  or  venison,  are  there 
"  delivered  to  the  jury  which  are  sworn  for  that  purpose  to 
"  inquire  the  truth  of  those  matters  ;  and  if  the  jury  do  find 
"  those  presentments  that  the  foresters  have  presented  be  true, 
"  then  the  offender  against  whom  they  are  presented  doth 
"  stand  convicted  thereof  in  law,  and  shall  not  per  assisas 
"  forestse  traverse  any  such  indictment." 

The  Court  of  Swanimote,  however,  could  not  give  judgment. 
This  power  was  vested  exclusively  in  the  Court  of  Justice 
Seat,  which  was  held,  when  the  King  issued  a  commission 
for  that  purpose,  by  an  officer  of  great  dignity,  called  the 
Lord  Chief  Justice  of  the  Forest  in  Eyre.  The  charges 
given  at  the  Swanimote  and  at  the  Court  of  Justice  Seat  *  are 
printed  in  Manwood,  and  enumerate  all  the  offences  which 
could  be  committed,  either  against  the  forest  laws  by  the 
public,  or  by  officers  of  the  forest  against  the  public. 
They  are  most  elaborate,  the  first  containing  forty-five,  and 

1  Forest  Zcnos,  zxii.  5.  ^  2h.  xxiii.  2. 

'  2b.  xxiii.  6.  *  lb.  xxiii.  7,  andxxiv. 


138  WELSH  COURTS. 

Chap.  IV.  the  second  eighty-four  heads.  The  Court  of  Justice  Seat 
passed  judgment  on  the  offenders  presented  at  the  Court  of 
Attachments  and  convicted  at  the  Court  of  Swanimote,  and 
from  its  decision  there  was  no  appeal.  ^"The  Lord  Chief 
"  Justice  of  the  Forest  hath  an  absolute  authority  appointed 
"  unto  him  to  determine  of  offences  that  are  committed  and 
"  done  within  the  King's  Majesty's  forests,  either  in  vert  or 
"  venison,  and  the  same  offences  are  to  be  determined  before 
"  him,  and  not  before  any  other  justice."  Of  these  courts 
Blackstone  says  :  "  These  Justices  in  Eyre  were  instituted  by 
"  Henry  II.  A.D.  1184,"  "  and  their  courts  were  formerly 
"  very  regularly  held ;  ^  but  the  last  Court  of  Justice  Seat  of 
"  any  note  was  that  holden  in  the  reign  of  Charles  I.  before 
"  the  Earl  of  Holland  ;  the  rigorous  proceedings  of  which  are 
"  reported  by  Sir  William  Jones.  After  the  Restoration 
"  another  was  held,  fro  formd  only,  before  the  Earl  of 
"  Oxford,  but  since  the  era  of  the  Revolution  in  1688,  the 
"'  forest  laws  have  fallen  into  total  disuse,  to  the  great  ad- 
"  vantage  of  the  subject." 

THE  WELSH   COURTS. 

So  far  I  have  considered  the  criminal  courts  of  England. 
The  same  system  now  prevails  in  Wales,  but  the  Welsh  courts 
have  a  history  of  their  own. 

It  consists  of  four  stages.  (1)  The  institutions  of  Edward  I. 
(2)  The  jurisdiction  of  the  Lords  Marchers.  (3)  The  insti- 
tutions of  Henry  VIII.  (4)  The  changes  made  in  the  reign 
of  William  IV. 

Edward  I.,  after  the  conquest  of  the  greater  part  of  Wales, 

passed  an  act  known   as  the  Statutum,  Wallice  (12  Edw.  1, 

1280),  which  is  one  of  the  most  remarkable  monuments  still 

remaining  of  the  methods  by  which  in  that  age  justice  was 

administered.     It  may  be  described  as  a  code  of  criminal  and 

revenue  procedure  prepared  specially  for  Wales,  and  may  be 

compared  to  the  codes  prepared  under  the  direction  of  Lord 

Lawrence  for  the  government  of  the  Punjab  on  its  annexation, 

^  Manwood,  p.  489. 

2  On  this,  see  Gardiner's  Fall  of  the  Mnnanhy,  i.  71,  and  referring  to  per- 
sonal government  of  Charles  I.,  ii.  73,  76,  172,  182. 


STATUTUM  WALLI^.  1 39 

or  to  the  regulations  which  having  been  already  enacted  for  Chap.  IV, 

Lower  Bengal  were  re-enacted  for  what  are  now  known  as       

the  North-West  Provinces  upon  their  conquest  in  1801.  To 
"borrow  the  language  of  Indian  administration,  the  Statutum 
Wallice  converted  a  considerable  part  of  Wales  into  a  regu- 
lation province.  It  recites  that  Divine  Providence  has  an- 
nexed and  united  the  land  of  Wales,  which  had  previously 
been  subject  to  the  King  by  feudal  law,  to  the  Crown  of 
England  as  part  of  the  body  of  the  same.  It  also  recites 
that  Edward  had  inquired  into  the  laws  and  customs  of 
Wales,  allowed  some,  amended  others,  and  made  some 
additions,  and  it  then  goes  on  to  enact  that  they  are  to  be 
held  and  observed  in  the  manner  under  written. 

The  statute  lays  down  a  complete  scheme  of  government 
setting  forth  first  the  divisions  of  the  country,  then  the 
powers  of  the  courts  and  officers,  especially  the  sheriffs  and 
coroners  by  whom  it  was  to  be  governed,  and  then  giving 
the  forms  of  writs  in  all  actions  to  be  brought.  This  last  enact- 
ment of  course  introduced  into  Wales  the  English  Common 
Law  of  which  the  writs  in  question  are  the  foundation. 

The  part  of  this  memorable  document  which  concerns  the 
present  purpose  is  that  which  relates  to  the  organisation  of 
the  Courts.  It  provides  as  follows :  "  We  provide  and  decree 
"  that  the  justice  of  Snowdon  (Snaudon)  shall  have  the 
"  custody  and  rule  of  our  royal  peace  in  Snowdon  and  our 
"  adjacent  lands  of  Wales,  and  shall  administer  justice  to  all 
^'  according  to  the  royal  original  writs,  laws  and  customs 
"  under  written." 

"  We  also  will  and  ordain  that  there  be  sheriffs,  coroners 
"  and  bailiffs  of  ^  commotes  in  Snowdon  and  in  our  lands  in 
"  those  parts."  It  then  proceeds  to  provide  that  there  shall 
be  a  sheriff  for  each  of  six  counties,  namely,  Anglesea, 
Caernarvon,  Merioneth,  Flint,  Caermarthen,  and  Cardigan. 

The  effect  of  this  was  to  introduce  a  justice,  sheriffs, 
coroners,  and  courts  similar  to  those  of  England  into  the 
six  counties  above  named.  The  remainder  of  Wales,  which 
till  the  reign  of  Henry  VIII.  included  Monmouthshire  and 

^  The  commote  was  a  division  like  a  hundred.     It  was  a  suh-division  of  a 
cantred. 


140  LORDS  MAECHERS. 

Chap.  IV    part  of  the  present  counties  of  Shropshire,  Hereford,  and 
Gloucester,  was  then,  and  till  the  reign  of  Henry  VIII.,  con- 
tinued to  be,  divided  into  districts  called  "  Lordships  Marchers," 
which  were  subject  to  the  authority  of  hereditary  rulers  called 
Lords  Marchers.     These  Lords  Marchers  exercised  what  can 
hardly  be  described  otherwise  than  as  a  despotic  authority ; 
though  by  28  Edw.  3,  c.  2  (1354)  it  was  "accorded  and  es- 
"  tablished  that  all  the  Lords  of  the  Marches  of  Wales  shall  be 
"  perpetually  attending  and  annexed  to  the  Crown  of  England, 
"  as  they  and  their  ancestors  have  been  at  all  times  past,  and 
"  not  to  the  principality  of  Wales,  in  whose  hands  soever  the 
"  principality  be  or  hereafter  shall  be."  ^  Lord  Herbert  of  Cher- 
bury  in  his  history  of  Henry  VIII.  gives  the  following  account 
of  the  Lordship  Marchers :  "  As  the  Kings  of  England  hereto- 
"  fore  had  many  times  brought  armies  to  conquer  that  country 
"  (Wales),  defended  both  by  mountains  and  stout  people, 
"  without  yet  reducing  them  to  a  final  and  entire  obedience, 
"so  they  resolved  at  last  to  give  all  that  could  be  gained 
"there  to  those  who   would   attempt   it,  whereupon   many 
"  valiant  and  able  noblemen  and  gentlemen  won  much  land 
"  from  the  Welsh,  which  as  gotten  by  force  was  by  permission 
"of  the  kings  then  reigning  held  for  divers  ages  in  that 
"  absolute  manner  as  Jura  Regalia  were  exercised  in  them  by 
"the  conquerors.     Yet  in  those  parts  which  were  gotten  at 
"the  King's  only  charge  (being  not  a  few)  a  more  regular 
"law  was   observed.     Howsoever,  the  general   government 
"  was  not  only  severe,  but  various  in  many  parts ;  insomuch, 
"that  in  about  some  ^141  Lordships  Marchers  which  were 
"  now   gotten  many   strange  and  discrepant  customs   were 
"  practised."     Lord  Herbert's  statement  is  no  doubt  true  as 
to  parts  of  South  Wales,  especially  the  counties  of  Pembroke 
and  Glamorgan,  but  a  large  part  of  the  Lordships  Marchers 
must  have  been  in  the  hands  of  native  Welsh  princes,  who 
had  never  been  conquered  at  all,  but  represented  the  original 
rulers  of  the  country. 

A  full  account  of  the  jurisdiction  of  the  Lords  Marchers 

1  P.  369.  When  I  was  at  the  Bar  I  was  once  asked  to  advise  upon  certain 
claims  of  a  gentleman  of  very  ancient  family,  who  believed  himsefr  to  be  the 
last  Lord  Marcher. 

*  In  27  Hen.  8,  c.  26,  137  lordships  are  enumerated. 


LOEDSHIPS    MAjRCHEES.  I4I 

is  to  be  found  in  ^Coke'3  entries.  In  the  precedents  of  Chap.  IV. 
proceedings  by  way  of  Quo  warranto  he  gives  at  length  ~ — 
the  pleadings  in  a  proceeding  on  a  Quo  warranto  in  the 
42  Eliz.  (1600)  against  Thomas  Cornewall  of  Burford,  in 
Shropshire.  The  information  alleges  that  Burford  without 
warrant  uses  in  the  manor  of  Stapleton  and  Lugharneys  in 
the  county  of  Hereford,  the  franchise  of  taking  the  goods 
and  chattels  of  felons. 

To  this  the  defendant  pleaded  that  before  and  up  to 
the  statute  of  27  Hen.  8,  and  from  the  time  of  legal 
memory  2  Wales  was  governed  by  Welsh  laws  and  Welsh 
officers  in  all  matters,  whether  relating  to  lands  and  tenements, 
or  to  life  and  limb,  and  all  matters  and  things  whatever. 
Also  at  the  passing  of  the  statute  of  27  Hen.  8,  divers 
persons  were  seized  of  divers  "several  lordships,  called  in 
"  English  Lordships  Marchers  in  Wales,  and  held  in  them 
"^  royal  laws  and  jurisdiction  as  well  of  life  and  limb  as  of 
"  lands  and  tenements  and  all  other  things,  and  they  could 
"  pardon  and  had  full  and  free  power  ...  of  pardoning  all 
"treasons,  felonies,  and  other  offences  whatever,  and  also 
"  to  do  and  execute  all  things  whatever  within  their  separate 
"  lordships  aforesaid,  as  freely  and  in  as  ample  a  manner  and 
"  form  as  the  King  may  in  his  aforesaid  dominions ;  and  that 
"moreover  the  King  ought  not  and  could  not  interfere  in 
"  any  of  the  said  Lordships  belonging  to  any  other  person  for 
"  the  execution  of  justice."  The  plea  further  states  that  the 
Lords  Marchers  were  entitled  to  all  forfeitures,  goods  of 
felons,  deodands,  &c.,  according  to  the  laws  and  customs  of 
Wales  without  any  grant.  It  was  further  pleaded  that  up  to 
the  date  of  the  statute  the  King's  writ  did  not  run  in  the 
Lordships  Marchers.  The  plea  then  goes  on  to  aver  that 
the  manors  in  question  were  Lordships  Marchers,  to  which 
Cornewall  and  his  ancestors  had  been  entitled  at  the  passing 
of  the   statute   27  Hen.   8,    c.    26,    and   that  neither  that 

'  Coke's  Entries,  549-551,  No.  9,  Quo  Warramto. 

"  "  Dominium  Wallise  ac  omnia  dominia  .  .  .  ejusdem  fuemnt  ordinat'  et 
"  gubernat '  per  "Wallicas  leges  .  .  .  ac  omnes  Principes  Walliae  inde  seisiti 
' '  existentes  tenuerunt  eadem  secundum ,  leges  Wallicas,  ac  usi  fuerunt  in 
"  eisdem  per  seperales  officiarios  suos  eorundem  dominiorum  leges  WaUicas 
"  eorundem  dominiorum  et  nuUas  Anglicanas  leges,"  &c. 

^  "  Eegales  leges  et  jurisdietiones." 


142  HENRY   VIII.'S   STATUTES. 

Chap.  IV.  statute,  nor  the  statute  of  Philip  and  Mary,  c.  15,  deprived 
him  of  the  particular  franchise  in  question,  but  confirmed  it 
to  him.  To  this  plea  the  Attorney-General  demurred,  thereby 
admitting  the  truth  of  its  averments.  Shortly,  the  pleadings 
came  to  this,  that  so  much  of  Wales  as  had  not  been  brought 
under  the  Statutum  Wallim  by  Edward  I.  continued  till  the 
27  Hen.  8  (1535)  to  be  governed  by  a  number  of  petty 
chiefs  called  Lords  Marchers — chiefs  who  might  be  compared 
to  the  small  Eajahs  to  whom  much  of  the  territory  of  the 
Punjab. and  the  North-West  Provinces  still  belongs. ' 

In  1535  and  1543  two  Acts  were  passed  by  Henry  VIII. 
(27  Hen.  8,  c.  26,  concerning  the  laws  to  be  used  in  Wales, 
and  34  &  35  Hen.  8,  c.  26,  an  Act  for  certain  ordinances  in 
the  King's  dominion  and  principality  of  Wales)  which  were 
the  complements  of  the  Statutum  Walliae,  and  introduced 
the  English  system  for  the  administration  of  justice  with 
some  slight  modifications  into  every  part  of  Wales.  The 
first  of  these  Acts  (27  Hen.  8,  c.  26)  abolishes  (s.  1)  all 
legal  distinctions  between  Welshmen  and  Englishmen,  and 
after  reciting  the  disorders  arising  from  the  Lordships 
Marchers  enacts  that  some  of  the  said  Lordships  shall  be 
annexed  to  adjacent  English  counties  and  others  to  adjacent 
Welsh  counties,  and  that  the  remainder  shall  be  formed  into 
five  new  counties,  namely,  Brecon,  Radnor,  Montgomery, 
Denbigh,  and  Monmouth,  the  first  four  of  which  are  to  be 
Welsh  counties  and  the  last  an  English  county.  The  Act 
then  proceeds  to  give  the  details  of  this  arrangement  (ss.  4-19 
inclusive).  It  provides  (s.  26)  for  a  commission  to  divide 
all  Wales  except  Anglesea,  Flint,  and  Carnarvon,  into  hun- 
dreds, and  (s.  37)  empowers  the  King  to  erect  such  Courts  of 
Justice  in  Wales  as  he  thinks  proper. 

The  second  Act  (34  &  35  Hen.  8,  c.  26,  A.D.  1543)  com- 

^  There  are  a  number  of  small  states  in  the  neighbourhood  of  Simla  which 
might  well  be  compared  to  Lordships  Marchers  in  point  of  size  and  importance, 
though  the  government  of  India  exercises  much  more  careful  supervision  over 
their  proceedings,  especially  in  the  matter  of  the  administration  of  justice,  than 
the  English  kings  from  Edward  I.  to  Henry  VIII.  exercised  over  the  Lordships 
Marchers.  See  Pwnjdb  Administration  Bsport,  1878-9,  p.  29,  and  Mr.  Lepel 
GriflSn's  OMefs  of  the  Punjab.  One  of  these  petty  chiefs,  the  Eajab  of 
Sirmur,  sent  200  men  to  the  war  in  Afghanistan,  and  many  others  offered 
contributions  in  money,  camels,  &c. 


WELSH  JUDGES.  143 

pletes  the  provisions  of  the  first.  ^  It  enacts  ,(s.  2)  that  Ghap.  IV. 
thenceforth  there  shall  be  twelve  shires  in  Wales,  whereof 
eight  (^Glamorgan,  Caermarthen,  ^ Pembroke,  Cardigan, 
Flint,  Caernarvon,  Anglesea,  and  Merioneth)  are  old,  and 
four  (Eadnor,  Brecknock,  Montgomery,  and  Denbigh)  were 
new,  the  latter  having  been  formed  out  of  such  of  the  Lord- 
ships Marchers  as  were  not  annexed  to  other  English  or 
Welsh  counties.  The  limitations  of  the  Hundreds  made 
under  commission  were  confirmed  (s.  4).  It  was  enacted 
that  there  should  be  great  sessions  to  be  called  "  the  King's 
Great  Sessions  in  Wales,"  held  twice  a  year  in  each  of  the 
twelve  shires,  as  follows : — 

The  Justice  of  Chester (I^^!''^^' 

/„   a)  -i  iiliut. 

^  '    ■''  (  Montgomery. 

« The  Justices  of  North  Wales     .     .       ffr'^'^'^ir- 
/     ij-N  -s  Merioneth. 

^  ■    '■  (.Anglesea. 

1  "And  forasmuch  as  there  are  many  and  divers  Lordship.s  Marchers  within 
"  the  said  country  or  dominion  of  "Wales  lying  between  the  shires  of  England, 
"  and  the  shires  of  the  said  country  and  dominion  of  Wales,  and  being  no 
"  parcel  of  any  other  shires  where  the  laws  and  due  correction  is  used  and  had, 
"  by  reason  whereof  hath  ensued  and  hath  been  practised,  perpetrated,  com- 
"  mitted,  and  done  manifold  and  divers  detestable  murders,  burnings  of 
"  houses,  robberies,  thefts,  trespasses,  &c.,  &c.,  the  offenders  making  their 
"  refuge  from  Lordship  to  Lordship  were  and  continued  without  punishment 
"  or  correction,"  &c.  (s.  3.) 

^  These  shires  are  not  mentioned  in  the  Statutum  Walliae.  The  county  of 
Glamorgan  is  the  most  ancient  county  in  Wales.  One  of  the  companions  of 
William  the  Conqueror,  Fitz  Hamon,  originally  conquered  the  district  and 
established  there  a  Lordship  Marcher  which  was  a  county  iu  itself,  containing 
eighteen  castles  and  thirty-six  and  a  half  knights  fees.  He  had  his  own 
Chancery  and  Exchequer  in  Cardiff  Castle,  and  there  were  eleven  other  Lord- 
ships Marchers,  each  of  which  was  a  member  of  the  county. 

As  to  Pembrokeshire  William  the  Conqueror  authorised  Arnulf  Montgomery, 
son  of  the  Earl  of  Shrewsbury,  to  conquer  what  he  could,  and  he  conquered 
Pembroke  and  some  of  the  neighbouring  districts.  "Neither  he  nor  his 
"  immediate  successors  appear  to  have  held  their  possessions  with  such  ample 
"  powers  as  were  exercised  by  the  Lords  Marcher  for  the  King's  writs  issuing 
"  out  of  the  courts  at  Westminster  were  current  in  the  conquered  territory  of 
"  Pembroke."  Parts  of  Pembroke  (in  particular  Tenby  and  Haverfordwest) 
were  colonised  hy  Flemings  under  Henry  I.  In  1109  Gilbert  de  Clare,  sur- 
named  Stronghow,  was  created  Earl  of  Pembroke  by  Henry  I.,  and  in  1138 
he  was  invested  with  all  the  powers  of  a  count  palatine  over  the  country  from 
which  he  derived  his  title,  so  that  Pembroke  became  a  county  palatine.  Its 
character  as  such,  however,  seems  to  have  been  taken  away  by  27  Hen.  8, 
c.  26,  s,  37,  which  added  certain  towns  and  districts  to  it.  See  Lewis's  Topo- 
graphical Dictionary  of  Wales,  articles  "  Glamorgan"  and  "Pembroke,"  and 
as  to  Pembroke,  ith  Inst.  22. 

'  These  I  suppose  had  replaced  the  "justice  of  Snowdon,"  mentioned  iu 
the  Statutum  Wallias. 


^44  CHANGES  IN    183O. 

Chap.  IV.       A  person  learned  in  the  law  of  the  f  "Radnor 

realm  of  England  to  be  appointed  by  J  Brecknock 

the  King  to  be  Justice  of  these  shires  j  Qioni ore-an 

(s.  8).    '  (.  s     • 

.     j^,  ,  C  Caermarthen. 

Another  such  person J  Pembroke. 

^^-  ^'-  (  Cardigan. 

The  jurisdiction  of  the  Justices  was  to  include  all  matters 
civil  and  criminal  which  were  disposed  of  by  the  English 
Superior  Courts  (ss.  11-52),  and  there  were  in  addition  to  be 
Courts  of  Quarter  Sessions,  held  by  Justices  of  the  Peace, 
who  were  to  be  appointed  in  the  same  manner  as  in  England 
(ss.  53-60),  and  Sheriff's  tourns  (s.  75)  and  other  County  and 
Hundred  Courts  as  in  England  (s.  73).  ^By  s.  119  the  King 
received  an  unlimited  power  of  legislation  for  Wales.  This 
section,  though  afterwards  alleged  to  have  been  personal  to 
the  King  himself,  whose  successors  are  not  mentioned  in  the 
Act,  was  repealed  by  21  Jas.  1,  c.  10,  s.  4. 

Of  this  statute  ^Barrington  (himself  a  Welsh  judge) 
observes  that  it  was  so  well  drawn  "  that  no  one  clause  of  it 
"  has  ever  occasioned  a  doubt  or  required  an  explanation," 
though  Serjeant  Runnington  points  out  a  few  limitations  upon 
this  remark.  At  all  events  the  Courts  established  by  this 
statute  continued  to  administer  justice  in  Wales  till  the  year 
1830,  when  the  Welsh  Courts  and  Judges  and  the  Palatine 
Jurisdiction  of  the  County  of  Chester  were  abohshed.  An 
additional  judge  was  added  to  each  of  the  three  superior 
Courts  at  Westminster,  and  it  was  provided  that  their  juris- 
diction should  be  extended  to  Wales  and  Chester,  and  that 
assizes  should  be  held  there  in  the  same  manner  as  in  other 
parts  of  the  country.* 

^  Compare  the  power  vested  by  various  Acts  of  the  Government  of  India 
in  the  Governor- General,  and  even  in  some  cases  in  Lieutenant-Governors  to 
declare  what  laws  should  be  in  force  in  particular  non-regulation  districts. 
The  validity  of  such  legislation  has  been  doubted,  but  was  affirmed  in  E  •« 
Burah  L.  R.  5  Ind.  App.  178. 

"  See  Hale's  History  of  the  Common  Law,  by  Runnington  (ed.  1779).  p.  203, 
quoting  Barrington's  observations,  324-329. 

3  11  Geo.  4,  and  1  "Will.  4,  c.  70,  ss.  1  and  2,  and  ss.  13-34. 


EXTRAORDINARY  CRIMINAL   COURTS.  145 


CHAPTER  V. 

1  THE  CRIMINAL  JURISDICTION    OF   PARLIAMENT  AND   OF  THE 
COURT   OF   THE   LORD   HIGH   STEWARD. 

Having  described  the  history  of  the  courts  in  which  the  Chap.  v. 
commou  routine  of  criminal  justice  is  carried  on,  I  come 
to  the  courts  which  are  called  into  activity  only  on 
rare  occasions  and  for  special  purposes.  These  are  the 
High  Court  of  Parliament  and  the  Court  of  the  Lord  High 
Steward. 

The  criminal  jurisdiction  of  Parliament  is  probably  derived 
from  the  powers  of  the  Curia  Regis.  Speaking  of  the  reign 
of  John  Mr.  Stubbs  says,  ^"As  a  high  court  of  justice  they  had 
"  heard  the  complaints  of  the  king  against  individuals,  and 
"  had  accepted  and  ratified  his  judgments  against  high 
"  offenders."  Speaking  of  Henry  III.'s  time  he  says,  ^"  Their 
"  judicial  power  was  abridged  in  practice  by  the  strengthened 
"  organisation  of  the  royal  courts,  but  it  remained  in  full 
"  force  in  reference  to  high  offenders  and  causes  between 
"  great  men ;  the  growth  of  the  privileges  of  baronage  gave 
"  to  the  national  council  as  an  assembly  of  barons  the 
•'  character  of  a  court  of  peers  for  the  trial  and  amercement 
"  of  their  fellows." 

The  character  of  the  judicial  functions  of  Parliament 
in  Edward  I.'s  reign  may  be  gathered  from  the  "Placita 
"coram  ipso  domino  rege  et  concilio  suo  in  Parliamento" 
printed  in  the  first  volume  of  the  Parliament  Rolls.  It 
is  not  however  my  object  to  enter  upon  this  subject  further 

1  Dig.  Crim.  Proe.  arts.  16-21.       '  Stubbs,  ii.  236,  237.      '  Stubbs,  ii.  37. 
VOL.    I.  L 


1 46  IMPEACHMENTS. 

Chap.v.    than  is  necessary  to  trace  the  history  of  the  present  law 
as  to  impeachments. 

That  law  may  be  stated  as  follows  : — 

1.  The  House  of  Lords  is  a  court  of  justice  in  which  peers 
may  be  tried  for  any  offence,  and  commoners  for  any  offence 
not  being  '  treason  or  felony  upon  an  accusation  or  impeach- 
ment (impetitio)  by  the  House  of  Commons,  which  is  the  grand 
jury  of  the  whole  nation. 

2.  When  such  an  impeachment  is  once  made  it  is  not 
abated  either  by  a  prorogation  or  by  a  dissolution  of  Parlia- 
ment, but  must .  go  •  on  from  session  to  session  and  from 
parliament  to  parliament  till  it  is  determined. 

3.  A  pardon  by  the  Crown  cannot  be  pleaded  in  bar  of 
an  impeachment. 

This  is  the  net  result  of  a  long  process,  the  nature  of 
which  can  be  understood  only  by  a  study  of  the  judicial 
proceedings  of  successive  parliaments. 

The  earliest  case  to  be  referred  to  is  one  which  perhaps 
hardly  deserves  the  name  of  a  parliamentary  proceeding  at 
all.  This  was  the  trial  of  David  the  brother  of  Llewellyn 
for  treason  against  Edward  I.  .  The  trial  took  place  at 
Shrewsbury  at  a  sort  of  parliament  which  met  Sept.  30, 1283. 
^ "  The  sheriff  of  each  county  was  to  return  two  elected 
"  knights,  and  the  governing  bodies  of  twenty  cities  and 
"  boroughs  were  to  return  two  representatives  for  each. 
"  Eleven  earls,  ninety-nine  barons,  and  nineteen  other  men 
"  of  note,  judges,  councillors,  and  constables  of  castles,  were 
"  summoned  by  special  writ."  "  At  Shrewsbury  accordingly 
"  David  was  tried,  condemned,  and  executed ;  his  judges  were 
"  a  body  chosen  from  the  justices  of  the  Curia  Regis  under 
"  John  de  Vaux :  the  assembled  baronage  watched  the  trial  as 
"  his  peers,  and  the  Commons  must  be  supposed  to  have 
"  given  a  moral  weight  to  the  proceedings." 

A  few  years  later,  21  &  22  Edw.  1  (A.D.  1291),  a  prosecution 
occurred  which  is  recorded  in  the  Parliament  Rolls. 

^  The  Archbishop  of  York  was  "  coram  ipso  domino  rege  et 

^  There  may  be  some  doubt  as  to  treason.  See  note  in  8  St.  Tr.  236,  in 
FitzHarris's  case.  2  j  stubbs,  116. 

3  1  Rot.  Par.  120.  The  archbishop  denied  the  purchase  of  the  debt,  but 
admitted  that  its  existence  came  to  his  knowledge  wlifn  he  visited  a  "monastery 


EARLY   IMPEACHMENTS.  147 

"  consilio  suo  arrenatus  "  for  buying  a  debt  due  to  a  Jew  who  Chap.  v. 
had  been  banished  and  whose  debts  had  been  forfeited  to  the 
king.  In  33  Edw.  1  (a.d.  1304)  Nicholas  de  Segrave  was 
accused  in  parliament  by  the  king  of  having  brought  an 
accusation  against  John  Crumbwell  whilst  both  were  serving 
in  the  army  against  the  Scotch,  of  having  waged  battle 
against  Crumbwell,  of  having  afterwards  "  adjourned  "  Crumbs 
well  before  the  King  of  France,  and  of  having  gone  to  France 
to  prosecute  Crumbwell  leaving,  for  that  purpose,  the  king's 
army  whilst  still  in  danger  and  against  the  king's  express 
command,  thereby  "subjiciens  et  submittens  dominium 
"  regis  et  regni  -Anglise  subjicioni  domini  regis  Francise." 
To  this  charge  Segrave  pleaded  guilty,  and  the  king 
required  the  advice  of  parliament  or  rather  of  his  great 
Council  ("  volens  habere  avisamentum  Comitum  Baronum 
"  Magnatum  et  aliorum  de  Consilio  suo ")  as  to  the  punish- 
ment to  be  inflicted.  They  replied,  "quod  hujus  modi 
"  factum  meretur  pcenam  amissionis  vitse,'  &c."  Segrave 
however  was  pardoned  on  the  terms  of  giving  security 
to  go  to  prison  ^"ubi  et  quando  et  quotiens  dominus  rex 
"  voluerit." 

In  4  Edw.  3  (1350)  a  remarkable  though  anomalous 
proceeding  took  place  in  regard  to  Sir  Thomas  Berkeley, 
charged  with  the  murder  of  Edward  II.  ^  The  record  throws 
light  not  only  on  the  functions  of  parliament  but  on  its 
procedure  and  on  the  early  form  of  trial  by  jury.  It  is  as 
follows :  "  Sir  Thomas  de  Berkeley  came  before  the  king  in 
"  full    parliament    and    being    asked "    (allocutus    de    hoc) 

at  Burlington,  from  which  it  was  due,  and  that  he  told  the  prior  and  convent, 
"  Quod  pecuniam  illam  sana  conscientia  retinere  non  possent,  et  quod  sic 
"  facerent  quod  animas  suas  salvarent,  scd  quod  nunquam  eis  injunxit  quod 
"  pecuniam  illam  sibi  aut  alii  nomine  ]Dredioti  Judei  solverent."  He  further 
owned  that  he  had  seen  the  Jew  at  Paris,  who  begged  him  for  God's  sake  to 
get  him  his  money.  The  archbishop  was  amerced  because  he  concealed  the 
existence  of  the  debt,  and  because  "  contra  fidem  quam  Regi  tenetur  injunxit 
"  prffifato  Priori  et  conventui  quod  animas  suas  salvarent  ;  quod  tantum 
"  valuit  quantum  si  dixisset  quod  Judeo  satisfacerent."  This  seems  to  admit 
that  the  proclamation  which  required  the  debtors  of  Jews  to  pay  their  debts 
to  the  king  could  be  obeyed  only  at  some  risk  to  the  debtor's  soul. 

1  The  "  &c."  probably  means  forfeiture. 

'  1  Jtot.  Par.  172,  In  the  pleadings  mention  is  made  of  "Nicholas  de 
"  Warrewyk  qui  sequitur  pro  ipso  domino  rege,"  the  style  of  the  Attoniey- 
General  of  later  times.  '  2  Rot.  Par.  57. 

L   2 


148  IMPEACHMENTS   UNDER   EDWARD   III. 

Chap.  V.  how  he  could  acquit  himself  of  the  death  of  Edward  II. 
who  had  been  delivered  to  hia  custody  and  to  that  of  John 
Maltravers,  and  had  been  murdered  in  the  castle  of 
Berkeley  ?  he  said  he  did  not  consent  to  it  or  know  of 
it  till  this  parliament.  He  was  asked  how  he  could  excuse 
himself,  seeing  that  the  castle  was  his,  and  the  king  was 
delivered  to  him  for  safe  custody  ?  He  replied  that  the 
castle  was  his,  and  that  the  king  was  delivered  to  him 
and  Maltravers  for  safe  custody,  but  that  at  the  time  of 
the  murder  he  was  lying  so  ill  at  Bradley  that  he  could 
remember  nothing  (quod  nichil  ei  currebat  memorice).  He 
was  then  asked  how  he  could  excuse  himself  when  he 
had  guards  and  officers  under  him  ?  He  replied  that  he 
put  under  him  guards  and  officers  in  whom  he  trusted 
as  he  did  in  himself,  and  that  they  with  Maltravers  had 
charge  of  the  king,  and  that  he  was  in  no  way  guilty  of 
the  death  of  the  king  or  of  being  accessory  to  or  procuring 
it.  Then  follows,  "  et  de  hoc  de  bene  et  malo  ponit  se  super 
"  patriam.  Ideo  venerunt  inde  jurat'  coram  domino  rege 
"  in  parliamento  suo."  Then  follow  the  jurors'  names,  and 
their  finding,  "  Dicunt  quod  predictus  Thomas  de  Berkle 
"  in  nuUo  est  culpabilis  "...  .  "  et  dicunt  quod  tempore 
"  mortis  ejusdetn  Domini  Edwardi  Regis  patris  domini  Regis 
"  nunc  fuit  ipse  tali  infirmitate  gravatus  apud  Bradeleye  extra 
"  castrum  suum  predictum  quod  de  vitS,  ejus  desperabatur. 
"  Ideo  idem  Thomas  inde  quietus." 

The  record  implies,  First  that  in  this  instance  at  least  jurors 
were  introduced  into  parliament.  Next  that  the  accused 
was  questioned  till  a  specific  defence  resting  on  a  particular 
alleged  fact  was  set  up  by  him ;  and  lastly,  that  the  jurors 
gave  their  verdict  on  the  special  defence  as  well  as  generally 
on  his  guilt  or  innocence. 

Towards  the  end  of  the  reign  of  Edward  III.  in  what  was 
known  as  the  Good  Parliament  (50  Edw.  3,  A.D.  1376)  oc- 
curred a  celebrated  series  of  proceedings  which  are  regarded 
both  by  Hallam  and  by  Mr.  Stubbs  as  the  earliest  impeach- 
ment in  the  full  sense  of  the  word  known  in  English 
history.  This  is  no  doubt  true  if  by  an  impeachment  is 
meant  a  trial  by  the  Lords  upon  an  accusation  made  by  the 


IMPEACHMENTS   UNDER  EDWARD   III.  149 

Commons,  though,  as  the  cases  already  referred  to  show,  Chap.  V. 
criminal  proceedings  in  parliament  were  of  much  greater 
antiquity.  The  persons  impeached  were  Eichard  Lyons, 
WilKam  Ellis  of  Yarmouth  and  John  Peake  of  London 
(the  agents  and  accomplices  of  Lyons)  William  Lord  Latimer 
and  John  Lord  Neville.  ^AU  of  these  were  charged  with 
different  kinds  of  frauds  and  malpractices  connected  witli 
the  revenue.  There  is  a  petition  in  the  Parliament  Roll 
of  this  parliament  which  throws  some  light  on  the  character  of 
these  proceedings  and  to  some  extent  anticipates  points  long 
afterwards  decided.  ^  The  Commons  prayed  that  all  articles  of 
impeachment  with  the  matters  put  forward  by  the  Commons 
which  had  not  then  been  tried  for  want  of  evidence  {par 
ddfaut  de  prove)  or  any  other  cause  should  be  heard  and 
determined  by  commission  by  the  judges  and  other  lords  in  , 
London  and  other  suitable  towns  {autres  lieux  lusoignables). 
The  king  promised  to  assign  suitable  justices. 

^  In  the  following  parliament  the  result  of  one  proceeding 
under  this  clause  is  recorded.  A  petition  sets  forth  that 
Hugh  Fastolf  had  "  by  malice  and  hatred  of  some  of  his 
"  neighbours  both  by  bills  previously  delivered  and  by  clamour 
"  made  at  the  end  of  the  last  parliament "  been  impeached  for 
various  oppressions  and  misdeeds,  that  a  commission  of  Oyer 
and  Terminer  had  accordingly  been  sent  to  Suffolk  and 
Norfolk  "  et  les  copies  des  ditz  Billes  issint  baillez  en 
"  Parlement  si  furent  envoiez  a  mesmes  les  justices  souz 
"  le  grant  seal."  Fastolf  was  tried  by  no  less  than  seventeen 
inquests  and  acquitted  by  all  of  them. 

This  shows  that  in  Edward  IIL's  time  the  theory  of  im- 
peachment as  afterwards  understood  was  far  from  complete. 
It  never  would  have  occurred  to  the  parliament  which  im- 
peached Warren  Hastings  that  at  the  end  of  the  session  the 
case  might  be  sent  before  a  special  commission  and  tried  by 
a  jury. 

In  the  reign  of  Eichard  II.,  criminal  proceedings  in 
Parliament    were   frequent  and  important.     Thus,    in  the 


1  2  Rot.  Par.  323—326,  and  329.  "  Ih.  385. 

3  51  Edw.  3  (1376—7),  2  Rot,  Par.  376. 


15*3  CASE   OP   ALICE   PEERERS. 

Chap.  V.  beginning  of  the  reign  '  several  persons  were  impeached  for 
losing  towns  and  other  military  misconduct  in  France.  ^  In 
1386  Michael  de  la  Pole,  Lord  Chancellor,  was  impeached 
for  misconduct  in  his  office,  and  judgment  was  given  that 
certain  grants  made  to  him  should  be  set  aside,  and  charters 
and  letters  patent  declared  void.  There  is  nothing  on  the 
face  of  any  of  these  proceedings  which  calls  for  special 
remark.  The  accusations  are  specific,  and  so  are  the 
answers,  which  sometimes  go  into  great  detail ;  and  it 
appears  that  in  particular  cases  witnesses  were  called  and 
fully  examined. 

The  most  remarkable  instance  of  this  is  to  be  found  in 
the  case  of  ^  Alice  Ferrers,  who  was  accused  on  the  part  of 
the  King,  and  not,  as  far  as  appears,  by  the  Commons,  for 
breaking  an  ordinance  by  which  women  in  general  and  she 
in  particular  had  been  forbidden  to  do  business  for  hire  and 
by  way  of  maintenance  in  the  King's  Court.  The  charge  was 
that  she  nevertheless  had  persuaded  Edward  III.  to  counter- 
mand the  appointment  of  Sir  Nicholas  Dagworth  to  go  on 
a  certain  commission  to  Ireland,  and  had  persuaded  him 
to  pardon  Richard  Lyons  as  to  part  of  ,his  punishment. 
Dagworth  was  to  go  to  Ireland  to  inquire  into  the  official 
conduct  there  of  William  of  Windsor  the  husband  of 
Alice  Ferrers,  and  she  objected  to  this  on  the  ground  that 
Dagworth  was  Windsor's  enemy.  Many  witnesses  were 
examined  on  the  subject,  one  of  whom  said,  "  he  never  heard 
"  Dame  Alice  speak  to  the  King  on  the  subject,  but  he  had 
"  heard  her  greatly  complain  in  the  King's  palace  and  say 
"  that  it  was  neither  law  nor  reason  that  Dagworth,  who  was 
"  William  de  Windsor's  enemy,  should  go  to  Ireland  and  in- 
"  quire  and  do  justice  against  him."  Twenty  witnesses  in 
all  were  examined  on  the  occasion,  and  the  principal  de- 
positions are  entered  on  the  Roll. 

1  Case  of  John  de  Goni'jnys  and  William  Weston,  3  Rot.  Par.  10 — 12 
(1377) ;  Cressinghain  and  SpykesWorth,  p.  153  (1383)  ;  Bishop  of  Norwich, 
p.  153  (1383)  ;  Elmham  and  others,  p.  156  (1383). 

^  8  Rot.  Par.  218—219. 

^  lb.  12.  "  Alice  Ferrers  faist  fait  venir  en  mesme  le  Parlement  devant  les 
"  prelates  et  seigneurs  pur  y  repondre  snr  certains  choses  quelles  pur  lors 
"  serroient  surmises  en  vers  elle  de  par  le  lloi.  Monsr.  Richard  la  Scrop 
"  Chivaler  seneschal  de  rhosteliife  Sf  le  Rji  y  rehercea  en  Parlement,"  &c. 


APPEALS  UNDER  RICHARD  II.  I5I 

The  most  remarkable  feature  in  the  criminal  proceedings  Chap.  V, 
in  parliament  in  the  time  of  Eichard  II.  is  that  it  was  the 
regular  course  for  private  persons,  even  persons  who  were 
not  members  of  parliament,  to  bring  accusations  of  a  criminal 
nature  in  parliament,  upon  which  proceedings  were  had; 
i  Thus,  for  instance,  in  1384,  one  John  Cavendish,  a  fishmonger 
of  London,  impeached  Michael  de  la  Pole,  the  Chancellor,  for 
taking  a  bribe,  namely,  £40,  three  yards  of  scarlet  cloth, 
worth  thirty-two  shillings,  given  to  Otter  the  Chancellor's 
clerk,  and  a  quantity  of  herring,  sturgeon,  and  other  fish, 
delivered  free  at  his  house.  The  Chancellor  swore  that  he 
was  absolutely  innocent,  that  whatever  took  place  between 
Cavendish  and  Otter  was  without  his  knowledge,  and  that 
he  ordered  the  fish  to  be  paid  for  as  soon  as  he  heard 
they  were  delivered.  After  examining  witnesses  the  Lords 
acquitted  the  Chancellor,  and  Cavendish  was  convicted 
of  defamation. 

"  So,  in  1381,  Olyvedon  brought  a  bill  of  appeal  or  ac- 
cusation in  Parliament  against  Cogan  for  a  riot  at  Bridge- 
water,  and  for  forcing  the  master  of  the  Hospital  of  St.  John 
there  to  pay  money  and  execute  deeds.  The  bill  concludes 
by  saying  that  if  Cogan  denies  the  charge  Clyvedon  is  ready 
to  prove  it  by  his  body  according  to  the  law  of  arms  or  as  the 
court  pleases,  otherwise  than  by  jury  (sinoun  per  verdit  des 
jurrours)  "  for  he  says,  the  said  William  (Cogan)  is  rich  and 
"  he  poor,  whereby  he  could  never  make  a  jury  go  against 
"  the  said  William  although  his  cause  is  as  true  as  that  God 
"  is  in  heaven." 

Cogan  said  he  would  put  himself  on  a  jury,  and  the 
parties  were  left  to  the  course  of  the  common  law. 

These  cases  throw  some  light  on  the  memorable  pro- 
ceedings which  took  place  in  the  later  part  of  the  reign  of 
Eichard  II.,  and  wh^ch  appear  not  only  to  have  caused  his 
deposition,  but  to  have  established  the  law  of  impeachment 
on  its  present  basis.     I  refer  to  the  three  sets  of  "appeals" 

^  3  Eof.  Par.  168.  "Johan  Cavendish  de  Londves  pessoner  soi  pleignast 
"  en  le  Parlement  premerement  devant  la  Coe  en  lour  assemble  en  presence 
"  d'auouns  Prelate  et  Seignrs  temporelx  illocqoes  lors  estant  et  puis  apres 
"  devant  tousles  Prelatz  et  Seignfs  esteantz  en  ce  Parlement." 

2  lb.  106.  -      .; 


152  CASE   OF  BICHABD   II.'S  MINISTERS. 

Chap.  V.    or  accusations  brought  against  each  other  by  the  ministers 
of  Richard, II. 

iThe  first  set  of  appeals  took  place  in  1387-8,  when  the 
Duke  of  Gloucester  (the  King's  uncle)  and  several  other 
"  lords  appellants  "  accused  the  Archbishop  of  York,  Robert 
de  Vere  Duke  of  Ireland,  the  Earl  of  Suffolk,  Tressilian 
Chief  Justice,  and  Sir  Nicholas  Breraber,  Lord  Mayor  of 
London  of  high  treason.  The  substance  of  the  charge 
against  them  was  that  they  had  led  Richard  II.  to  misgovern 
in  various  ways,  and  in  particular  that  they  had  induced  him 
to  resist  or  evade  an  act  passed  in  1386  which  practically 
put  the  Royal  Power  in  commission,  and  that  they  had  pro- 
cured an  opinion  from  five  judges  and  a  serjeant-at-law  that 
the  commission  so  issued  was  void,  and  that  those  who  pro- 
cured it  were  liable  to  be  punished  as  traitors.  This  was 
elaborated  into  thirty-nine  charges.  ^  The  king  referred  the 
charges  "  to  the  judges,  serjeants,  and  other  sages  of  the  law 
"  of  the  realm"  (i.e.  of  the  common  law)  "and  also  to  the 
"  sages  of  the  civil  law,  who  were  charged  by  the  king 
"  to  give  their  opinion  to  the  Lords  of  Parliament,  to 
"  proceed  duly  in  the  cause  of  the  said  appeal.  The  said 
"  judges,  Serjeants,  and  sages  of  the  common  law  and  also  of 
"  the  civil  law  took  the  matter  into  consideration,  and  avowed 
"  to  the  Lords  of  Parliament  that  they  had  seen  and  heard 
"  the  tenor  of  the  appeal,  and  that  it  was  not  made  ac- 
"  cording  to  the  requisitions  of  either  law.  Upon  which  the 
■"  Lords  of  Parliament  considered  the  matter,  and  with  the 
"  assent  of  the  king,  and  by  their  common  assent,  it  was 
■"  declared  that  in  so  high  a  crime  as  is  alleged  in  this  appeal 
"  which  touches  the  person  of  our  lord  the  king  and  the 
"  state  of  his  whole  realm,  and  which  is  said  to  be  committed 
■"  by  peers  of  the  realm  and  others,  the  cause  must  not  be 
"  decided  elsewhere  than  in  parliament,  nor  by  any  other 
"  law  than  the  law  and  course  of  parliament,  and  that  it 
*"  appertains  to  the  Lords  of  Parliament  and  to  their  franchise 

^  3  Rot.  Par.  229—244. 

'  P.  236.  This  passage  is  quoted  by  Mr.  Stubbs.  I  think  he  overlooks 
tlie  opposition  between  the  common  and  the  civil  or  Roman  law.  He  seems 
to  take  "civil  "  in  the  sense  of  ordinary  law  as  opposed  to  parliamentary 
privilege.     I  do  not  think  this  can  be  the  meaning  of  the  passage. 


SECOND    SET   OF   APPEALS    UNDER   RICHARD    II.  153 

"  and  liberty  by  the  ancient  custom  of  parliament  to  be  Chap.  v. 
"  judges  in  such  cases,  and  to  adjudge  them  with  the  king's 
"  assent.  And  that  so  it  shall  be  done  in  this  case  by  award 
"  of  parliament  because  this  realm  of  England  never  was  and 
"  it  is  not  the  intent  of  the  king  or  the  lords  that  it  ever 
"  should  be  ruled  or  governed  by  the  Civil  Law.  Moreover 
"  they  do  not  mean  to  rule  or  govern  so  great  a  case  as  this 
"  appeal,  which  as  aforesaid  is  not  to  be  tried  or  determined 
"  out  of  parliament,  by  the  course,  process  and  order  used  in 
"  any  inferior  court  or  place  in  the  realm,  which  courts  and 
"  places  are  only  to  execute  the  ancient  laws  and  customs  of 
"  the  realm  and  the  ordinances  and  establishments  of  par- 
"  lianient."  The  appeal  was  accordingly  held  good,  and 
fourteen  out  of  the  thirty-nine  charges  contained  in  it  were 
held  to  amount  to  treason.  The  appellees  were  convicted, 
and  some  executed  as  traitors,  and  others  banished  for  life 
and  deprived  of  their  property.  Other  persons  besides  the 
original  appellees  were  implicated  in  the  matter,  and  in 
some  cases  condemned  and  executed,  but  this  belongs  rather 
to  the  general  history  of  the  time  than  to  the  history  of  im- 
peachments. ^A  sum  of  £20,000  was  voted  to  the  lords 
appellants  for  their  costs  and  charged  on  the  subsidy  granted 
at  the  end  of  the  session. 

After  an  interval  of  ten  years,  the  king's  party  in  their 
turn,  appealed  or  accused  of  treason  by  "accroaching"  the 
royal  power,  the  Duke  of  Gloucester,  and  the  Earls  of 
Arundel  and  ^  Warwick.  The  Earl  of  Arundel  was  con- 
victed and  executed.  The  Duke  of  Gloucester  was  murdered 
at  Calais,  and  the  Earl  of  Warwick  was  tried  and  sentenced 
to  be  hung,  drawn,  and  quartered,  though  his  sentence  was 
changed  into  one  of  imprisonment  for  life  in  the  Isle  of  Man. 
The  principal  point  urged  against  him  was,  that  on  the 
trial  of  Sir  Simon  Burley  and  others,  who  were  appealed 
by  the  original  Lords  Appellants,  "  Warwick  with  others, 

^  Z  Mot.  Par.  245.  "Vint  inille  livers  de  meme  le  subside,  pur  lour 
"  oustages, travails  et  despenses  faites  a  devant  pur  I'onour  profit,  et  salvation 
"  de  Eoi  et  de  tout  le  roialme."  The  costs  were  principally  military,  as  the 
Lords  Appellant  had  raised  troops  to  support  their  cause.  See  Stubb.s,  Cons. 
Hist.  ii.  476 — 482,  494 — 497,  and  iii.  19,  20,  on  the  transactions  here  referred 
to.  =  lb.  Z11. 


154  APPEALS   UNDER  HENRY  IV. 

Chap.  V.  « made  the  king  come  to  a  secret  place  at  Westminster," 
and  there  forced  him  against  his  own  judgment  to  say  that 
Burley  was  guilty,  though  he  thought,  and  had  previously 
said,  he  was  not.  This  looks  as  if  on  these  trials,  at  all 
events,  the  king  personally  acted  as  one  of  the  judges. 

In  the  course  of  another  two  years,  Richard  was  deposed, 
and  in  the  first  parliament  of  Henry  IV.  (1399),  the  second 
set  of  appellants  '  were  impeached  by  the  Commons  for 
their  appeal.  They  were  accordingly  questioned  about  the 
appeals,  and  gave  answers  which  threw  light  on  the  nature 
of  the  proceeding.  They  all  said  that  they  acted  under 
compulsion,  and  one  of  them  (the  Earl  of  Gloucester) 
gave  a  lively  account  of  his  conduct.  He  said  that,  "  on 
"  St.  Oswald's  day,  as  the  late  king  sat  at  meat  in  the  great 
"  hall  of  Nottingham  Castle,  and  he,  the  Earl,  also  sat  at 
"  meat  at  a  side  table  in  the  same  hall,  the  late  king  sent 
"  him  a  message  to  get  up  and  come  to  him.  Thereupon  the 
"  Earl  went  to  his  room  in  the  keep  of  the  said  castle,  and 
"  put  on  a  habergeon  and  his  sword,  and  took  with  him 
"  about  six  men  (vadletz),  supposing  he  would  have  to  arrest 
"  some  one ;  and  when  he  came  outside  the  gate,  he  found 
"  there  the  other  appellants,  and  amongst  them  William  Le 
"  Scrop,  reading  the  bill  of  appeal,  the  greater  part  of  which 
"  was  read  before  he  came,  and  just  then  the  late  king  sent 
"  to  tell  them  to  come  on,  and  asked  why  they  waited  so 
"  long.  And  thus  came  the  name  of  the  Earl  of  Gloucester 
"  to  be  put  into  the  appeal,  but  he  heard  nothing  of  it  from 
"  any  person ;  but  for  fear  of  death,  he  durst  not  oppose  the 
"  orders  of  the  late  king  as  to  the  prosecution  of  the  appeal." 
Sir  William  Thyrning,  the  Lord  Chief  Justice,  made  a 
speech  which  is  entered  ^  in  the  Parliament  Rolls,  to  the 
effect  that  the  proceedings  of  the  appellants  had  been  so 
irregular,  that  the  common  law  had  made  no  provision 
for  them,  and   that  their  misdoings   must   accordingly   be 

1  3  Mot.  Par.  449.  "Les  Communes  du  Parlemeut  monstrerent  au 
"  Roy,"  &c. 

2  lb.  451.  It  is  in  English,  and  is  a  curious  specimen  of  the  transition 
.state  of  the  language.  "  The  Lords  .  .  .  deme  and  ajiiggen  and  decreeu 
"  that  the  Dukes  of  Aumarle,  Surr,  and  Exoestre,  that  bene  here  present 
"  lese  and  forgo  fro  hem  aud  her  heirs,"  &c. 


APPEALS   IN   PARLIAMENT  ABOLISHED.  155 

dealt  with  specially  by  the  king  in  parliament.     He  then    Chap.  V. 
declared  the  judgment  of  parliament  to  be,  that  they  should  " 

be  degraded  from  their  rank,  and  incur  other  forfeitures. 
These  proceedings  took  place  on  the  6th  October,  1399. 
}  On  the  3rd  November,  ^  the  Commons  by  a  petition, 
'■  showed  to  the  king,  that  judgments  in  parliament  belong 
"  only  to  the  king,  and  the  Lords,  and  not  to  the  Commons 
"  unless  the  king,  of  his  special  grace,  pleases  to  show  them 
"  the  judgment,"  (this  they  said)  "for  their  ease,  that  no 
"  record  should  be  made  in  parliament  against  the  Commons, 
"  that  they  are  or  shall  be  parties  to  any  judgments  given, 
"  or  to  be  given  afterwards  in  parliament.  To  which  it 
"  was  answered  by  the  Archbishop  of  Canterbury  by  com- 
"  mand  of  the  king,  that  the  Commons  are  petitioners  and 
"  demanders "  (plaintiffs  or  accusers),  "  and  that  the  king 
"  and  the  Lords  from  all  time  have  had,  and  still  have  by 
"  right  judgment  in  parliament  as  the  Commons  have  shown. 
'"  But  in  making  statutes,  and  granting  aids  and  subsidies 
"  and  such  things  for  the  common  profit  of  the  realm,  the 
"  king's  special  will  is  to  have  their  advice  and  consent ; 
"  and  this  order  is  to  be  observed  for  all  time  to  come." 

In  the  same  parliament  was  passed,  ^the  statute  1  Hen.  4, 
c.  14,  which  provides,  that  all  appeals  of  things  done  in  the 
realm,  shall  be  tried  and  determined  by  the  laws  of  the 
realm  {i.e.,  at  common  law),  that  all  appeals  of  things  done 
out  of  the  realm,  shall  be  tried  by  the  constable  and  mar- 
shal, and  "  that  no  appeals  be  from  henceforth  made,  or 
"  anywise  pursued  in  parliament  in  any  time  to  come." 

I  have  noticed  these  proceedings  in  detail  because  they 
throw  light  upon  the  manner  in  which  the  present  theory  of 
the  power  of  parliament  as  to  impeachments  came  to  be  legally 
settled — a  point  which  historians  more  interested  in  politi- 
cal events  than  in  legal  history  have  not  I  think  alto- 
o-ether  cleared  up.    Told  shortly  the  history  seems  to  be  this. 

1  "  Le  Lundy  en  le  Fest  de  Seinte  Feye  la  Virgine."     3  Sot.  Par.  449. 

2  lb.  427. 

3  This  statute  was  repealed  by  the  Statute  Law  Revision  Act,  1863  (26 
&  27  Vic.  c.  125).  I  think  that  a  great  constitutional  and  historical  landmark 
inif^ht  have  been  spared.  The  Act  is  only  fourteen  li(es  in  length.  The 
reileal,  however,  does  not  revive  the  power  of  appealing  in  Parliament,  as  all 
appeals  in  criminal  cases  were  abolished  by  59  Geo.  3,  c.  46. 


156  ESTABLISHMENT   OF   PRINCIPLES   AS   TO    IMPEACHMENTS. 

Chap.  V.  The  judicial  powers  of  the  Curia  Eegis  survived  when  parlia- 
^  ment  assumed  its  present  character.  They  were  exercised  in 
no  very  regular  way  throughout  the  reigns  of  Edward  I.  and 
Edward  III.  In  the  later  part  of  the.  reign  of  Edward  III. 
the  House  of  Commons  by  assuming  the  position  of  accusers 
imposed  a  severe  check  on  the  proceedings  of  what  we 
should  now  describe  as  ministers  of  state,  but  concurrently 
with  this  development  of  their  powers  there  arose  a  prac- 
tice of  "  appeal  "  or  private  accusation  which  enabled  any 
one  to  bring  any  one  else  to  trial  for  any  offence  before 
parliament.  In  some  cases  this  practice  appears  to  have 
worked  worse  than  the  unlimited  power  of  private  accusa- 
tion which  exists  at  the  present  day,  and  in  the  hands  of  a 
fierce  and  turbulent  feudal  nobility  who  could  enforce  their 
accusations  by  armies  of  retainers  it  became  an  abuse  which 
largely  contributed  to  the  revolution  by  which  Richard  II. 
was  deposed  and  Henry  IV.  set  on  the  throne.  This  in 
its  turn  led  to  the  Wars  of  the  Roses,  the  destruction  of  the 
feudal  nobility,  and  the  establishment  of  the  semi-despotic 
authority'  of  the  Tudors.  It  is  not  surprising  that  this  should 
have  been  the  case  when  we  read  the  account  given  in  the 
Parliament  Rolls  of  the  principles  on  which  Parliament  pro- 
ceeded in  such  cases.  The  Lords  in  1388  distinctly  repu- 
diate the  authority  of  all  law  whatever  except  "  the  Law  of 
Parliament"  a  phrase  for  that  which  parliament  judging 
ex  post  facto  might  consider  reasonable.  In  other  words 
their  claim  was  to  be  at  once  accusers,  judges,  and  ex  post 
facto  legislators  with  regard  to  the  exigency,  real  or  sup- 
posed, of  the  particular  case  before  them.  The  practical 
effect  of  this  was  that  in  the  course  of  ten  years  accusers 
and  accused  changed  places,  the  survivors  and  representa- 
tives of  those  who  had  been  put  to  death  for  accroaching 
royal  power,  succeeding  in  putting  to  death  for  the  same 
offence  those  who  had  destroyed  their  predecessors. 

The  statute  1  Hen.  4,  c.  14,  put  an  end  to  this  great 
evil,  and  went  a  great  way  towards  estabHshing  the  later 
view  of  parliamentary  impeachment  according  to  which 
there  must  be  an  accusation  by  the  Commons  and  a  trial 
before  the  Lords.     From  that  time  there  is  a  marked  change 


IMPEACHJfENTS   SUSPENDED   FOR    1 62    YEARS.  I  57 

in  the  character  of  the  prosecutions  which  took  place  in  Chap.  V. 
parliament.  Several  such  proceedings  occurred,  some  of 
which  cannot  be  reckoned  as  impeachments  in  the  full  and 
proper  sense  of  the  word.  ^Thus  in  140^  Thomas  Erpjmg- 
ham  accused  the  Bishop  of  Norwich  of  some  offence,  it  does 
not  appear  what,  but  the  King  ordered  them  to  be  reconciled, 
forgiving  the  Bishop,  who  he  said  had  erred  pegligently,  and 
thanking  Erpingham  and  assuring  him  that  he  believed  him 
to  have  acted  from  zeal  to  his  service.  It  is  not  at  all 
unlikely  that  the  King  thought  that  the  proceeding  was 
opposed  to  the  statute  of  the  previous  year.  In  the  cafee  of 
the  Percies  (7  &  8  Hen.  4,  A.D.  1406)  for  the  rebellion  in  the 
north,  ending  with  the  Battle  of  Shrewsbury,  there  was  a 
question  as  to  the  manner  in  which  proceedings  were  to  be 
taken,  and  the  peers  upon  deliberation  determined  that  they 
should  be  "  solonc  la  ley  et  usage  d'armes."  The  record  theh  sets 
forth  the  offences  charged,  proclamations  made  for  the  appear- 
ance of  the  parties,  and  the  non-appearance  of  ^  Henry  Percy 
and  Bardolf,  and  proceeds  to  convict  them  of  treason  and 
subject  -them  to  the  penalties  for  that  offence. 

In  '  1450  the  Duke  of  Suffolk  was  impeached  for  high 
treason,  and  one  *  Tailboys  for  an  attempt  to  murder  Ralph 
Lord  Cromwell.  ^Lastly,  in  1459  Lord  Stanley  was  impeached 
for  not  sending  his  troops  to  the  Battle  of  Blorebeath. 

All  these  impeachments  appear  to  have  been  conducted 
according  to  what  would  now  be  recognised  as  the  regu- 
lar course  of  proceeding.  I  may,  however,  observe  that 
in  1399  or  1400  a  case  occurred  which  contradicts  the 
principle  subsequently  established  as  to  pardons.     *  It  appears 

^  "  Le  Boi  seant  en  son  see  Roiale  de  son  bouehe  propre  monstra  et  dist  a 
"  dit  Mons  Thomas  coment  meme  celuy  Mons  Thomas  devant  ces  heures 
"  avoit  baillez  a  ufe  dit  Sf  le  Roy  une  Bille  de  certeinos  empeschementz 
"  touchantz  le  dit  Evesque,  du  quel  fait  meme  lire  Sr  le  Roy  remercia  le  dit 
"  Mons  Thomas  et  dist  qu'il  savoit  bien  q  ceo  q  meme  celuy  Moiis  Thomas 
' '  avoit  fait  a  cell  temps  feust  fait  pur  les  grantz  zele  chierte  et  tendresse 
"  queux  il  avoit  a  sa  persone,"  &c.  The  record  ends  by  saying  that  the  arch- 
bishop took  the  hands  of  the  bishop  and  Erpingham,  and  "les  fist  prendre 
"  I'un  I'autre  par  lamagne  et  leur  baiser  ensemble  en  signe  d'amour  perpetuel 
"  entre  eux  en  tout  temps  advenir."  3  Bot.  Par.  456.  Compare  Shakspeare's 
mention  of  Erpingham  in  Henry  V. 

2  Thomas  Percy  was  killed  at  Shrewsbury  but  his  father  survived  the 
battle  for  three  years. 

3  5  Sot.  Par.  176.     This  is  Shakspeare's  Suffolk  in  Henry  VI. 

4  /J.  200.  =  li  369.  »  3  Rot.  Par.  458. 


158  IMPEACHMENTS   REVIVED   UNDER   JAMES    I. 

Chap.  V.  from  a  petition  of  1400  that  one  Bagot  had  been  impeached 
by  the  Commons  of  "  pleuseurs  horribles  faits  et  mespri- 
"  sions."  He  was  put  to  answer  before  the  Lords  and  pro- 
duced a  "  chartre  generale  de  pardon "  on  which  the  Lords 
considered  "  q  le  dit  Monr's  William  ne  deust  etre  empesche 
"  ne  mys  a  response  par  la  loie." 

It  appears  from  all  this  that,  with  insignificant  exceptions, 
the  present  law  and  practice  as  to  parliamentary  impeach- 
ments was  established  as  the  result  of  the  transactions  above 
referred  to,  which  took  place  in  the  latter  part  of  the  reign 
of  Edward  III.  and  the  reign  of  Eichard  II. 

From  1459  to  1621,  a  period  of  162  years,  no  impeachment 
appears  to  have  taken  place,  at  least  none  is  mentioned  either 
in  the  Parliament  Rolls  or  the  Lords  Journals,  so  far  as 
appears  from  the  elaborate  ^indices  to  those  collections.  It 
is  not  quite  easy  to  give  a  full  explanation  for  this,  though 
some  of  the  reasons  are  obvious.  The  greatly  increased 
judicial  power  of  the  Privy  Council  which  was  vested  in  the 
Star  Chamber  affords  one  reason.  Such  cases  as  those  of 
Cogan  were  no  doubt  more  easily  and  speedily  dealt  with 
there  than  by  an  impeachment. 

The  immense  increase  of  royal  power  during  the  Tudor 
period  would  supply  another  reason.  It  was  not  till  parlia- 
ment reasserted  itself  under  James  I.  and  Charles  I.  that 
it  became  natural  or  perhaps  possible  to  use  impeachments 
for  the  punishment  of  ministers  considered  corrupt  or  oppres- 
sive. If  the  King  himself  wished  to  punish  a  minister  a 
bill  of  attainder  was  more  convenient  than  an  impeachment 
because  it  superseded  the  necessity  for  a  trial ;  and  though  our 
accounts  of  the  earlier  impeachments  are  imperfect,  enough 
remains  to  show  that  in  many  cases  at  least  witnesses  were 
examined  and  some  proceedings  in  the  nature  of  a  trial  had. 

Whatever  the  reasons  may  have  been  the  fact  is  that 
the  next  ^regular  impeachment  to  Lord  Stanley's,  in  1459, 
was  that  of  Sir  Giles  Mompesson  in  1621.  From  that 
date  to  the  present  day  there  have  been  fifty-four  impeach- 

'  The  index  to  the  Parliament  Rolls  is  a  folio  volume  of  1036  pages.  The 
calendar  to  the  Lords'  Journals  fills  two  folios. 

2  Articles  of  accusation  were  presented  in  Parliament  in  the  cases  of 
Wolsey,  Lord  Seymour  of  Sudeley,  and  perhaps  some  others. 


IMPEACHMENTS   SUBSEQUENT  TO    JAMES   I. 


159 


merits,  so  far  as  I  have  ascertained  from  the  calendar  to  the  Chap.  v. 
Lords'  Journals.  A  list  of  them  will  be  found  in  the  foot- 
note.i  The  proceedings  under  some  of  them  have  been 
amongst  the  most  memorable  events  in  our  general  his- 
tory, but  little  need  be  said  of  them  in  reference  to  our 
judicial    history.     They   represent   for   the   most   part   the 


1  1621. 
Sir  Giles. Mompesson. 
Lord  Bacon. 
Sir  F.  Mitchell. 
Sir  H.  Yelverton. 

1625. 
The  Earl  of  Middlesex. 

1626. 

The  Earl  of  Bristol. 

The  Duke  of  Buckingham. 

1640. 

The  Earl  of  Strafford. 

The  Lord  Keeper  Fynch. 

Sir  B.  Barkly  and  other  judges. 

1641. 
Sir  G.  Ratoliffe. 

1642. 

Archbishop  Laud. 
Dr.  Cosens. 
Bishop  Wren. 
Daniel  O'Neale. 
Sir  E.  Herbert. 
Sir  E.  Deriug. 
Mr.  Strode. 
Mr.  Spenser. 
Nine  Lords. 
Sir  R.  Gurney. 
Mr.  Hastings. 
Marquis  of  Hertford. 
Lord  Strange. 
Mr.  Wilde. 
Mr.  Broccas. 


1678. 
Lord  Stafford  and  four  other  Roman 

Catholic  lords. 
Lord  Danby. 

1680. 

Edward  Seymour. 
Sir  W.  Soroggs. 
Earl  of  Tyrone. 


1C61. 


Mr.  Drake. 

1666. 
Lord  Mordaunt. 

1667-. 
Lord  Clarendon. 

1668. 
Sir  W.  Penn. 


Fitz-Harris. 


1681. 


1689. 

Sir  A.  Blair  and  others. 

Lord  Salisbury. 

Earl  of  Peterborough. 


Duke  of  Leeds. 


1695. 


1698. 
John  Goudet  and  others. 


1701. 


Lord  Portland. 
Lord  Somers. 
Lord  Halifax. 


1709. 


Dr.  Sacheverell. 

1715. 
Lord  Oxford. 
Lord  Bolingbroke. 
Duke  of  Ormond. 
Earl  of  Strafford. 
Lord  Derwentwater. 

1724. 
Lord  Macclesfield. 


Lord  Lovat. 


1746. 


1787. 


Warren  Hastings. 


Lord  Melville. 


1805. 


l60  IMPEACHMENT  OF   HASTINGS. 

Chap.  V.  working  of  a  regular  and  well  understood  institution.  Twice 
in  the  reign  of  Charles  I.  attempts  were  made  to  break  in 
upon  the  established  theory  of  impeachment,  once  in  the 
case  of  the  Earl  of  Bristol,  whom  the  king  attempted  to 
accuse  of  treason  in  the  House  of  Lords  without  any  impeach- 
ment by  the  Commons  or  any  indictment  found  by  a  grand 
jury,  and  once  in  the  famous  case  of  the  five  members.  The 
list  given  in  the  note  shows  that  the  really  important  period, 
in  the  modern  history  of  impeachment,  was  the  seventeenth 
century,  and  particularly  the  reign  of  Charles  I.  The 
power  of  impeachment  was  the  weapon  by  which  the 
parliament  fought  their  battle  from  1640  to  1642.  In  the 
eighteenth  century  its  importance  declined,  and  it  became  a 
subject  rather  of  constitutional  and  antiquarian  curiosity 
than  of  practical  importance.  ^  The  impeachment  of  Warren 
Hastings  is,  I  think,  a  blot  on  the  judicial  history  of  the 
country.  It  was  monstrous  that  a  man  should  be  tortured,  at 
irregular  intervals,  for  seven  years,  in  order  that  a  singularly 
incompetent  tribunal  might  be  addressed  before  an  excited 
audience  by  Burke  and  Sheridan,  in  language  far  removed 
from  the  calmness  with  which  an  advocate  for  the  prosecution 
ought  to  address  a  criminal  court.  The  acquittal  of  the  de- 
fendant shows  conclusively  that  if  a  guilty  man  did  not 
escape,  an  innocent  man  was  cruelly  oppressed. 

It  is  hardly  probable  that  so  cumbrous  and  unsatisfactory 
a  mode  of  procedure  will  ever  be  resorted  to  again.  The  full 
establishment  of  popular  government,  and  the  close  super- 
intendence and  immediate  control  exercised  over  all  public 
officers  whatever  by  parliament,  make  it  not  only  unlikely 
that  the  sort  of  crimes  for  which  men  used  to  be  impeached 
should  be  committed,  but  extremely  difficult  to  commit  them. 

In  order  to  complete  what  I  have  to  say  on  the  subject  of 
the  criminal  jurisdiction  of  Parliament  I  ought  to  notice  bills 
of  attainder  and   of  pains  and  penalties.     Such  a  bill  is  an 

1  Pitt's  India  Bill,  24  Geo.  3,  sess.  2,  c.  25  (amended  by  26  Geo.  3,  o.  57), 
provided  a  special  court  for  tlie  trial  of  oifences  committed  in  India.  It  was 
to  be  composed  of  three  judges,  five  members  of  the  House  of  Lords,  and  seven 
members  of  the  House  of  Commons.  The  court  has  never  sat.  It  was  con- 
stituted before  Warren  Hastings  was  impeached,  and  indeed  before  his  return 
from  India.  I  suppose  the  act  was  considered  not  to  be  retrospective,  or 
Hastings  might  have  been  tried  under  it. 


ACTS  OF  ATTAINDER.  l6l 

act  of  parliament  for  putting  a  man  to  death  or  for  otherwise    Chap.  V. 

punishing  him  without  trial  in  the  usual  form.     I  am  un- 

able  to  say  what  was  the  first  act  of  this  kind,  but  the  first 

that  I  am  prepared  to  refer  to  is  the  ^act  of  attainder  of 

the  Duke  of  Clarence,  passed  in  1477  (17  Edw.  4).     It  is 

very  long  and  oratorical,  and  after  setting  out  at  length  the 

■offences  imputed  to  Clarence,  enacts  "  that  the  said  George 

"  Duke    of   Clarence  be    convicted  and   atteynted  of  high 

"  treason."     The  act  is  followed  by  the  appointment  of  the 

Duke  of  Buckingham  as  lord  high  steward  for  that  occasion 

to  do  execution.     Bills  of  attainder  were,  in  the  reign  of 

Henry  VIII.,  used  instead  of  impeachments ;  as  for  instance 

in  the  cases  of  Wolsey,  Thomas  Cromwell,  Queen  Katharine 

Howard,  the  Duke  of  Norfolk,  and  the  Earl  of  Surrey.  They 

have  occurred  occasionally  in  our  later  history.     The  most 

memorable  case  is  that  of  Lord  Strafford.     Other  instances 

are  those  of  Lord  Danby,  the  Duke  of  Monmouth,  and  Sir 

John  Eenwick.     As  instances  of  a  bill  of  pains  and  penalties 

I  may  refer  to  the  bill  against  Bishop  Atterbury,  and  to  the 

bill  against  Queen  Caroline,  which  will  probably  long  continue 

to  be  referred  to  as  the  last  instance  of  such  legislation. 

Thus  far  I  have  considered  the  extent  of  the  criminal 
jurisdiction  of  Parliament,  when  set  in  motion  by  an  im- 
peachment by  the  Commons  who  are  said  to  be,  for  that 
purpose,  the  grand  jury  of  the  whole  nation.  I  proceed  now 
to  consider  the  special  criminal  jurisdiction  which  the  House 
of  Lords  possesses  over  Peers  of  Parliament.  It  extends  only 
to  felonies,  for  in  cases  of  misdemeanour  a  peer  may  be  tried 
like  a  commoner.  When  Parliament  is  sitting  the  tribunal 
is  the  House  of  Lords,  which  is  usually,  though  not  neces- 
sarily, presided  over  by  a  Lord  High  Steward  appointed  for 
the  purpose.  In  this  case  the  peers  themselves  are  the 
judges,  the  Lord  High  Steward  being  only  the  president  of 
the  court. 

If  Parliament  is  not  sitting  the  court  is  the  Court  of  thes 
Lord  High  Steward,  who  is  the  only  judge  of  it,  such  other! 
peers  as  may  attend  the  court  acting  as  a  jury,  under  the  \ 
name  of  the  "  Lords  Triers." 

1  6  Rot.  Par.  193. 

VOL.    I.  M 


1 62  TEIAL   OF   PEERS   BY   PEEES. 

Chap.  V.  These  courts  are  of  the  most  remote  antiquity,  and  may 
indeed  be  regarded  as  remnants  of  the  old  Curia  Regis,  which 
have  survived  without  material  alteration  the  vicissitudes  of 
eight  centuries.  The  courts  can  hardly  be  said  to  have  any 
history,  though  it  will  be  worth  while  to  mention  a  few 
points  connected  with  them. 

I  have  sufficiently  illustrated  the  judicial  functions  and 
powers  of  the  Curia  Regis  itself.  '  The  famous  passage  in 
Magna  Charta  about  the  "  legale  judicium  parium  suorum  " 
appears  to  me  to  refer  to  the  trial  of  peers  in  the  King's 
Court  rather  than  to  trial  by  jury.  The  21st  Article  of 
Magna  Charta  has  a  similar  expression :  "  Comites  et  barones 
"  non  amercientur  nisi  per  pares  suos  et  non  nisi  secundum 
"  modum  delicti."  I  do  not  think  that  the  expression  "  trial 
"  by  jury"  would  have  been  used,  or  would  have  been  in- 
telligible, in  King  John's  time.  It  would  have  been  de- 
scribed rather  as  the  taking  of  an  inquisition  by  an  assize, 
or  by  lawful  men,  and  is  I  think  referred  to  bj'  the  words 
"  vel  per  legem  terrse."  .  These  would  include  not  only 
inquests  taken  by  jurors  on  the  execution  of  commissions  of 
eyre,  gaol  delivery  and  oyer  and  terminer,  but  also  trials  by 
combat  or  by  ordeal,  each  of  which  was  part  of  the  lex 
terrse  at  the  date  of  Magna  Charta.  In  short,  I  should  be 
inclined  to  construe  "  nullus  liber   homo "   distributivelyj— 

1  "Nullus  liber  homo  oapiatur  vel  imprisonetur  aut  dissaisiatur,  aut 
' '  utlagetur,  aut  exuletur,  aut  aliquo  mode  destruatur  neo  super  eum  ibimus 
"  nee  super  eum  mittemus,  nisi  per  legale  judicium  parium  suorum  vel  per 
"  legem  terrse."  Stubbs,  Charters,  301.  The  following  observation  on  this 
passage  is  made  in  the  Eeport  on  the  Dignity  of  (he  Peer  (i.  450).  "The 
"  right  to  the  judicium  parium  asserted  by  that  charter  was  probably  the 
"  ancient  law  of  the  kingdom,  and  therefore  when  a  person  of  rank  was 
' '  accused  of  any  offence  for  which  the  law  required  trial  by  his  peers,  it  was 
' '  necessary  that  the  King  should  summon  to  the  Court  of  Justice  by  which 
' '  the  person  accused  was  to  be  tried  the  peers  of  the  accused.  The  persons 
' '  attending  on  such  occasions  are  sometimes  described  by  the  general  words 
"  proceres,  or  'magnates,'  and  sometimes  more  particularly  as  Archbishops, 
' '  Bishops,  Abbots,  Priors,  Earls,  and  Barons,  with  the  addition  also  some- 
"  times  of  the  general  words  proceres,  or  'magnates.'  It  is  probable  that 
' '  many  persons  answering  the  several  descriptions  attended  on  extraordinary 
"  occasions  which  required  their  presence."  This  most  elaborate  iiport  is 
occupied  almost  entirely  with  the  legislative  functions  of  the  peerage,  and 
says  hardly  anything  of  their  judicial  functions.  The  expression- "judicium 
parium  "  is  however  older  than  Magna  Charta.  In  the  leges  Henrici  Primi 
xxxi.  7  (Thorpe  i.  534),  this  passage  occurs:  "  Unusquisque  per  pares  suos 
"  judicandus  est,  et  ejusdem  provinciae."  This  however  appears  from 
xxix.  i.  to  apply  to  "barones  eomitatus."  See  too  in  reference  to  this  matter 
the  trial  of  Hugo  in  1303,  p.  260,  post. 


CASE  OF   EAEL   OF   LANCASTER.  1 63 

"  no  free  man  shall  be  taken,  &c.,  except  (if  he  is  one  of  the  Chap.  v. 
"  vassals  of  the  King's  Court;  by  the  lawful  judgment  of  his 
"  peers,  or  (if  he  is  not  such  a  vassal)  by  the  law  of  the  land, 
"  "i.e.  the  ordinary  course  of  justice."  However  this  may  have 
been,  the  right  of  the  peers  to  be  tried  by  their  peers  for 
treason  or  felony  has  never  at  any  period  of  English  history 
been  either  questioned  or  invaded,  or  modified  in  any  way, 
with  some  slight  exceptions. 

1  will  give  one  or  two  instances  of  its  solemn  recognition. 
^  In  1322  Thomas  of  Lancaster  was  put  to  death  in  a  sum- 
mary way  by  Edward  II.  In  1327  the  judgment  against 
him  was  re  versed  upon  a  writ  of  error,  one  of  the  principal 
errors  assigned  being  "  quod  cum  predictus  Thomas  comes 
"  fuisset  unus  Parium  et  Magnatum  regni,  et  in  Magna 
"  Carts,  de  Libertatibus  Angl'  contineatur  quod  "  (the  well- 
known  passage  is  here  quoted)  "  predictus  Thomas  comes  .  . 

"  .  .  morti  adjudicatus  est  absque  arenamento  seu  respon- 
"  sione  seu  legali  judicio  parium  suorum."  ^In  4  Edw.  3 
(1330)  Roger  Mortimer  and  his  accomplice  Simon  de  Bere- 
ford  were  charged  in  Parliament  with  treason.  The  "  earls, 
"  barons,  and  peers  "  examined  the  articles  alleged  against 
Mortimer,  convicted  him  of  treason,  and  sentenced  him  to 
death.  As  to  Bereford,  "our  lord  the  King  charged  the 
"  said  earls,  barons,  and  peers,  to  give  right  and  lawful 
"  judgment  as  appertains  to  them  on  Simon  de  Bereford, 
"  Knight"  ....  "  And  the  earls,  barons,  and  peers  je- 
"  turned  to  the  King,  and  said  all  with  one  voice  that  the 
"  said  Bereford  was  not  their  peer,  wherefore  they  were  not 
"  bound  to  try  him  as  a  peer;  nevertheless,  as  he  was  a 
"  notorious  traitor,  they  sentenced  him  to  be  drawn  and 
"  hung." 

The  right  of  peers  to  be  tried  in  Parliament  was  afiirmed 
by  8  statute  in  the  year  1341  (15  Edw.  3),  which  recited 
that  peers  of  the  realm  had  been  arrested,  imprisoned,  sub- 
jected to  forfeitures,  and  in  some  cases  to  death  without 
judgment  of  their  peers,  and  enacted  that  for  the  future 

'  2  Mot.  Par.  5,  6. 

2  lb.  53.  See  some  remarks  on  the  irregularity  of  this  proceeding  in  Report 
ore  Dignity  of  a  Peer,  i.  p.  299,  and  fiirther  remarks  on  the  case  of  Berkeley 
(mentioned  above)  at  p.  301.  '  lb.  132. 

M   2 


164 


COURT   OF   LORD  HIGH  STEWARD. 


Chap.  V.  '<  jjq  pggj.  ^f  ^-jjg  realm,  officer,  or  other,  on  account  of  his 
"  office,  or  for  things  touching  his  office,"  should  be  liable  to 
be  tried  or  punished  "  except  by  award  of  the  said  peers  in 
Parliament ;  "  and  that  if  any  peer  submitted  to  be  judged 
or  to  answer  elsewhere,  that  was  not  to  prejudice  the  rights 
of  other  peers  or  his  own  rights  on  other  occasions. 

This  statute  was  repealed  in  1343,  '  but  with  this  singular 
reservation  :  "  as  some  of  the  articles  comprised  in  the  statute 
"  are  reasonable  and  in  accordance  with  law  and  reason,  those 
"  articles  and  the  others  agreed  upon  in  this  Parliament  are 
"  to  be  made  into  a  new  statute."  Whatever  may  have  been 
the  effect  of  the  repeal,  it  does  not  affect  the  recognition  of 
the  principle  made  by  the  statute.  It  must  be  observed, 
however,  that  the  statute  went  far  beyond  what  has  ever 
since  been  recognised  as  the  law,  for  it  applies  to  all  offences 
whatever,  and  is  not  confined  to  treason  and  felony.  I  am 
unable  to  give  the  history  of  the  limitation  of  the  privilege 
of  peers  to  cases  oi  treason  and  felony.  It  is,  however,  appa- 
rently as  old  as  1442,  for  in  that  year  an  act  (20  Hen.  6, 
c.  9)  was  passed,  which  recites  that  although  Magna  Charta 
provides  that  "  nullus  liber  homo  "  shall  be  punished  except  by 
judgment  of  his  peers,  "  n'est  my  mention  fait  coment  fem- 
"  mes,  dames  de  graunde  estate  par  cause  de  leurs  barons 
"  peres  de  la  terre  covertez  or  soulez,"  are  to  be  tried  upon 
indictments  of  treason  or  felony,  and  it  provides  that  they 
shall  be  tried  like  other  peers  of  the  realm.  It  seems  clear 
from  this  that  a  peer  was  not  at  that  time  entitled  to  be  tried 
by  his  peers  for  a  misdemeanour. 

The  Court  of  the  Lord  High  Steward  is  probably  a  rem- 
nant of  the  Curia  Regis,  which  has  survived  unimpaired  from 
the  Conquest  at  least,  and  probably  from  earlier  times.  The 
Lord  High  Steward  was  one  of  the  great  officers  of  the  Curia 
Regis,  and  in  ^  Madox  may  be  seen  a  collection  of  a  great 
number  of  records  and  notices  by  historical  writers  relating 
to  the  different  holders  of  the  office,  and  to  similar  offices  in 
Normandy,  France,  and  Spain.  The  steward  of  Arragon  had 
"  a  great  judicial  power,  for  he  had  cognizance  of  all  causes 
"  and  quarrels,  except  in  certain  cases  reserved  to  the  Kino-'s 
1  2  Rot.  Par.  139.  "-  I  Hut.  Exch.  48. 


PROCEDURE  AGAINST  PEERS.  •  1 65 

"  own  cognizance,  and  when  he  was  present  in  any  city  or   Chap.  v. 
"  town  whatever,  all  causes  before  any  other  judge  were  to 
"  cease,  if  he  so  commanded."     The  judicial  officer  in  all  the 
manor  courts  was,  as  indeed  he  still  is,  called  the  Steward. 

According  to  ^  Coke  the  office  of  High  Steward  was  here- 
ditary till  the  time  of  Henry  IV.,  after  which  it  was  granted 
Jidc  vice  when  an  occasion  arose  for  the  services  of  such 
an  officer  either  at  the  trial  of  a  peer  or  at  a  coronation. 

The  only  legislative  enactment  which  has  taken  place 
in  relation  to  these  courts  is  7  &  8  Will.  3,  c.  3,  which 
provides  that  upon  the  trial  of  any  peer  or  peeress  for 
treason  or  misprision,  all  the  peers  who  have  a  right  to  sit 
and  vote  in  Parliament  shall  be  duly  summoned,  twenty  days 
at  least  before  every  such  trial,  to  appear  at  every  such  trial, 
and  that  every  peer  so  summoned,  and  appearing  at  such 
trial,  shall  vote  in  the  trial. 

The  object  of  this  statute  was  to  remedy  an  abuse  which 
formerly  existed  in  the  case  of  trials  before  the  Court  of  the 
Lord  High  Steward.  The  Lord  High  Steward  summoned  such 
and  so  many  Lords  Triers  as  he  thought  fit,  and  no  one  who 
was  not  so  summoned  had  a  right  to  take  part  in  the  trial. 

Indictments  upon  which  the  House  of  Lords  or  the  Court 
of  the  Lord  High  Steward  proceed  may  be  and  are  found, 
like  other  indictments,  either  in  the  Queen's  Bench  division 
or  on  circuit,  and  I  suppose  they  might  be  found  at  the 
Quarter  Sessions,  if  a  peer  committed  an  offence  cognizable 
there. '  When  so  found  they  are  removed  by  certiorari  into 
the  Court  before  which  they  are  to  be  tried. 

There  have  been  four  trials  of  peers  in  the  House  of  Lords 
since  the  end  of  the  reign  of  George  II.,  viz.,  Lord  Ferrers  for 
murder  in  1760 ;  Lord  Byron  for  murder  in  1765 ;  the 
Duchess  of  Kingston  for  bigamy  in  1776 ;  and  Lord  Cardigan 
in  1841.  The  trial  of  Lord  Delamere  for  treason  in  1686, 
before  Jeffreys,  is,  I  believe,  the  last  instance  of  a  trial  in  the 
Court  of  the  Lord  High  Steward. 

1  Coke  ith  Inst.  58.  The  derivation  of  the  office  according  to  Coke  was 
thus  —The  Earls  of  Leicester  were  High  Stewards  till  Simon  de  Montfort 
forfeited  the  office  to  Henry  III.  Henry  granted  the  office  and  the  earldom  to 
his  second  son,  Edmond,  whence  it  descended  to  Henry  of  Bolinghroke,  son  and 
heir  of  John  of  Gaunt,  and  afterwards  Henry  IV. 


1 66 


•CRIMINAL  JURISDICTION   OF  PRIVY  COUNCIL. 


CHAPTER   VI. 

THE  CRIMINAL  JURISDICTION  OF  THE  PRIVY   COUNCIL. 

Chap.  VI.  The  growth  of  the  Courts  of  Equity  forms  one  of  its  most 
important  chapters  in  the  history  of  our  law.  These  courts 
supplied  the  defects  of  the  crude  and  meagre  system  which 
constituted  the  common  law,  by  the  introduction  of  remedies 
unknown  to  it,  and  by  the  enforcement  of  obligations  which 
it  did  not  recognize.  To  describe  the  steps  by  which  this 
was  done  does  not  fall  within  the  scope  of  this  work,  but  it 
illustrates  an  analogous  process  with  reference  to  the  criminal 
law,  which,  after  making  much  progress,  was  brought  to  an 
abrupt  conclusion  by  the  legislature  in  consequence  of  the 
way  in  which  it  was  abused.  I  refer  to  the  criminal  jurisdic- 
tion of  the  Council  as  exercised  by  the  famous  Court  of 
Star  Chamber.  Several  other  analogous  courts  exercised  a 
similar  jurisdiction  in  particular  places.  The  most  important 
of  these  were  the  Court  of  the  President  of  the  North  and 
the  Court  of  the  Marches  of  Wales.  They  have  not,  how- 
ever, left  such  traces  either  in  the  law  itself  or  in  history 
as  to  make  it  worth  while  to  treat  of  them  at  length.  The 
case  is  different  with  respect  to  the  judicial  authority  of  the 
Privy  Council.  Not  only  did  its  decisions  leave  deep  traces 
both  on  our  law  and  on  our  history,  but  it  is  closely  connected 
with  the  body  which  to  this  day  holds  the  position  of  the  Su- 
preme Court  of  Appeal  in  all  criminal  cases  arising  in  any  of 
Her  Majesty's  dominions  beyond  the  seas — the  Judicial  Com- 
mittee of  the  Privy  Council.     ^  The  history  is  as  follows : — 

1  The  authorities  for  what  follows  are  Hallam,  Middle  Ages,  iii.  138-147 
(ed.  1855) ;  Hallam,  Const.  Hist.  i.  48-65,  230-233,  &o.,  and  ii.  29-31,  &o. ; 


ORIGIN   OF  JURISDICTION   OF   COUNCIL.  167 

T  have  already  described  the  constitution  of  the  Curia  Chap.  vi. 
Regis  and  the  manner  in  which  the  Courts  of  Common  Law 
were  derived  from  it.  Its  relation  to  Parliament  has  been 
traced  by  others,  and  need  not  be  mentioned  here.  It  also 
(as  I  have  said)  falls  outside  of  my  subject  to  give  any 
account  of  the  origin  or  gradual  development  of  the  judicial 
authority  of  the  Lord  Chancellor,  who  was  one  of  its  great 
officers  ;  but  I  must  add  to  what  has  already  been  said  that, 
after  throwing  off  the  great  branches  already  enumerated  the 
Curia  Regis  still  continued  to  occupy  a  position  corresponding 
to  that  of  the  Cabinet  or  rather  of  the  Ministry  of  our  own 
day,  but  of  greater  importance,  as  it  had  judicial  as  well 
as  executive  functions.  In  this  capacity  it  was  called  the 
Council,  and  as  time  went  on  three  several  bodies  so  called 
came  to  be  distinguished  by  different  titles,  namely  (1)  the 
Great  Council  of  the  Natioji  or  Parliament ;  (2)  the  Council ; 
(3)  the  Privy  Council.  It  is  a  matter  of  great  difficulty  to 
distinguish  these  three  bodies  from  each  other  in  the  early 
stages  of  their  history.  I  need  say  nothing  as  to  the  diffi- 
culty of  distinguishing  between  councils  and  parliaments ; 
nor  is  it  necessary  to  my  present  purpose  to  go  beyond  a 
mere  mention  of  the  difficulty  of  discriminating  between  the 
body  called  the  Council  and  the  House  of  Lords  on  the  one 
hand,  and  the  Privy  Council  on  the  other.  A  full  collection 
of  all  that  is  known  on  these  subjects  will  be  found  in  the 
works  of  the  writers  already  referred  to. 

The  leading  points  in  the  history  of  the  judicial  authority 
of  the  Council  are  these :  It  took  from  the  earliest  times  a 
part  in  the  administration  of  justice,  which  was  viewed  with 
great  suspicion  by  Parliament,  and  was  made  the  subject  of 
remonstrance  by  them  on  various  occasions  in  the  course  of 

Palgrave's  Essay  on  ths  Original  Authority  of  the  King's  Council ;  Hudson's 
"Treatise  on  the  Star-Chamber, "  in  Collectanea  Jtiridica,  vol.  ii.  _  The 
passages  referred  to  in  Hallam  are  little  more  than  an  abstract  of  what  is  said 
by  Palgrave  and  Hudson.  A  note  in  the  last-mentioned  treatise  says  that  a 
MS.  copy  of  it  contains  a  memorandum  pm-porting  to  be  signed  by  J. -Finch, 
Chief  Justice  of  the  Court  of  Common  Pleas,  and  afterwards  Lord  Keeper, 
whicli  says,  "  This  Treatise  was  composed  by  William  Hudson,  of  Gray's 
"  Inn,  Esquire,  one  very  much  practised,  and  of  great  experience  in  the  Star 
"  Chamber,  and  my  very  affectionate  friend."  The  note  in  question  also  refers 
to  a  reference  made  to  it  by  Lord  Mansfield  in  Wilkes's  case,  4  Burr.  2554, 
The  treatise  is  singularly  well  written  and  full  of  curious  information. 


1 68 


COURT  OF  STAR  CHAMBER. 


Chap.  VI.  the  fourteenth  and  fifteenth  centuries.  Notwithstanding  these 
remonstrances,  and  also  notwithstanding  the  provisions  of 
several  statutes  on  the  subject,  the  jurisdiction  of  the 
Council  continued  and  increased,  and  it  ultimately  established 
itself  as  one  of  the  recognised  institutions  of  the  country. 

The  Council  when  acting  in  its  judicial  capacity  ^ "  held  its 
"  sittings  in  the  '  Starred  Chamber,'  an  apartment  situated 
"  in  the  outermost  quadrangle  of  the  palace,  next  to  the 
"  bank  of  the  river,  and  consequently  easily  accessible  to  the 
"  suitors,  and  which  at  length  was  permanently  appropriated 
"  to  the  use  of  the  Council.  The  '  lords  sitting  in  the  Sterre 
"  '  Chamber '  became  a  phrase  ....  and  we  can  hardly 
"  doubt  that  this  circumstance  contributed  to  assist  the 
"  Council  in  maintaining  their  authority." 

The  Court  of  Star  Chamber  had  become  an  established 
institution  by  the  reign  of  Henry  VII.  Early  in  that  reign 
a  statiite  was  passed  (3  Hen.  7,  c.  1),  which,  though  it 
did  not,  as  has  been  sometimes  supposed,  create  the  court, 
conferred  special  powers  on  some  of  its  members. 

The  court  rose  to  the  height  of  its  influence  under  Eliza- 
beth. It  was  regarded  tinder  James  I.  and  Charles  I.  as 
oppressive,  and  was  finally  abolished  in  1640,  by  16  Chas.  1, 
c.  10.  This  celebrated  Act  recites  the  different  statutes 
bearing  on  the  subject,  declares  that  the  proceedings,  cen- 
sures, and  "  decrees  of  the  court  have  by  experience  been 
"  found  to  be  an  intolerable  burden  to  the  subjects,  and  the 
"  means  to  introduce  an  arbitrary  power  and  government," 
and  enacts  that  the  Court  of  Star  Chamber,  and  all  similar 
courts,  and  particularly  the  Courts  of  the  Council  of  the 
Marches  of  Wales,  the  President  and  ^  Council  of  the  North, 
the  Duchy  of  Lancaster,  and  the  Court  of  Exchequer  of  the 
County  Palatine  of  Chester,  shall  be  abolished,  and  that  no 
similar  coiirt  shall  be  established  for  the  future. 

1  Palgrave,  38. 

'^  The  words  of  the  Act  (s.  4)  are:  "The  like  jurisdiction  now  used  and 
"exercised"  in  the  courts  named  "shall  be  also  repealed  and  absolutely 
"  revoked  and  made  void."  The  Court  of  Star  Chamber  was  dissolved  (s.  3), 
but  the  other  courts  were  not  dissolved  in  telms.  The  "  Court  holden  before 
"  the  President  and  Council  of  the  Marches  of  Wales "  seems  to  have  sur- 
vived for  forty-eight  years,  as  it  was  abolished  in  1688  by  1  Will.  &  Mary, 


EARLY   HISTOllY   OF   COUNCIL.  1 69 

It  is  unnecessary  to  dwell  in  this  place  upon  events  -which  Chap.  VI. 
fill  so  large  a  space  in  the  general  history  of  the  country,  but 
the  earlier  history  of  the  Council  is  less  well  known  than  the 
events  which  led  to  its  fall. 

'  "  It  seems,"  says  Sir  F.  Palgrave,  "  that  in  the  reign  of 
"  Henry  III.  the  Council  was  considered  as  a  Court  of  Peers 
"  within  the  terms  of  Magna  Charta ;  and  before  which,  as  a 
"  court  of  original  jurisdiction,  the  rights  of  tenants  holding 
"  m  capite,  or  by  barony,  were  to  be  discussed  or  decided; 
"  and  it  unquestionably  exercised  a  direct  jurisdiction  over  all 
"  other  the  King's  subjects."  "  Great  transgressions  against 
"  the  public  peace  were  heard  before  the  Council."  In  a 
note  to  this  passage  Sir  F.  Palgrave  refers  to  the  arraign- 
ment of  Segrave,  Constable  of  the  Tower,  for  permitting  the 
escape  of  Mortimer,  and  quotes  a  curious  record,  in  which 
Sir  John  Dalton  is  summoned,  "  sub  forisfactura  vitse  et 
"  membrorum  et  omnium  aliorum  quae  nobis  forisfacere 
"  poteris"  to  bring  before  the  Council  one  Margeria  de  la 
Beche,  the  wife  of  Gerard  De  L'lle,  whom  Dalton  had 
forcibly  abducted,  and  to  do  and  receive  (ad  faciendum  et 
recipiendum)  such  orders  as  the  Council  shall  give. 

No  opposition  appears  to  have  been  made  to  this  jurisdic- 
tion till  the  25th  Edw.  3  (18-50),  when  the  ^  Commons 
petitioned  "  qe  nul  franc  homme  ne  soit  mys  a  respondre  de 
"  son  franc  tenement  ne  de  riens  que  touche  vie  et 
"  membre  fyns  ou  redemptions  par  apposailles  (informa- 
"  tions)  devant  le  conseil  nfe  seignur  le  Eoi,  ne  devant  ses 
"  ministres  quecumques  sinoun  par  proces  de  ley  de  ceo  en 
"  arere  use."  The  answer  is,  "  II  plest  a  nfe  seignur  le 
"  Eoi  q  les  leies  de  son  Koiaume  soient  tenuz  et  gardez  en 
"  lour  force,  et  q  nul  homme  soit  tenu  a  respondre  de  son 
"  fraunk  tenement  sinoun  par  processe  de  ley ;  mes  de  chose 
"  que  touche  vie  ou  membre  contemptz  ou  excesse  soit  fait 
"  come  ad  este  use  cea  en  arere." 

This  seems  to  be  an  express  recognition  of  the  fact  that 
for  at  least  135  years  after  Magna  Charta  the  criminal 
jurisdiction  of  the  Council  was  undisputed.     ^  Either  in  the 

1  p   34  22  Eot.  Par.  228,  and  see  Talgrave,  25. 

8  2  Eot.  Par.  23'J. 


170  STATUTES   RELATING   TO   COUNCIL. 

Chap.  VI.  same  or  in  the  next  Parliament  a  similar  petition  was 
granted  without  any  reservation,  and  this  led  to  the  statute 
printed  as  25  Edw.  3,  st.  5,  c.  4.  Similar  statutes  were 
passed  in  1354  (28  Edw.  3,  c.  3)  and  in  1368  (42  Edw.  3, 
c.  3).'  On  two  occasions  in  the  reign  of  Eichard  II.,  three 
in  the  reign  of  Henry  IV.,  two  in  the  reign  of  Henry  V., 
and  one  in  the  reign  of  Henry  VI.,  petitions  were  made 
by  Parliament  with  a  view  to  limit  the  powers  of  the 
Council,  but  none  of  them  passed  into  a  statute,  the  answers 
given  by  the  King  being  either  unfavourable  or  qualified. 
Some  of  these  petitions  and  the  answers  show  that  the 
ground  on  which  the  jurisdiction  of  the  Council  was  defended 
was  the  difficulty  in  many  instances  of  obtaining  redress  for 
injuries  at  the  common  law.  ^  Thus  in  1399  (1  Hen.  4)  the 
Commons  petition  that  personal  actions  between  party  and 
party  may  not  be  tried  by  the  Council,  to  which  the  answer 
is,  "  Soit  I'Estatut  ent  fait  tenuz  et  gardez,  la  ou  I'une 
"  partie  est  si  graunt  et  riche,  et  I'autre  partie  si  povre 
"  qu'il  ne  purra  autrement  avoir  recoverer."  The  w^ord 
"except"  (supplied  by  ^Sir  F.  Palgrave  after  "gardez") 
appears  to  be  wanted. 

Upon  the  whole,  the  legal  position  of  the  Court  of  Star 
Chamber  in  1640  seems  to  have  been  this.  It  had  existed 
for  135  years  after  Magna  Charta  without  being  supposed  to 
be  illegal  or  to  be  in  any  way  opposed  to  Magna  Charta.  In 
1350, 1354,  and  1368,  three  successive  acts  of  Parliament  were 
passed,  which,  at  first  sight,  seem  to  be  intended  to  abolish  it. 
From  1368  to  1640  (272  years)  it  continued  to  exist,  not- 
withstanding parliamentary  petitions  which  did  not  become 
statutes,  the  last  of  which  was  made  in  1422,  218  years 
before  1640.  On  the  other  hand,  the  statute  3  Hen.  7, 
c.  2,  if  it  did  not  exactly  recognise  the  powers  of  the  old 
court,  at  all  events  established  a  new  one  composed  of 
several  of  its  members  and  with  a  jurisdiction  which,  as  far 
as  it  went,  was  identical  with  it. 

It  would  seem  natural  under  such  circumstances  to  suppose 
that  some  other  interpretation  ought  to  be  put  upon  the 
statutes  of  Edward  III.  than  that  which  was  given  to  them 
1  See  too  11  Rich.  2,  k>.  10.  2  3  jiot.  Par.  446.  s  r,   47 


EFFECT   OF    STATUTES.  I  7 -^ 

in  1640.      ^  Hudson  suggests  "  that  these  statutes  did  not   Chap.  VI. 

"  extinguish  the  power  of  the  court,  but  the  abuse  of  appre- 

"  bending  men's  persons  to  answer  suggestions."     The  words 

of  the  statutes  are  "  no  man  shall  be  put  to  answer  before 

"  the  King  or  his  Council  without  presentment  before   his 

"  justices,  matter  of  record,  or  writ   original  according  to 

"  the  ancient  laws."      ^  Hudson  argues  that  the   letter   of 

privy  seal,  by  which  proceedings  were,  at   least  in   many 

cases,  commenced  before  the  Star  Chamber  was  an  original 

writ,  and  that  the  abuse  intended  to  be  remedied  was  the 

arrest  of  a  defendant  by  a  pursuivant  on  a  bare  suggestion 

by  a  plaintiff.     The  phrase  "  no  man  shall  be  put  to  answer 

"  before  the  Council,  unless "  certainly  seems  to  imply  that 

there  was  some  legal  way  of  proceeding  before  that  body. 

Be  this  as  it  may,  it  is  to  be  observed  that  even  the  Act  of  1640 

did  not  declare  the  Court  to  be  in  itself  illegal  and  its  powers 

to  be  usurped.    On  the  contrary,  it  recites  that  the  matters 

examinable  there  are  all  capable  of  being  duly  remedied  at 

common  law,  and  that  "  the  reasons  and  motives  inducing 

"  the  erection  and  continuance  of  that  court  do  now  cease." 

I  shall  have  to  return  to  the  subject  of  the  Star  Chamber 
in  connection  with  the  history  of  the  definitions  of  crimes 
and  the  history  of  legal  procedure.  I  will  conclude  what  I 
have  to  say  at  present  by  some  observations  on  the  general 
character  and  functions  of  the  court. 

The  praises  of  trial  by  jury  as  a  bulwark  of  individual 
liberty  are  a  familiar  topic.  It  is  less  commonly  known, 
but  it  is  certainly  no  less  true,  that  the  institution 
opened  a  wide  door  to  tyranny  and  oppression  by  men  of 
local  influence  over  their  poorer    neighbours.     ^  In  feudal 

1  P.  12.  2  p_  4  .  gee  too  Coke,  ith  Inst.  63. 

3  Sir  F.  Palgrave  (pp.  103,  289,  &c.)  gives  some  curious  illustrations  of  this. 
The  following  are  verses  from  a  "  ballad  or  libel  "  of  the  time  of  Edward  I.  ; — ■ 

"  Mes  le  male  doseynes  dount  Dieu  n'est  ja  piete, 
Parmi  lur  fauce  touches  me  ont  euditee, 
De  males  robberies  e  autre  mavestee, 
Qe  je  n'ose  entre  mes  amis  estre  receptee. 

"  Si  ces  maveis  jurours  ne  se  vueillent  amender, 
Qe  je  pus  a  mon  pais  chevalcher  e  aller, 
Si  je  les  pus  ateindre  la  teste  lur  froi  voler, 
De  touz  lur  manaces  ne  dorroi  un  doner. 


172  DEFECTS  OF  TRIAL  BY  JURY. 

Chap.  VI.  times  the  influence  of  a  great  landowner  over  the  persons 
who  were  returned  as  jurymen  to  the  assizes  was  practi- 
cally almost  unlimited,  and  the  system  of  indictment  by 
a  grand  jury  which  merely  reported  on  oath  the  rumours 
of  the  neighbourhood  might,  and  no  doubt  often  did,  work 
cruel  injustice.  The  offence  which  was  long  known  to  the 
law  as  maintenance,  or  perverting  justice  by  violence,  by 
unlawful  assemblies  and  conspiracies,  was  the  commonest 
and  most  characteristic  offence  of  the  age.  One  of  its  com- 
monest forms  was  the  corruption  and  intimidation  of  jurors. 
Signal  proof  of  this  is  supplied  by  the  repeated  legislation 
against  this  offence.    The  nature  of  the  offence  itself,  and  the 

' '  Vous  qui  estes  endite  je  lou  venez  ci  moi, 
Cit  vert  tois  de  Belregard,  la  n'y  a  nul  ploy, 
Forsque  beste  savage  e  jolyf  umbroy, 
Car  trop  est  dotouse  la  commune  loy. 

The  following  passage  is  from  the  Vance  of  Death,  and  gives  a  conversation 
between  Death  and  a  juror  : — 

' '  Master  j  urrour,  which  that  at  assizes, 
And  at  sheres  quests  didst  embrace 
Deper  didst  lond  like  to  thy  devises, 
And  who  most  gave  most  stood  in  thy  grace. 
The  poor  man  lost  both  lond  and  place, 
For  gold  thou  oouldest  folk  disherite. 
But  now  let  see  with  thy  pale  face, 
Tofore  the  judge  how  canst  thee  quite  ? " 

The  jurrour  maketh  answer  : — 

"  Whilom  I  was  cleped  in  my  countrey. 
The  belweather,  and  that  was  not  alight ; 
Nought  loved  but  drad  of  high  and  low  degree. 
For  whom  the  best  by  craft  1  could  endite, 
Hengen  the  true  and  the  thef  respite, 
All  the  countrey  by  my  word  was  lad. 
But  I  dare  sein  shortly  for  to  write, 
Of  my  death  many  a  man  is  glad." 

The  case  of  Cogan,  quoted  above,  from  the  Parliamentary'  Rolls  is  an 
illustration  of  the  same  thing.  He  offered  to  make  good  his  case  in  any  way, 
"  sinoun  par  verdit  de  jurrours."  I  cannot  say,  however,  that  the  introduction 
of  such  phrases  into  popular  ballads  proves  very  much.  The  writers  may  have 
been  great  rogues.  In  my  youth  a  ballad  used  to  be  sung  which  was  said  to 
be  a  genuine  product  of  the  hulks.     It  began — 

' '  My  curse  rest  on  you,  Justice  Bayley, 
And  gentlemen  of  the  jury  also, 
For  transporting  me  from  the  arms  of  my  Polly, 
For  twenty  long  years  as  you  know." 

This  is  very  like  the  "  males  doseynes  dount  Dieu  n'est  ja  piete."    The  defects 
of  trial  by  jury  in  early  times  rest,  however,  on  better  evidence  than  this. 


STATUTE   3   HEN.    "J.  -  173 

manner  in  which  it  was  to  be  corrected  by  the  Court  of  Star  CfiAP.VI. 

Chamber,  are  fully  described  in  the  preamble  and  first  section 

of  3  Hen.  7,  c.  1,  "  The  King  our  said  sovereign  lord  remem- 

"  bereth  how  by  unlawful  maintenance,  giving  of  liveries,  signs, 

"  and  tokens,  and  retainders  by  indentures,  promises,  oaths, 

"  writings,  or  otherwise  embraceries  of  his  subjects,  untrue 

"  demeanings  of  sheriffs  in  making  of  panels  and  other  un- 

"  true  returns,  by  taking  of  money  by  juries,  by  great  riots 

"  and  unlawful  assemblies,  the  policy  and  good  rule  of  this 

"  realm  is  almost  subdued,  and  for  the  not  punishing  of  these 

"  inconveniences,    and   by  reason  of  the  premises,  little  or 

"  nothing  may  be  found   by  inquiry "   {i.e.  by   inquests    or 

juries),  "  whereby  the  laws  of  the  land  in  execution  may  take 

"  little  effect,  to  the  increase  of  murders,  robberies,  perjuries, 

"  and  unsureties  of  all  men  living,  and  losses  of  their  lands 

"  and   goods  to  the   great   displeasure   of  Almighty   God." 

"  Therefore  it  is  ordained  for  Keformation  of  the  Premisses 

"  by  authority  of  the  said  Parliament,  that  the  Chancellor 

"  and  Treasurer  of  England  for  the  time  being,  and  Keeper 

"  of  the  King's  Privy  Seal,  or  two  of  them,  calling  to  them 

"  a  bishop  and  a  temporal  lord  of  the  king's  most  honour- 

"  able   Council,  and   the  two   chief  justices  of  the  King's 

"  Bench  and  Common  Pleas  for  the  time  being,  or  two  other 

"  justices  in  their  absence,  upon  bill  or  information  put  to 

"  the  said  Chancellor  for  the  king  or  any  other  against  any 

"  person  for  any  misbehaviour  before  rehearsed,  have  authority 

"  to  call  before  them  by  writ  or  by  Privy  Seal  the  said  misdoers, 

"  and  them  and  other  by  their  discretion,  by  whom  the  truth 

"  may  be  known,  to  examine,  and  such  as  they  find  therein 

"  defective  to  punish  them  after  their  demerits,  after   the 

"  form   and  effect  of  statutes  thereof  made,  in  like  manner 

"  and  form  as  they  should  and  ought  to  be  punished  as  if 

"  they    were   thereof  convict    after    the   due    order   of  the 

"law." 

It  is  extremely  difficult  to  say  what  was  the  precise  object 
or  effect  of  this  statute.  Coke  seems  to  attribute  to  it 
no  other  effect  than  that  of  varying  the  procedure  of  the 
Star  Chamber  by  enabling  them  to  examine  defendants,  but 
this  seems  impossible,  both  because  (according  to  Hudson) 


174  LEGAL  EFFECT  OF  THE  STATUTE. 

Chap.  VI.  guch  was  the  regular  procedure  of  the  Court,  and  because 
that  procedure  does  not  appear  to  have  been  confined  after 
the  statute  to  cases  which  fell  within  it. 

1  Hudson  refers  to  the  subject  in  such  a  way  as  to  show 
that  at  one  time  it  was  a  moot  point  whether  the  Council 
had  any  criminal  jurisdiction  other  than  that  which  this 
statute  conferred  upon  them,  but  that  the  court  held  that  it 
had.  2 Lord  Bacon  says  of  the  statute  that  "the  authority 
"  of  the  Star  Chamber  which  before  subsisted  by  the  ancient 
"  common  laws  of  the  realm  was  confirmed  in  certain  cases 
"  by  it."  A  very  indefinite  remark,  accompanied  by  no  ex- 
planation of  the  reasons  for  such  an  enactment.  *Mr. 
Hallam's  opinion,  founded  upon  an  elaborate  examination  of 
the  authorities,  is  as  follows : 

1.  The  Court  erected  by  the  statute  of  Henry  VII.  was 
not  the  Court  of  Star  Chamber. 

2.  The  Court  by  the  statute  subsisted  in  full  force  till 
beyond  the  middle  of  Henry  VIII.'s  reign,  but  not  long 
afterwards  went  into  disuse. 

3.  The  Court  of  Star  Chamber  was  the  old  concilium 
ordinarium,  against  whose  jurisdiction  *many  statutes  had 
been  enacted  from  the  time  of  Edward  III. 

4.  No  part  of  the  jurisdiction  exercised  by  the  Star 
Chamber  could  be  maintained  on  the  authority  of  the 
statute  of  Henry  VII. 

On  so  very  obscure  a  subject  it  is  impossible  now  to  go 
beyond  conjecture.  My  conjecture,  offered  with  very  little 
confidence,  is  that  the  statute  was  meant  to  give  an  indis- 

1  P.  80.  "It  is  a  received  opinion  that  the  court  should  meddle  with  no 
' '  other  causes  than  are  expressed  in  the  statute  3  Hen.  7,  and  I  well  re- 
"  member  that  the  Lord  Chancellor  Egerton  would  often  tell  that  in  his  time, 
"  when  he  was  a  student,  Mr.  Serjeant  Lovelace  put  his  hand  to  a  demurrer  in 
"  this  court  for  that  the  matter  of  the  bill  contained  other  matters  than  were 
"  mentioned  in  the  statute  3  Hen.  7,  and  Mr.  Plowden,  that  great  lawyer, 
"  put  his  hand  thereto  first,  whereupon  Mr.  Lovelace  easily  followed.  But 
"  the  cause  being  moved  in  court,  Mr.  Lovelace  being  a  young  man,  was 
"  called  to  answer  the  error  of  his  ancient  Mr.  Plowden,  who  very  discreetly 
"  made  Ms  excuse  at  the  bar  that  Mr.  Plowden's  hand  was  first  unto  it,  and 
"  that  he  supposed  he  might  in  anything  foUow  St.  Augustine.  And  although 
"  it  were  then  overruled,  yet  Mr.  Serjeant  Richardson,  thu-ty  years  after,  fell 
"  again  upon  the  same  rock,  and  was  sharply  rebuked  for  the  same."  See  also 
the  case  of  Chambers,  3  St.  Tr.  380. 

'^  Sistory  of  Henry  VII.,  Bacon's  works,  by  Spedding,  vi.  85. 

3  Cons.  Hist.  i.  55,  note.  *  This  is  rather  an  overstatement. 


CRIMINAL  JURISDICTION   OF   COUNCIL.  175 

putable  statutory  authority  to  that  part  of  the  Star  Chamber  Chap.  VI. 
jurisdiction  which  appeared  at  the  date  of  the  statute  most 
important,  but  that  as  it  was  found  that  the  wider  authority  of 
the  old  court  was  acquiesced  in,  the  statute  fell  into  disuse. 
This  conjecture  is  strengthened  by  the  circumstance  that  the 
statute  of  Henry  VII.  is  silent  as  to  the  jurisdiction  of  the 
court  over  several  offences  which,  at  the  end  of  the  fifteenth 
century,  were  probably  of  comparatively  little  importance, 
but  which  in  the  sixteenth  and  the  beginning  of  the  seven- 
teenth century  gave  the  court  its  principal  value  in  the  eyes 
of  the  government.     Of  these,  libels  are  the  most  important. 

Whatever  may  be  the  true  explanation  of  these  matters 
there  can  be  no  doubt  at  all  as  to  the  nature  and  functions 
of  the  court  itself  The  jurisdiction  of  the  Chancellor  in 
civil  matters,  and  the  jurisdiction  of  the  Council  or  Star 
Chamber  in  criminal  matters,  grew  up  side  by  side.  Lord 
Bacon,  after  mentioning  the  common  law  courts,'  says, 
"  There  was  nevertheless  always  reserved  a  high  and  pre- 
"  eminent  power  to  the  king's  counsel  in  causes  that  might 
"  in  example  or  consequence  concern  the  state  of  the  Com- 
"  mon wealth;  which  if  they  were  criminal,  the  counsel  used 
"  to  sit  in  the  chamber  called  the  Star  Chamber;  if  civil, 
"  in  the  White  Chamber  or  White-hall.  And  as  the  Chancery 
"  had  the  praetorian  power  for  eqiiity,  so  the  Star  Chamber 
"  had  the  censorian  power  for  offences  under  the  degree  of 
"  capital." 

^  In  early  times  the  Council  was  accustomed  to  grant  to 
individuals  the  special  commissions  of  Oyer  and  Terminer 
under  the  Privy  Seal,  which  I  have  already  referred  to. 
When  such  commissions  were  forbidden  by  statute,  the 
Council  heard  such  cases  themselves,  they  compelled  appear- 
ance by  ^  writs  of  premunire,  and  afterwards  by  the  writ  of 
*  subpoena,  which  was  invented  in  Edward  III.'s  time  by  Sir 

1  Works,  vi.  85.  ^  Palgrave,  pp.  27-38. 

3  "  Edwardus,  &c.,  Vice  ooiuitibua  London,  salutem.  Quibusdam  certis  de 
"  causis  vobis  mandamus  firmiter  injungentes  quod  prismunirB  facialis 
"H.   C.   &c.,    quod  .  .  .  sit  .  .  .  coram   oonsilio  nostro,   &c."     Palgrave, 

note' 11,  p.  131.  .  .   .  ,   . 

^  "  Edwardus,  &c.,  K.  S.  salutem.  Tibi  praecipimiis  quod  sis  coram  consilio 
"nostro,  &c.  Et  hoc  sub  poena  centum  librarum  nullatenus  ommittas. " 
Palgrave,  p.  41. 


176 


CRIMES  PUNISHED    BY   COUNCIL. 


Chap.  VI.  John  de  Waltham  (afterwards  Bishop  of  Salisbury).  Sir 
Francis  Palgrave  compares  the  authors  of  these  writs  to  the 
forgotten  inventors  of  the  writs  of  ^  Latitat  and  Quo  Minus, 
by  which  the  Courts  of  King's  Bench  and  Exchequer 
usurped  civil  jurisdiction.  The  Star  Chamber  proceeded 
by  bill  and  answer,  and  administered  interrogatories  to  the 
accused  party,  whom  they  examined  upon  oath.  2  Hudson 
gives  several  instances  in  which,  without  exactly  trying 
people  for  common  offences,  such  as  treason  and  murder, 
they  inflicted  heavy  penalties  for  acts  which  might  have 
been  punished  at  common  law  under  those  denominations. 
The  Earl  of  Rutland,  for  instance,  was  fined .  £30,000  for 
being  concerned  in  the  Earl  of  Essex's  insurrection.  ^  "  And 
"  there  are  above  a  hundred  precedents  where  persons  that 
"  gave  countenance  to  felons  were  here  questioned."  In 
cases  "  pending  upon  felony  "  the  party  was  not  examined 
upon  oath. 

These,  however,  were  not  the  cases  which  commonly 
employed  the  Star  Chamber.  They  are  thus  enumerated 
by  *  Hudson  :  Forgery,  perjury,  riot,  maintenance,  fraud, 
libelling,  and  conspiracy.  Besides  these  ^  he  ascribes  to  the 
court  power  to  punish  offences  not  defined  or  punishable  at 
common  law,  and  ^  he  enumerates  some  instances  in  which 
jurisdiction  was  conferred  on  the  court  by  statutes  lono- 
since  forgotten. 

To  some  of  these  matters  I  shall  have  to  return  in  another 
part  of  this  work.  It  is  enough  for  the  present  to  say  that 
the  tyrannical  proceedings  for  political  offences  which  ulti- 
mately caused  the  abolition  of  the  court  ought  not  to  make 
us  forget  the  great  services  which  it  rendered,  not  only 
to  the  cause  of  good  order  but  to  the  law  of  the  country. 

^  The  writ  of  Latitat  affirmed  that  the  defendant  ought- to  be  in  the  custody 
of  the  Marshal  of  the  King's  Bench,  to  answer  for  a  trespass,  suggested  in  what 
was  called  a  Bill  of  Middlesex,  instead  of  which  he  "  latitat  et  discurrit  "  in 
some  county  other  than  Middlesex.  The  writ  of  Quo  Minus  stated  that  the 
defendant  being  a  Crown  debtor  owed  money  to  the  plaintiff,  whereby  he  was 
less  able  than  he  would  have  been  to  pay  his  debt  to  the  Ci-own — a  matter  for 
the  Exchequer.     (3  Black.  Oom.  284-2&6.) 

^  P.  e2.  3  P.  64. 

*  P.  71.  Bacon  (vi.  85)  mentions  four  "forces,  frauds,  crimes  various  of 
"  stellionate,  and  the  inchoation  or  middle  acts  towards  crimes  capital  or 
' '  heinous  not  actually  committed  or  perpetrated. " 

'  P.  107.  «  P.  113. 


CORRUPTION   OF  JURORS. 


177 


The  common  law  was  in  all  ways  a  most  defective  system.   CHAP.Vf. 

It  was  incomplete.     Its  punishments  were  capricious   and       

cruel.  Its  most  characteristic  institution,  trial  by  jury,  was 
open  to  abuse  in  every  case  in  which  persons  of  local  influence 
were  interested.  Juries  themselves  were  often  corrupt,  and 
the  process  of  attaint,  the  only  one  by  which  at  common  law 
a  false  verdict  could  be  impeached  or  corrupt  jurymen  be 
punished,  was  as  uncertain  and  as  open  to  corrupt  influences 
as  other  forms  of  trial  by  jury.  ' "  When  a  corrupt  jury," 
says  Hudson,  "had  given  an  injurious  verdict,  if  there  had 
"  been  no  remedy  but  to  attaint  them  by  another  jury,  the 
"  wronged  party  would  have  had  small  remedy,  as  is  mani- 
"  fested  by  common  experience,  no  jury  having  for  many 
"  years  attainted  a  former.  As  also  at  this  day  in  the  Prin- 
"  cipality  of  Wales,  if  a  man  of  good  alliance  have  a  cause 
"  to  be  tried,  though  many  sharp  laws  have  been  made  for 
"  favourable  panels,  yet  it  is  impossible  to  have  a  jury  which  - 
"  will  find  against  him,  be  the  cause  never  so  plain :  or  if 
"  arraigned  for  murder  he  shall  hardly  be  convicted,  although 
"  the  fear  of  punishment  of  this  court  carries  some  awful 
"  respect  over  them." 

According  to  our  modern  views,  the  proper  cure  for  such 
defects  would  be  intelligent  and  comprehensive  legislation  as 
to  both  crimes  and  criminal  procedure,  but  for  many  reasons 
such  an  undertaking  as  a  criminal  code  would  have  been 
practically  impossible  in  the  Tudor  period.  In  these  cir- 
cumstances, the  Star  Chamber,  not  merely  exercised  a  control 
over  influential  noblemen  and  gentlemen  which  put  a  stop 
to  much  oppression  and  corrupt  interference  with  the  course 
of  justice,  but  supplied  some  of  the  defects  of  a  system 
which  practically  left  unpunished  forgery,  perjury,  attempts 
and  conspiracies  to  commit  crimes,  and  many  forms  of  fraud 

and  force. 

In  the  later  stages  of  its  history  no  doubt  the  Court  of 
Star  Chamber  became  a  partisan  court,  and  punished  with 
cruel  severity  men  who  offended  the  King  or  his  ministers.  > 
Nothing  can  be  said  in  excuse  of  such  proceedings  as  those 
against  Prynne  or  Lilburne ;  but  it  is  just  to  observe  that  the- 

1  P.  14. 

VOL.    I.  N 


178  REPUTATION  OF  STAR  CHAMBER. 

Chap.  VI.  real  objection  made  was  to  the  punishment  of  the  acts  them- 
selves,  rather  than  to  the  cruelty  of  branding  or  whipping. 
The  punishments  inflicted  by  the  common  law  were  in  many 
cases  more  cruel  than  those  of  the  Star  Chamber,  yet  they 
seem  to  have  excited  no  indignation.  There  is  also  some 
reason  to  believe  that  the  cruel  punishments  inflicted  under 
Charles  I.  were  at  least  to  some  extent  an  innovation  on  the 
earlier  practice  of  the  court. 

It  is  curious  to  observe  the  degree  to  which  the  Court  of 
Star  Chamber  impressed  the  imagination  of  several  observers, 
one  of  whom  at  all  events  was  unlikely  to  flatter  it  at  the 
expense  of  the  courts  of  common  law,  though  it  may 
certainly  be  observed  of  all  that  they  seem  to  protest  too 
much  to  be  quite  sincere.  Bacon  ^  describes  it  as  "  one  of 
"  the  sagest  and  noblest  institutions  of  this  kingdom."  ^  Coke 
says,  "It  is  the  most  honourable  court  (our  parliament 
"  excepted)  that  is  in  the  Christian  world,  both  in  respect  of 
"  the  judges  of  the  court,  and  of  their  honourable  proceeding 
"  according  to  their  just  jurisdiction,  and  the  ancient  and 
"just  orders  of  the  court."  .  .  .  "This  court,  the  right 
"  institutions  and  ancient  orders  thereof  being  observed,  doth 
"keep  all  England  in  quiet."  ^ Hudson  becomes  quite 
enthusiastic  on  the  subject.  "  Since  the  great  Eoman  senate 
"so  famous  to  all  ages  and  nations  as  that  they  might  be 
"  called  jure  mirum  orbis,  there  hath  no  court  come  so  near 
"them  in  state  honour  and  judicature  as  this;  the  judges  of 

1   WorJcs,  vi.  85.  2  ith  Inst.  p.  65. 

'  P.  17.  His  enthusiasm  is  displayed  in  an  amusing  way  in  his  discussion 
of  the  ori^n  of  the  name  of  the  court  (p.  8).  "I  confess  I  am  in  that  point 
"  a  Platouist  in  opinion  that  'nomina  naturdfiwnt  potius  quam  vagd  impod- 
"  tione, '  for  assuredly  Adam  before  his  fall  was  abundantly  skilful  in  the  nature 
"  of  all  things  ;  so  that  when  God  brought  him  all  things  to  name  he  gave 
"  them  names  befitting  their  natures.  And  so  I  doubt  not  but  Camera 
"  Stellata  .  .  is  most  aptly  named  ;  not  because  the  Star  Chamber  is  so 
"  adorned  with  stars  gilded,  as  some  would  have  it,  for  surely  the  chamber  is 
' '  so  adorned  because  it  is  the  seal  (?  seat)  of  that  court ;  .  .  .  and  it  was  so  fitly 
"  called  because  the  stars  have  no  light  but  what  is  cast  upon  them  by  the  sun, 
"  by  reflection  being  his  representative  body  ;  and  as  his  royal  majesty  himself 
"  was  pleased  to  say,"— in  short  he  said  that  he  was  the  sun  and  the  judges  the 
stars,  but  his  majesty  and  Hudson  between  them  spin  out  this  conceit  much 
as  Lady  Margaret  Bellenden  spun  out  the  history  of  Charles  II. 's  breakfast 
at  Tillietudlem.  The  favourite  derivation  of  the  name  of  the  court  is  from 
the  Starrs  or  Jewish  charters  anciently  kept  there.  (See  Madox,  Exch.  i  237  ) 
The  Jews  were  expelled  in  Edward  I.'s  reign,  and  the  meaning  of  the  word 
"  starra  "  would  naturally  be  forgotten,  though  the  name  might  survive 


THE  STAR  CHAMBER  UNDER  THE  TUDORS.  1/9 

"  this  court  being  surely  in  honour,  state,  and  majesty,  learn-   Chap.  VI. 

"  ing,  understanding,  justice,  piety,  and  mercy  equal,  and  in 

"many  exceeding  the  Roman  senate  by  so  much,  by  how 

"much   Christian  knowledge   exceedeth   human    learning." 

After  giving  a  long  and  curious  account   of  the  authority 

of  the  Chancellor  as  chief  judge  of  the  court,   ^he  says: 

"  As  concerning  the  great  and  eminent  officers  of  the  king- 

"  dom,  the  Lord  Treasurer,  Privy  Seal,  and  President  of  the 

"  Council,  their  places   or  voices  in  this   court  when  the 

"superior  sitteth  are  of  no  more  weight  than  any  other  of 

"  the  table ;  so  that  the  displeasure  of  a  great  officer  cannot 

"  much  amaze  any  suitor,  knowing  it  is  but  one  opinion,  and 

"the   court  is  not    alone    replenished  with    noble    dukes, 

"marquises,  earls,  and  barons,  which  hereby  ought  to  be 

"frequented  with  great  presence   of   them,  but  also  with 

"reverend    archbishops   and   prelates,   grave   counsellors   of 

"  state,  just  and   learned   judges,   with  a  composition  for 

"justice,  mercy,  religion,  policy,  and   government,  that  it 

"  may  be  well  and  truly  said  that  Mercy  and  Truth  are  met 

"  together.  Righteousness  and  Peace  have  kissed  each  other." 

He  adds  that  in  the  reigns  of  Henry  VII.  and  Henry  VIII. 

the  number   of  members  present  was   at    times  thirty  or 

even  forty,  as  also   in  the  time   of  Elizabeth,  "but   now 

"much  lessened  since  the  barons  and  earls  not  being  privy 

"councillors    have    forborne   their    attendance."      He    also 

remarks  that  in  the  time  of  Henry  VII.  and  Henry  VIII. 

the  punishments  were  far  less  severe  than  afterwards,  the 

fines  being  imposed  with  due  regard  to  the  "  salvo  contenemento 

suo"  of  Magna  Charta,  and  2"  the    slavish   punishment  of 

"whipping"   not    having    been    introduced    "till  a    great 

"  man — of  the  common  law  and  otherwise  a  worthy  justice 

"  forgot  his  place  of  session,  and  brought "  (?  it)   "  in  this 

"  place  too  much  in  use." 

This  curious  passage  seems  to  show  that  under  the  Tudors 
the  Star  Chamber  was  a  numerous  and  comparatively  mild 

2  The  words  in  the  printed  book  are  "the  slavish  speech  of  whispering," 
which  is  nonsense.  Hallam  makes  the  emendation  given  in  the  text  upon 
the  authority  of  a  MS.  in  the  British  Museum.  (See  Hallam,  Cons.  Hist.  li. 
p.  34,  ed.  1865.) 

N    2 


i8o 


PRIVY  COUNCIL  AS  APPELLATE   COURT  IN   CRIMINAL   CASES. 


Chap.  vr.  body,  resembling   in   its    constitution    and    proceedings    a 
deliberative  council  rather  than  an  ordinary  court  of  justice, 
and   that   the   proceedings  which  led  to  its  abolition   and 
made  its  name  infamous  were  carried  on  at  a  time  when 
'  it  had  come  to  consist  of  a  small  number  of  what  we  should 

call  cabinet  ministers,  who  abused  its  powers  to  put  down 
opposition  to  their  policy.  It  is  unnecessary  to  refer  in 
detail  to  the  well-known  instances  of  this  abuse  which  led 
to  the  abolition  of  the  court,  though  I  have  noticed  some 
of  them  1  elsewhere. 

Although  the  Court  of  Star  Chamber,  and  with  it  the' 
most  important  judicial  powers  of  the  Council,  were  abolished 
in  1640,  one  degree  of  criminal  jurisdiction  still  remained  in 
and  is  actually  exercised  at  this  day  by  the  Privy  Council. 
Whatever  may  be  the  law  as  to  the  power  of  the  sovereign 
to  establish  new  courts  of  justice  in  England  by  charter — 
a  power  which  if  it  exists  is  never  exercised  or  likely  to  be 
exercised  except  under  the  provisions  of  acts  of  parliament 
(as  for  instance,  when  a  borough  is  created  with  a  new 
Court  of  Quarter  Sessions  under  the  statutory  provisions 
already  referred  to),  it  is  the  undoubted  prerogative  of  the 
crown  to  establish  courts  of  justice  in  any  possessions 
which  it  may  acquire  beyond  the  realm,  either  by  conquest 
or  by  settlement,  and  an  appeal  lies  from  such  courts  to 
the  sovereign,  unless  it  is  taken  away  either  by  statute  or 
charter.  An  appeal  to  the  King  also  lay  from  all 
ecclesiastical  courts,  and  from  the  Court  of  Admiralty. 
These  last  mentioned  appeals  were  made  by  virtue  of  25 
Hen.  8,  c.  19,  and  8  Eliz.  c.  5,  to  "the  King's  Majesty  in 
the  King's  Court  of  Chancery,"  and  were  heard  by  a  body  of 
delegates  named  by  commission  for  that  purpose.  By  2  &  3 
Will.  4,  c.  92,  the  appeal  in  such  cases  has  to  be  made 
to  the  'King  in  Council,  and  by  3  &  4  Will.  4,  c.  41,  all 
such  appeals,  and  also  all  appeals  "  from  various  Courts  of 
"  Judicature  in  the  East  Indies,  and  in  the  plantations, 
"  colonies,  and  other  dominions  of  his  Majesty  abroad " 
were  to  be  heard  before  a  body  called  the  Judicial  Committee 
of  the  Privy  Council,  which  was  constituted  by  the  act 
1  See  p.  338,  post. 


CASE  OF  R.   V.   BERTEAND.  lol 

In  question  in  place  of  a  committee  of  the  whole  of  the  Chap.  VI. 
Privy  Council,  before  which  it  had  up  to  that  time  been 
customary  (as  the  act  recites)  to  hear  such  appeals. 

The  right  to  hear  appeals  in  criminal  as  well  as  in  civil 
matters  from  all  Her  Majesty's  dominions  beyond  the  seas, 
in  all  cases  in  which  that  right  has  not  been  expressly  taken 
away,  has  been  solemnly  affirmed  and  exercised  in  a  series 
of  very  modern  cases.  The  principle  is  laid  down  m  the 
case  of  ^  R.  v.  Bertrand  in  which  Sir  J.  T.  Coleridge  in 
delivering  judgment  said  :  "  Upon  principle  and  reference  to 
"  the  decisions  of  this  committee  it  seems  imdeniable  that 
"  in  all  cases,  criminal  as  well  as  civil,  arising  in  places  from 
"  which  an  appeal  would  lie,  and  where,  either  by  the  terms 
"  of  a  charter  or  statute,  the  authority  has  not  been  parted 
"  with,  it  is  the  inherent  prerogative  right,  and  on  all  proper 
"  occasions  the  duty  of  the  Queen  in  Council  to  exercise  an 

"  appellate  jurisdiction But  the   exercise  of  this 

"  prerogative  is  to  be "  regulated  by  a  consideration  of 
"  circumstances  and  consequences  ;  and  interference  by  Her 
"  Majesty  in  Council  in  criminal  cases  is  likely  in  so  many 
"  instances  to  lead  to  mischief  and  inconvenience  that  in  them 
"  the  crown  will  be  very  slow  to  entertain  an  appeal  by  its 
"  officers  on  behalf  of  itself  or  by  individuals.  The  instances 
"  of  such  appeals  being  entertained  are  therefore  very  rare." 
Many  cases  are  referred  to  in  this  report,  by  which  the 
conclusion  quoted  is  fully  established.  It  is  remarkable 
that  the  ^  earliest  of  them  was  decided  so  lately  as  in  the 
year  1835,  and  it  does  not  appear  from  the  report  that  the 
question,  Whether  the  court  had  any  such  jurisdiction  or  not 
was  raised  on  that  occasion;  the  jurisdiction  has  been 
exercised  sparingly  no  doubt,  but  on  several  very  recent 
occasions.^  This  jurisdiction  is  so  narrowly  limited,  and 
so  rarely  exercised  that  it  has  been  little  noticed  by  writers 

1  L.E.  1  P.O.  529.  In  this  case  the  question  was  discussed  whether  a  new 
trial  in  cases  of  felony  could  be  granted  at  common  law. 

2  Pooneakhoty  Modeliar  v.  The  King,  3  Knapp,  348. 

^  See  e.  g.  K.  v.  Burah,  L.R.  3-App.  Cases,  889,  in  which  the  question  was 
as  to  the  extent  of  the  legislative  powers  of  the  government  of  India;  R.  ii. 
Mount,  L.R.  6  P.O.  283,  in  which  the  question  was  as  to  the  sentence  to  be 
passed  by 'ail  Australian  court  in  its  Admiralty  jurisdiction. 


1 82  ■  SUMMARY   OF   HISTORY. 

Chap.  VI.  on  criminal  procedure.  In  a  historical  point  of  view  it 
is  one  of  the  most  remarkable  parts  of  the  whole  system, 
for  it  connects  the  common  administration  of  justice  in  our 
own  days  with  the  Curia  Regis  through  the  Court  of  Star 
Chamber. 

In  a  few  words  the  result  of  the  history  just  related  at 
length  is  as  follows  : 

From  the  most  remote  antiquity  the  administration  of 
justice  was  the  highest  or  one  of  the  highest  prerogatives 
of  the  sovereigns  of  this  country,  and  his  council  or  court 
was  the  organ  by  which  that  prerogative  was  exercised. 

The  original  council  or  court  was  divided  in  course  of 
time  into  the  Court  of  King's  Bench,  the  Court  of  Common 
Pleas,  and  the  Court  of  Exchequer,  each  of  which  had 
originally  its  .own  peculiar  province  but  each  of  which 
contrived  to  intrude  to  some  extent  upon  the  province  of 
the  other  two,  the  three  between  them  administering  the 
known  and  well  recognised  law  of  the  land. 

By  the  side  of  this  comparatively  well-defined  jurisdiction, 
grew  up  by  degrees  the  equitable  jurisdiction  (as  it  came 
to  be  called)  of  the  Lord  Chancellor,  and  the  judicial 
authority,  both  civil  and  criminal,  of  the  Council  itself  or 
Court  of  Star  Chamber.  The  jurisdiction  of  the  Chancellor 
being  by  experience  found  to  be  beneficial,  and  being  wisely 
and  justly  used,  was  the  foundation  of  the  great  Court  of 
Chancery  and  of  that  part  of  our  law  or  jurisprudence  which 
goes  by  the  name  of  equity.  The  judicial  authority,  civil 
and  criminal,  of  the  Council  or  Star  Chamber  being  used 
oppressively  for  political  purposes,  was  destroyed.  After  its 
destruction,  however,  the  authority  of  the  sovereign  extended 
itself  over  a  vast  empire,  including  the  whole  of  India,  a 
great  part  of  North  America,  Australia,  New  Zealand,  the 
Gape,  and  many  other  places,     i  The  ancient  prerogative  of 

1  The  extreme  difficulty  of  saying  precisely  how  far  the  prerogative  of  the 
sovereign  as  fountain  of  justice  extends,  and  at  what  point  the  power  of  the  Kine 
to  erect  courts  of  justice  ends,  is  well  illustrated  by  the  discussions  which  arose 
some  years  since  as  to  the  validity  of  those  clauses  in  the  patents  of  certain 
colonial  bishops,  which  purported  to  give  some  of  them  jurisdiction  over 
others.  The  question  was  fully  argued  before  the  Judicial  Committee  of  the 
Privy  CounoU  m  the  matter  of  the  Kishop  of  Natal.  One  point  raised  durine 
that  argument  was  as  follows  :   It  was  urged  that  the  view  contended  for  by 


POWER  OF  PRIVY   COUNCIL  TO   COMMIT.  1 83 

the   crown  as  the   fountain   of  justice  was  held  to  vest  in  chap.vi. 

It  the  ultimate  appeal  in  all  cases,  civil  and  criminal,  from       

all  courts  in  these  vast  territories,  and  a  committee  of  the 
Privy  Council,  which  is  the  direct  descendant  of  the  old 
Curia  Kegis,  is  to  this  day  the  organ  by  which  that  prerogative 
is  administered. 

In  concluding  this  account  of  the  criminal  jurisdiction  of 
the  Privy  Council  I  must  mention  their  powers  as  commit- 
ting magistrates.  From  the  earliest  times  they  have  exercised 
the  power  of  inquiring  into  criminal  charges  and  committing 
suspected  persons  for  trial.  "The  power  of  the  Privy 
"  Council,"  says  Blackstone,  ^  "  is  to  inquire  into  all  offences 
"  against  the  government  and  to  commit  the  offenders 
"  to  safe  custody,  in  order  to  take  their  trial  in  some  of 
"  the  courts  of  law."  For  a  great  length  of  time  this  was 
the  common  course  in  regard  to  all  political  offences,  but 
now  it  is  usual  to  send  even  political  offenders  before  a 
magistrate  to  be  dealt  with  in  the  ordinary  way.  When 
Oxford  shot  at  the  Queen  he  was  examined  in  the  first 
instance  before  the  Privy  Council,  but  was  afterwards  sent 
before  a  police  magistrate.  Maclean,  who  committed  the 
same  offence  in  1882,  was  not  brought  before  the  Privy 
Council  at  all,  but  >  was  committed  in  the  common  way  by 
the  borough  magistrates  at  Windsor. 

the  counsel  for  the  Bishop  of  ITatal  involved  the  absurd  conclusion  that  he 
was  subject  to  no  jurisdiction  at  all.  To  this  his  counsel  answered  that  the 
crown  could  issue  a  commission  to  try  him.  It  was  replied  tliat  this  would  be 
contrary  to  the  statute  (16  Chas.  1,  c.  11,  s.  5)  by  which  the  High  Commission 
Court  was  abolished  and  the  foundation  of  similar  courts  forbidden  for  the  future. 
It  was  rejoined  that  such  a  construction  of  the  ^atute  would  involve  the 
absurd  result  that  if  the  Archbishop  of  Canterburyfwere  to  commit  an  eccle- 
siastical offence  he  could  not  be  tried  at  all,  for  /be  could  not  try  himself  in 
his  own  court,  and  there  was  no  other  to  try  him,  unless  the  Queen  could  issue 
a  commission  for  that  purpose.  The  counsel  agairist  the  Bishop  of  ITatal 
attempted  to  rebut  this  argument  in  different  ways.  Sir  Robert  Phillimore 
suggested  that  in  such  a  case  the  archbishop  might  be  tried  by  a  general 
council  of  the  church  (which  was  directly  opposed  to  the  royal  supremacy) 
and  Lord  Cairns  (then  Sir  Hugh  Cairns)  suggested  that  he  might  be  impeached 
in  parliament,  which  again  seems  a  singular  mode  of  proceeding  in  an  eccle- 
siastical case,  though  no  doubt  there  were  precedents  for  it  in  the  reign  of 
Charles  I. 

2  1  Black.  Com.  230. 


184  PROCEDURE  TO   COMMITTAL   FOR   TRIAL. 


CHAPTER    VII. 

HISTORY   OP   THE   LAW   OF   CRIMINAL    PROCEDURE. — PRO- 
CEDURE DOWN  TO   COMMITTAL  FOR  TRIAL   OR  BAIL. 

Ch.  vii.  Having  in  the  last  chapter  traced  the  history  of  the 
courts  of  a  criminal  jurisdiction,  I  now  proceed  to  the  history 
of  the  procedure  followed  for  the  punishment  of  criminals. 
I  shall  give  the  history  of  each  step  in  the  procedure  sepa- 
rately, and  I  intend  in  the  present  chapter  to  treat  of  the 
procedure  from  the  arrest  of  the  offender  to  his  discharge  or 
committal  for  trial.  This  consists  of  two  stages,  namely,  the 
apprehension  of  the  offender,  closely  connected  with  which  is 
the  law  as  to  the  suppression  of  offences,  and  the  preliminary 
investigation  before  a  magistrate, which  results  in  the  discharge, 
or  committal  for  trial,  or  bailing  of  the  supposed  offender. 

In  each  case,  the  law  itself  was  as  a  matter  of  fact  sub- 
sequent to  the  establishment  of  the  officers  or  courts  by 
which  it  was  carried  into  execution.  Also,  in  each  case,  after 
the  practice  of  the  officers  or  courts  had  gradually  formed 
the  law,  alterations  were  made  by  statute  both  in  the  law 
itself  and  as  to  the  officers  and  courts  by  whom  it  was 
to  be  administered. 

^THE  APPREHENSION  OF  OFFENDERS  AND  SUPPRESSION  OF 
OFFENCES. 

I  have  described  above  the  system  for  the  apprehension  of 
offenders  and  the  prevention  of  crime  which  existed  down 
to  the  time  of  William  the  Conqueror  and  his  sons. 

The  foundation   of   the  whole   system   of   criminal   pro- 

^  As  to  existing  laws  of  arrest,  see  Dig.  Grim.  Proc.  ch.  xii.  arts.  96-98. 


EARLY  POLICE.  I  85 

cedure  was  the  prerogative  of  keeping  the  peace,  which  is  Ch.  vil. 
as  old  as  the  monarchy  itself,  and  which  was,  as  it  still  is, 
embodied  in  the  expression,  "  The  King's  Peace,"  the  legal " 
name  of  the  normal  state  of  society.  This  prerogative  was 
exercised  at  all  times  through  officers  collectively  described 
as  the  1  Conservators  of  the  Peace.  The  King  and  certain 
great  officers  (the  chancellor,  the  constable,  the  marshal,  the 
steward,  and  the  judges  of  the  King's  Bench)  were  con- 
servators of  the  peace  throughout  England,  but  the  ordinary 
conservators  of  the  peace  were  the  sheriff,  the  coroner, 
the  justices  of  the  peace,  the  constable,  each  in  his  own 
district.  During  the  reigns  of  Henry  II.,  Kichard  I.,  John, 
Henry  III.,  and  Edward  I.,  the  system  administered  by  these 
authorities  (with  the  exception  of  the  justices  of  the  peace, 
who  were  not  established  till  the  reign  of  Edward  III.)  was 
elaborated  and  rendered  more  stringent  than  it  had  been 
before  the  Conquest  by  a  long  series  of  enactments. 

The  first  of  these  was  the  ^  Assize  of  Clarendon  issued  by 
Henry  II.  in  1166,  just  100  years  after  the  Conquest.  It 
was  re-issued  as  the  ^Assize  of  Northampton  in  1176,  jn  the 
form  of  instructions  to  the  six  "  committees  of  judges  who 
"  were  to  visit  the  circuits  then  marked  out."  The  provisions 
of  the  Assize  of  Clarendon  bear  more  directly  on  the  present 
subject  than  those  of  the  Assize  of  Northampton. 

*The  Assize  provided  that  the  sheriffs  and  justices  should 
make  inquiry  upon  the  oath  of  twelve  men  from  every  hundred 
and  four  men  from  every  township  whether  any  man  in  any 
township  was  ^a  robber,  murderer,  or  thief,  or  a  receiver  of 
robbers,  murderers,  or  thieves ;  that  every  person  so  accused 
should  be  taken  and  brought  before  the  sheriffs  and  by  them 
before  the  justices,  and  that  no  lord  of  a  franchise  *  "  nee  m 
"  honore  etiam  de  Wallingeford  "  should  interfere  to  prevent 
the  sheriff  from  entering  his  franchise  either  to  arrest  accused 

'■  On  the  conservators  of  the  peace,  see  FitzHerbert,  Justices  of  the 
Peace,  6  B.  ;  Coke,  'ind  Inst.  538  ;  a  large  collection  of  authorities'  in  Bum's 
Justice,  title  "Justices  of  the  Peace ;"  Hawkins,  Pleas  of  the  Crown,  hk.  ii. 
ch.  viii.  vol.  ii.  p.  38,  edition  of  1814 ;  but  the  best  and  most  instructive 
account  of  the  matter  is  to  be  found  in  the  oelebrnted  judgment  of  Lord 
Camden  in  Entick  v.  Carrington  (the  case  of  the  seizure  of  papers), 
I'd  St.  Trials,  IQ^O.      See  alsoaate,  p.  110,  &c. 

2  Stubbs,  Charters,  140-146.  ^  /j   150-I53.  *  Arts.  2,  4. 

'  "Eobator  vel  murdrator  vel  latro."  ^  Arts.  9-11. 


i86 


ASSIZE   OF   ARMS. 


Cn.  VII.  persons  or  to  examine  the  frank  pledges  and  see  that  every 
'  one  was  a  member  of  a  frank  pledge.  The  Assize  of  North- 
hampton 1  enacts  ainongst  other  things  that  every  robber  on 
being  taken  is  to  be  delivered  to ,  the  custody  of  the  sheriff, 
and  in  his  absence  to  be  taken  to  the  nearest  "  castellanus  " 
to  be  kept  by  him  till  he  is  delivered  to  the  sheriff.  The 
Assize  also  provides  (art.  2)  that  no  one  is  to  be  allowed  to 
entertain  any  guest  in  his  house,  either  in  a  town  or  in  the 
country  (neque  in  burgo  neque  in  villa),  for  more  than  a  night 
unless  the  guest  has  some  ^  reasonable  excuse  which  the  host 
is  to  show  to  his  neighbours,  and  when  the  guest  leaves,  he 
must  do  so  in  the  presence  of  neighbours  and  by  day. 

By  the  'Assize  of  Arms,  issued  in  1181,  every  one  was 
bound  to  have  certain  arms  according  to  his  property. 
The  justices,  on  their  eyre,  were  to  make  the  representatives 
of  air  hundreds  and  towns  swear  to  give  in  a  return 
showing  the  property  of  all  persons  in  the  neighbourhood, 
and  which  of  them  had  the  arms  which,  according  to 
their  property,  they  were  bound  to  have.  Those  who  had 
not  such  arms  were  to  be  brought  before  the  justices  to 
swear  to  have  them  by  a  given  day,  and  "justitiae  facient 
"  dici  per  omnes  comitatus  per  quos  ituras  sunt,  quod  qui 
"  h£ec  arma  non  habuerint  secundum  quod  prsedictum  est, 
"  dominus  rex  capiet  se  ad  eorum  membra  et  nullo  modo 
"  capiet  ab  eis  terram  vel  catallum." 

The  main  object  of  these  provisions  no  doubt  was  to 
provide  a  military  force;  but  they  were  also  intended  to 
give  the  local  authorities  the  means  of  suppressing  violent 
crimes,  for  the  persons  so  armed  formed  the  power  of  the 
county  (posse  comitatus),  which  it  was  the  duty  of  the  sheriff 
in  case  of  need  to  raise  by  hue  and  cry. 

This  is  set  in  a  striking  light  by  a  *  passage  in  Bracton, 
which  describes  the  steps  to  be  taken  on  opening  a  commis- 
sion of  eyre  by  the  justices  in  eyre.  The  representatives  of 
the  county  having  been  convened,  the  justices  were  to  make 

1  Art. '12  ;  Stubbs,  Charters,  152. 

^  "Essonium,"  this  is  the  technical  word  for  the  excxises  given  for  not 
taking  a  step  in  procedure,  e.g.  for  not  appearing  on  being  summoned  in  an 
action.  3  Stubbs,  Charters,  154. 

*  Bracton,  iii.  1,  vol.  ii.  p.  235-237  (Twiss's  edition). 


HUE  AND   CRY. 


187 


a  speech  to  them.     "  In  the  first  place,  concerning  the  peace    Ch.  VII. 

"  of  our  Lord  the  King,  and  the  violation  of  his  justice  by 

"  murderers,  robbers,  and  burglars,  who  exercise  their  malice 

"  by  day  and  by  night,  not  only  against  men  travelling  from 

"  place  to  place,  but  against  men  sleeping  in  their  beds,  and 

"  that  our  Lord  the  King  orders  all  his  faithful  subjects,  by 

"  the  faith  which  they  owe  to  him,  and  as  they  wish  to 

"  preserve  their  own,  to  give  effectual  and  diligent  counsel 

"  and  aid  to  the  preservation  of  peace  and  justice  and  to  the 

"  taking  away  and  repression  of  the  malice  of  the  aforesaid." 

The  principal  persons  are  then  to  be  taken  apart,  and  are  to 

be  privately  informed  "  that  all  persons  of  fifteen  years  of 

"  age  and  upwards,  as  well  knights  as  others,  must  swear 

"  that  they  will  not  receive  outlaws,  murderers,  robbers,  or 

"  burglars,  nor  consent  to  them,  nor  to  those  who  receive 

"  them,  and  that  if  they  know  of  such  persons,  they  will 

"  cause  them  to  be  attached,  and  give  information  to  the 

"  sheriffs  and  bailiffs,  and,  if  hue  and  cry  is  raised  upon 

"  them,  will,  as  soon  as  they  hear  the  cry,  follow  with  their 

"  households  and  the  men  of  their  land."     If  the  criminal 

is  not  taken  on  the  spot,  he  is  to  be  tracked.     "  Let  them 

"  follow  the  track  through  their  own  land,  and  at  the  end 

"  of  their  own  land  show  it  to  the  lord  of  the  next  land,  and 

"  thus  let  pursuit   be  made  from  land  to  land "   (township 

to  township)  "  with  all  diligence  till  the  criminals  are  taken, 

"  and  let  there  be  no  delay  in  following  the  track  unless  a 

"  difiSculty  arises  by  the  coming  on  of  night,  or  by  other 

"  reasonable  cause,  and  they  must,  according  to  their  power, 

"  arrest  those  whom   they  suspect  without  waiting  for  the 

"  orders  of  the  justice  or  the  sheriff,  and  must  inform  the 

"  justices  and  sheriffs  of  what  they  have  done.     They  must 

"  also  swear  that  if  any  one  comes  into  any  village  or  town 

"  or  elsewhere  to  buy  bread  or  beer  or  other  victuals,  and  is 

"  suspected  of  doing  so  for  the  use  of  criminals,  they  will 

"  arrest  him  and  deliver  him,  when  he  is  arrested,  to  the 

"  sheriff  or  his  bailiffs.     They  must  also   swear  that  they 

"  will  take  in  no  one  as  a  guest  in  their  houses  by  night, 

"  unless  he  is  well  known,  and  that  if  they  entertain  any 

"  unknown  person  they  will  not  permit  him  to  leave  on  the 


I  88  STATUTE  OF  WINCHESTER. 

.Ch.  VII.    "  morrow  before  it  is  clear  daylight,  and  that  in  the  presence 
"  of  three  or  four  of  their  nearest  neighbours." 

Bracton  wrote  in  the  reign  of  Henry  III.  In  the  time 
of  Henry's  son  and  successor  the  system  embodied  in  these 
enactments  reached  its  highest  point  of  strictness.  This 
appears  from  the  provisions  of  the  Statute  of  Winchester 
(13  Edw.  1,  St.  2,  c.  1,  2,  4,  5,  6),  passed  in  1285.  ^  This 
statute  enacts  (ch.  2)  that  when  a  robbery  is  committed 
the  hundred  shall  be  answerable  unless  the  robbers  are 
apprehended  within  forty  days,  that  in  all  walled  towns  the 
gates  shall  be  shut  from  sunset  to  sunrise,  that  a  watch 
should  be  set  at  each  gate,  and  "  that  no  man  do  lodge  in 
"  suburbs  from  nine  of  the  clock  until  day  without  his  host 
"  will  answer  for  him."  All  strangers  passing  the  watch  at 
night  are  to  be  arrested  till  morning.  All  roads  are  to  be 
cleared,  "  so  that  there  be  neither  dyke,  underwood,  nor 
"  bush  whereby  a  man  may  lurk  to  do  hurt "  within  200 
feet  on  each  side  of  the  road.  Lastly,  every  man  is  to  "  have  in 
"  his  house  harness  to  keep  the  peace  after  the  ancient  assize" 
(the  Assize  of  Arms).  The  arms  were  to  be  viewed  twice 
a  year  by  constables  chosen  for  that  purpose,  who  were  to 
present  defaulters  to  the  justices.  The  sheriffs  and  bailiffs 
were  to  follow  the  cry  with  proper  horses  and  armour 
whenever  it  might  be  raised. 

By  this  time  frank  pledge  must  have  become  obsolete. 
The  Statute  of  Winchester  makes  no  mention  of  it,  nor 
does  the  Statutum  Wallise,  nor  indeed  does  any  other 
statute  with  which  I  am  acquainted  treat  it  as  an  actually 
existing  institution  for  keeping  the  peace.  The  name  in- 
deed continued  and  still  exists.  The  view  of  the  frank 
pledge,  that  is  to  say,  the  verification  of  the  fact  that  the 
frank  pledges  were  in  full  efficiency,  and  that  every  one 
belonged  to  such  a  body,  was  anciently  one  of  the  most  im- 
portant duties  of  the  county  and  hundred  courts  and  the 
courts    leet.      Hence,   as   the   county  and   hundred   courts 

^  This  enar.tment  was  followed  by  others,  e.g.  9  Geo.  1,  c.  22,  s.  7  (the 
Black  Act),  which  in  particular  cases  rendered  the  hundred  liable  for  damages 
inflicted-  by  criminals.  They  were  all  repealed  by  7  &  8  Geo.  4,  c.  27. 
There  are,  however,  still  one  or  two  cases  in  which  such  a  liability  is  imposed 
by  7  &  8  Geo.  4,  c.  31.     These  relate  to  damages  caused  by  rioters. 


LAW   OF  SUMMARY  ARREST.  1 89 

were  disused,  the  expression  "the  view  of  frank  pledge"  Ch.  vil. 
came  to  be  synonymous  with  "court  leet."  The  chief  '  " 
business  transacted  in  these  views  of  frank  pledge  or  courts 
leet  was  the  presentment  of  petty  nuisances,  and  especially 
the  "assiza  panis  et  cerevisiae,"  violatious  by  bakers  and 
brewers  of  rules  as  to  the  quality  of  their  bread  and  beer. 
It  is  in  this  sense  that  frank  pledge  is  referred  to  in  the 
^Parliament  Rolls,  and  that  the  expression  is  used  by 
Coke.  The  "Statute  for  View  of  Frank  Pledge"  (18 
Edw.  2,  A.D.  1325)  specifies  thirty-four  such  articles  as  to 
which  stewards  were  to  inquire  in  their  leets. 

Shortly  the  system  just  described  was  as  follows.  Upon 
the  commission  of  a  felony  any  one  might  arrest  the  offender, 
and  it  was  the  duty  of  any  constable  to  do  so.  If  the 
offender  was  not  arrested  on  the  spot,  hue  and  cry  might  and 
ought  to  be  raised.  The  sheriff  and  constables  from  the 
earliest  times,  the  justices  of  the  peace  from  the  beginning 
of  the  reign  of  Edward  III.,  were  the  officers  by  whom  the 
cry  was  to  be  raised.  In  order  to  render  the  sj'stem  effec- 
tive, every  one  was  bound  to  keep  arms  to  follow  the 
cry  when  required,  all  towns  were  to  be  watched  and  the 
gates  shut  at  night,  and  all  travelling  was  put  under  severe 
restrictions. 

The  Assize  of  Arms  and  the  ^  Statute  of  Winchester  fell  into 
disuse,  but  the  right  of  summary  arrest  in  cases  of  felony 
continues  to  this  day  to.  be  the  law  of  the  land,  and  though 
!  the  sheriff's  personal  intervention  in  the  matter  has  practi- 
cally fallen  into  disuse,  the  justices,  and  the  constable  are  still 
the  authorities  by  whom  the  system  is  worked. 

One  great  alteration  was  made  in  the  system  just  de- 
scribed between  the  fourteenth  and  the  seventeenth  centuries. 
During   that    period,  summonses  and  warrants    superseded 

i  Seee.g.  a  petition  in  1377  (1  Eiohard  II.) :  "Item suppliont  les  ditz  com- 
"  muns  q  les  Srs  qui  onnt  letters  et  vie  we  de  frank  plegg"  q.'ils  faient  due 
"  punissement  as  Taverners  de  vins  si  avant  come  des  autres  vitailles."  The 
answer  is,  "  II  n'est  mye  article  de  veue  de  frank  plegge  mais  en  soit  usee 
"  comead  estee  fait  resonablement  avant  ces  henres."  3  Sot.  Par.  19  •'  and 
see  ith  Inst..  261. 

2  The  Statute,  of  Winchester  is  not  mentioned  in  Coke's  2m^  Institute,  and 
though  it  was  not  repealed  till  1828,  it  had  for  centuries  before  that  time  been 
o-reatly  neglectedi     See  Harrington's  OMervatioTis  OTk' th:&  Statutes,  y.  146.-  - 


igO  JUSTICES  OF  THE  PEACE. 

Ch.  VII.  the  old  hue  and  cry  which  practically  fell  into  disuse.  The 
history  of  this  substitution  is  curious. 

Justices  of  the  peace  were  first  instituted  in  1326.  Their 
duties  were  described  in  the  most  general  terms.  They  were 
by  1  Edw.  3,  c.  16,  "  assigned  to  keep  the  peace."  By 
34  Edw.  3,  c.  1  (1360),  they  were  empowered  "  to  take  and 
"  arrest  all  those  they  may  find  by  indictment  or  suspicion 
"  and  put  them  in  prison."  But  neither  in  these  nor  any 
other  early  statute  with  which  I  am  acquainted  is  there  any 
provision  which  enables  them  directly  to  take  an  information 
as  to  the  commission  of  a  crime  and  issue  a  summons  or 
warrant  for  the  apprehension  of  the  suspected  person. 

The  statutes  above  quoted  give  them  no  other  authority 
for  the  apprehension  of  offenders  than  was  by  the  common 
law  inherent  in  every  constable  and  indeed  in  every  private 
person.  By  degrees,  however,  the  practice  of  issuing 
warrants  came  into  use.  The  general  ■  authority  of  the 
justices  in  all  matters  relating  to  crime  and  indeed  to  the 
whole  internal  government  of  the  country  was  firmly  esta- 
blished by  a  great  variety  of  statutes,  and  it  would  be  natural 
that  their  directions  should  be  taken  when  a  crime  was  com- 
mitted. It  would  also  be  more  natural  for  the  justice  to 
authorise  the  constable  to  undertake  the  actual  arrest  of  the 
offenders  than  to  do  it  himself,  and  it  might  often  be  con- 
venient, if  a  suspected  person  was  to  be  searched  for  in  more 
directions  than  one,  to  give  written  authority  to  various  persons 
for  the  purpose. 

This  would  be  specially  convenient  in  the  case  of  a 
hue  and  cry.  If  offenders  were  to  be  followed  from  township 
to  township,  the  different  constables  of  each  being  required  to 
join,  a  written  authority  from  a  known  public  officer  like  a 
justice  of  the  peace  would  be  a  great  convenience.  The 
phrase  ^ "  grant  a  hue  and  cry  "  was  apparently  in  common  use 
in  the  seventeenth  century  for  granting  a  warrant,  but  the 
granting  of  warrants  was  afterwards  recognised  by  ^  various 

1  "  At  eleven  o'clock  the  same  night,  as  I  was  going  into  bed,  Mr.  Thynne's 
"  gentleman  came  to  me  to  grant  a  hue  and  cry  "  (on  his  master's  murder  by 
the  friends  of  Count  Coningsmark).— &V  J.  ReresWe  Memoirs,  p.  235  (edition 
of  1876). 

'^  Sec  &.g.  9  Geo.  1,  c.  7,  s.  S  ;  13  Geo.  3,  c.  31 ;  44  Geo.  3,  c.  92. 


POWER  TO  ISSUE  WARRANTS.  IQI 

statutes,  and  was  finally  set  upon  an  ^  indisputable  statutory   Ch.  VII. 

foundation  in  1848  by  11  &  12  Vic.  c.  42,  ss.  1,  2,  8,  &c.       

The  effect  of  these  provisions  is  that,  where  a  complaint  is 
made  to  any  justice  that  any  person  has  committed  any  in^ 
dictable  offence,  the  justice  may  issue  a  summons  to  such 
person,  or,  if  he  thinks  it  necessary,  and  if  the  charge  is  made 
on  oath,  and  in  writing,  a  warrant  for  his  apprehension. 

The  power  of  the  justices  to  issue  such  process  was  however 
disputed  for  centuries.  In  ^Hawkins's  Pleas  of  the  Crown, 
many  authorities  upon  the  subject  are  referred  to,  and  a  very 
qualified  and  hesitating  conclusion  is  reached,  that  "perhaps 
"it  is  the  better  opinion  at  this  day  that  any  constable  or 
"  private  person  to  whom  a  warrant  shall  be  directed  from  a 
"  justice  of  the  peace  to  arrest  a  particular  person  for  felonj 
"  or  any  other  misdemeanour  within  his  jurisdiction  may  law- 
"  fully  execute  it,  whether  the  person  mentioned  in  it  be  in 
"  truth  guilty  or  innocent,  and  whether  he  were  indicted  of 
"  the  same  offence  or  not,  and  whether  any  felony 
"  were  in  truth  committed  or  not."  This  hesitation  is  ex- 
plained by  the  difference  of  opinion  between  Coke  and  Hale 
upon  the  subject.  ^  Coke  maintained  that,  before  the  statutes 
of  Philip  and  Mary  authorising  justices  to  examine  witnesses 
when  a  person  was  arrested  for  felony,  "  a  justice  of  the  peace 
"  could  not  make  a  warrant  to  take  a  man  for  felony  unless  he 
"  be  indicted  thereof."  He  also  maintained  that  the  only 
warrant  which  the  statutes  of  Philip  and  Mary  could  be  taken 
to  authorise  by  implication  (they  say  nothing  at  all  about 
warrants)  were  warrants  to  constables  to  see  the  king's  peace 
kept  upon  the  occasion  of  the  apprehension  of  the  person 
suspected  by  the  person  having  suspicion.  Coke  goes  so  far 
as  to  maintain  that  upon  such  a  warrant  the  constable  would 
not  be  justified  in  breaking  open  a  door,  "for  it  is  in  law  the 
"  arrest  of  the  party  that  hath  the  knowledge  or  suspicion." 

*Hale  referring  to  this  passage,  says  that  Coke  "hath 
"  delivered  certain  tenets  which,  if  they  should  hold  to  be 
"  law,  would  much  abridge  the  power  of  justices  of  the  peace, 

1  Dig.  Grim.  Proc.  arts.  99-108. 

^  Bk.  ii.  ch.  xiii.  vol.  ii.  pp.  129,  130,  edition  of  1824. 

3  Uh  Inst.  176,  177.  <*  2  P.  C.  107-110. 


192  HALE  AND  COKE  ON  WARRANTS. 

Ch.  yu.    "  and  give  a  loose  to  felons  to  escape   unpunished  in  most 
"  cases."     He  then  proceeds    to    refer    to   the   statutes   of 
Edward  III.,  and  argues  in   substance  that  as  at  common 
law  a  private  person  might  and  a  constable  ought  to  arrest 
supposed  felons  upon  suspicion  without  warrant,  the  justice 
might  do  so  a  fortiori,  in  virtue   of  the  general  terms  of  the 
statutes,  and  that  he  might  also  "  issue  a  warrant,  to  appre- 
"  bend  a  person   suspected   of  felony  though  the   original 
"  suspicion  be  not  in  himself,  but  in  the  party  that  prays  his 
"  warrant,  and  the  reason  is  because  he  is  a  competent  judge 
"  of  the  probabilities  offered  to  him  of  such  suspicion."    This 
opinion  prevailed  in  practice  long  before  any  necessity  arose  for 
inquiring  whether  it  was  well  founded  in  theory.     That  it 
was  highly  expedient  that  justices  of  the  peace  should  act 
judicially  in  issuing  warrants  admits  of  no  question  at  all. 
That  it  was  intended  that  they  should  do  so  when  the  statutes 
under  which  they  were  first  appointed  were  enacted  seems  to 
me  unlikely.     If  such  had  been  the  intention  of  the  legis- 
lature, it  is  probable  that  they  would  have  been  authorised 
and   indeed  required  to   proceed   in   the   same   manner  as 
coroners,  namely,  by  summoning  inquests ;  but,  however  this 
may  be,  the  whole  subject  is  now  set  on  a  perfectly  plain 
foundation  by  the  statutes  already  referred  to. 

Whilst  the  duties  of  private  persons,  constables,  and  justices 
were  being  gradually  ascertained,  the  law  as  to  the  circum- 
stances which  would  justify  an  arrest  for  felony  was  being 
elaborated.  In  an  earlier  chapter  I  have  given  some  illus- 
trations of  the  manner  in  which  aU  sorts  of  criminals,  and 
especially  all  thieves,  were  regarded  in  very  early  times  as 
enemies  to  be  put  to  death  almost  like  wild  animals.  It  would 
not  be  worth  while  to  trace  minutely  the  steps  by  which 
this  general  and  crude  view  of  the  subject  was  gradually 
reduced  to  the  shape  in  which  it  now  stands.  Questions  con- 
tinually arose  as  to  whether  a  person  who  had  killed  another 
in  resisting  apprehension  was  guilty  of  any  offence  at  all,  and, 
if  guilty,  whether  the  offence  of  which  he  was  guilty  amounted 
to  murder  or  manslaughter.  These  cases  were  decided  from 
time  to  time  according  to  a  variety  of  distinctions  sug- 
gested, by  the  icircumstances  of  each  particular  case,  a  long 


COMMON  LAW  OF  AEEEST.  .  193 

detail  of  which  may  be  found  in  i  Hale's  Pleas  of  the   Grown    ("h.  vn. 
which  is  still  the  leading  authority  as  to  the  general  principles 
of  the  subject,  though  subsequent  decisions  and  enactments 
have  to  some  extent  modified  Hale's  conclusions.    ^  The  result 
of  his  inquiry  may  be  thus  stated  : — 

1.  Any  person  may  arrest  any  person  who  is  actually 
committing  or  has  actually  committed  any  felony. 

2.  Any  person  may  arrest  any  person  whom  he  suspects  on 
reasonable  grounds  to  have  committed  any  felony,  if  a  felony 
has  actually  been  committed. 

3.  Any  constable  may  arrest  any  person  whom  he  suspects 
on  reasonable  grounds  of  having  committed  any  felony, 
whether  in  fact  any  such  felony  has  been  committed  or  not. 

The  common  law  did  not  5,uthorise  the  arrest  of  persons 
guilty  or  suspected  of  misdemeanours,  except  in  cases  of  an 
actual  breach  of  the  peace  either  by  an  affray  or  by  violence 
to  an  individual.  In  such  cases  the  arrest  had  to  be  made  not 
so  much  for  the  purpose  of  bringing  the  offender  to  justice  as 
in  order  to  preserve  the  peace,  and  the  right  to  arrest  was 
accordingly  limited  to  cases  in  which  the  person  to  be  arrested 
was  taken  in  the  fact  or  immediately  after  its  commission. 

As  to  the  degree  of  force  which  may  be  used  in  order  to 
arrest  a  criminal,  many  questions  might  be  suggested  which 
could  be  answered  only  by  way  of  conjecture.  Two  leading 
principles,  however,  may  be  laid  down  with  some  confidence, 
which  are  also  to  be  collected  from  Hale.  The  first  is  ^  that 
if  a  felon  flies  or  resists  those  who  try  to  apprehend  him,  and 
cannot  otherwise  be  taken,  he  may  lawfully  be  killed.  *  The 
second  is  that  a  person  who  makes  an  arrest  because  it  is  his 
legal  duty  to  do  so  is  more  readily  justified  in  using  violence 
for  the  purpose  than  a  person  who  is  under  no  such  duty. 

1  2  Hale,  72-105. 

^  As  to  present  law  of  summary  arrest,  see  Dig.  Crim.  Proc.  ch.  xii,  arts. 
96-98. 

3  1  Hale,  481,  489  ;  and  see  Foster,  271.  This  rule  seems  to  overlook  the 
distinction  between  taking  a  man  prisoner  and  taking  possession  of  his  dead 
body,  for  it  is  difficult  to  see  in  what  sense  a  pickpocket  can  be  said  to  be 
taken  if  he  is  shot  dead  on  the  spot.  The  rule  would  be  more  accurately  ex- 
pressed by  saying  that  a  man  is  justified  in  using  any  violence  to  arrest  a  felon 
which  may  be  necessary  for  that  purpose,  even  if  it  puts,  and  is  known  and 
meant  to  put,  his  life  in  the  greatest  possible  danger,  and  is  inilicted  by  a 
deadly  weapon,  and  does  in  fact  kill  him.  ^  1  Hale,  490  ;  Foster,  418. 

VOL.   I.  0 


194  LOCAL   POLICE — PARISH   CONSTABLES. 

Ch.  VII.  If  A  kills  B,  whom  he  suspects  on  probable  grounds  of 
having  committed  a  felony,  though  in  fact  he  has  not,  and 
whom  he  cannot  otherwise  arrest,  it  appears  probable  that  A 
is  guilty  of  manslaughter  if  he  is  a  private  person,  but  if  A 
is  a  constable  following  a  hue  and  cry,  his  act  is  justifiable 
because  he  acts  in  the  discharge  of  a  legal  duty. 

The  cojnmon  law  as  to  the  arrest  of  prisoners  remained 
substantially  unaltered  for  a  great  length  of  time.  It  is 
indeed  in  force  at  this  day  with  some  few  modifications,  to 
be  stated  immediately;  but  since  it  reached  the  state  of 
development  just  described,  changes  of  the  greatest  im- 
portance have  been  made  in  the  position  of  the  officers  by 
whom  it  is  put  in  force.  These  changes  I  now  proceed  to  notice. 

From  the  earliest  times  to  our  own  days,  there  were  two 
bodies  of  police  in  England,  namely,  the  parish  and  high  con- 
stables, and  the  watchmen  in  cities  and  boroughs.  ^The  parish 
constables,  under  various  names  (borsholders,  headboroughs, 
tithingmen,  chief  pledges,  &c.),  were  probably  the  successors 
of  the  old  reeves,  who  with  their  four  men  represented  the 
township  on  all  occasions  at  the  beginning  of  our  legal  history. 
In  each  hundred  and  in  many  franchises  there  were  also  high 
constables,  or  similar  officers  with  other  names,  who  were  to 
the  hundred  or  franchise  what  the  parish  constables  were  to 
the  township.  These  officers  continued  to  be  appointed  tiU 
within  the  last  few  years.  The  duties  of  the  high  constables 
came  to  be  almost  nominal,  consisting  principally  in  issuing 
various  notices  under  different  statutes,  and  they  were  relieved 
of  them  almost  entirely  in  1844  by  the  7  &  8  Vic.  c.  33, 
ss.  7  &  8.  The  office  itself  was  practically  abolished  in 
1869  by  32  &  33  Vic.  c.  47.  The  parish  constables  con- 
tinued to  be  appointed  till  1872,  when  their  appointment  was 
rendered  unnecessary  (except  in  some  special  cases)  by  35 
&  36  Vic.  c.  72;  but  from  the  time  when  the  Statute  of 
Winchester  and  the  Assize  of  Arms  became  obsolete  till 
the  year  1829,  they  were  the  only  body  of  men,  except 
the  watchmen  in  cities  and  boroughs,  charged  with  the  duty 
of  apprehending  criminals  and  preventing  crimes. 

1  Dalton's  Justice,  p.  3  ;  Burn's  Justice,  title  "ConstaMe.''  A  tithingman 
seems  to  have  been  subordinate  to  the  constable. 


WATCHMEN   IN  TOWNS.  195 

The  watchmen  in   towns   were  first   established   by  the    Ch.  VII. 
Statute  of  Winchester,  and  the  powers  of  the  town  magis- 
trates  depended  originally  upon  their  charters,  which  were 
often  silent  on  the  subject  of  watchmen.     At  a  time  which 
I  am  not  able  to  fix  with  precision,  but  which  from  ^  expres- 
sions in  the  Keport  of  the  Municipal  Corporation  Commission 
I  think  must  have  been  in  the  latter  part  of  the  last  century, 
it  became  customary  to  pass  Local  Improvement  Acts,  by  which 
the  management  of  matters  connected  with  the  police  of  towns 
was  usually  vested  in  a  body  of  trustees  or  commissioners 
distinct  from  the  corporation  itself.     There  were  great  differ- 
ences in  the  manner  in  wMch  these  powers   were  allotted. 
The  following  passage  occurs  in  the  report  already  quoted : — 
^  "  In  a  very  great  number  of  towns  there  are  no  watchmen 
."  or  police  officers  of  any  kind  except  the  constables,  who  are 
"  unsalaried  officers.      They  are  sometimes  appointed  at  a 
"  court  leet,    more  frequently  by  the  corporate   authorities- 
"  The   police,  and   the   powers   conferred  by  local  acts  for 
"  paving,  lighting,  and  watching  the  town,  are   seldom  ex- 
"  clusively  in  the  jurisdiction  of  the  corporation ;  sometimes 
"  they  are  shared  by  the  corporate  authorities  and  'commis- 
"  sioners  ;  sometimes  they  are  vested  in  commissioners  alone." 
A  striking  illustration  of   the   confusion    thus    produced  is 
given  in  ^Colquhoun's  Treatise  on  the  Police  of  the  Metropolis. 
He  observes : — "  At  present  the  watchmen  destined  to  guard 
"  the  lives  and  property  of  the  inhabitants  residing  in  near 
"  8,000  streets,  lanes,  courts,  and  alleys,  and  about  152,000 
"  houses,  composing    the    whole  of  the  metropolis  and  its 
"  environs,  are  under  the  directions  of  not  less  than  above 
"  seventy  different  trusts,  regulated  by  perhaps  double  the 
"  number  of  local  acts  of  parliament  (varying  in  many  shades 
".  from  one  another),  under  which  these  directors,  guardians, 
"  governors,  trustees,  or  vestries,  according  to  the  title  they 
"  assume,    are   authorised    to   act,   each   attending   only  to 

1  1st  Report,  p.  17.  ^  P.  29. 

^  Published  in  1796.  In  the  Meport  of  a  Select  Qommittee  on  the  Police  of 
the  Metropolis,  published  in  1838,  the  Committee  says  of  this  work,  "The 
' '  merit  of  being  the  first  to  point  out  the  necessity  and  practicability  of  a 
"  system  of  preventive  police  upon  an  uniform  and  consistent  plan  is  due  to 
"  Mr.  Colquhoun,  the  author  of  the  treatise  On  the  Police  of  the  Metropolis." 

0  2 


196  POLICE  AT   END   OF    i8TH   CENTURY. 

Ch.  VII.    "  their    own   particular   ward,    parish,   hamlet,    liberty,    or 
"  precinct." 

Nothing  could  exceed  the  inefficiency  of  the  constables 
and  watchmen.  Of  the  constables,  Dalton  (in  the  reign  of 
James  I.)  observes  that  they  "are  often  absent  from  their 
"  houses,  being  for  the  most  part  husbandmen,  and  so  most 
"  of  the  day  in  the  fields."  The  charge  of  Dogberry  shows 
probably  with  no  great  caricature  what  sort  of  watchmen 
Shakespeare  was  familiar  with.  In  the  work  already  quoted, 
^  Colquhoun  observes  of  the  watchmen  of  his  time  that  the 
pay  was  so  bad  that  "  the  managers  have  no  alternative  but 
"  to  accept  of  such  aged  and  often  superannuated  men  living 
"  in  their  respective  districts  as  may  offer  their  services."  . 
"  What  can  be  expected  from  such  watchmen  ?  Aged  in 
"  general ;  often  feeble ;  and  almost  on  every  occasion  half 
"  starved  from  the  limited  allowance  they  receive,  and 
"  without  any  claim  upon  the  public  or  the  least  hope  of 
"  reward  held  out  even  if  they  performed  any  meritorious 
"  service "  .  .  .  "  and,  above  all,  making  so  many  parts  of 
"  an  immense  system,  without  any  general  superintendence, 
"  disjointed  from  the  nature  of  its  organisation,  it  is  only  a 
"  matter  of  wonder  that  the  protection  afforded  should  be 
"  what  it  really  is." 

The  defects  of  this  state  of  things  were  slightly,  but  very 
slightly,  mitigated  by  the  institution  of  a  number  of  small 
bodies  of  constables  under  the  direction  of  particular  magis- 
trates. In  the  year  1796  there  were  eight  such  constables  at 
Bow  Street  (known  as  Bow-Street  runners),  and  six  others 
at  each  of  seven  other  police  offices  in  London,  making  in  all 
fifty  constables  who  gave  their  whole  time  to  their  business. 
There  were  also  sixty-seven  mounted  police,  forming  what  was 
called  the  horse  patrol,  who  patrolled  the  roads  near  London 
for  the  suppression  of  highwaymen.  Probably  there  may 
have  been  arrangements  more  or  less  resembling  these  in  other 
large  towns.  This  system  continued  practically  unaltered  till 
the  year  1829,  although  ^various  parliamentary  inquiries  into 

^  Colquhoun,  p.  232. 

^  Parliamentary  committees  reported  on  the  subject  in  1816,  1817,  1818, 
1822,  and  1828.  The  evidence  given  before  them  fills  several  bluebooks,  and  is 
curious  and  instructive. 


ESTABLISHMENT   OiT   METROPOLITAN   POLICE.  ]  97 

the  subject  took  place.  In  1829  was  passed  the  first  of  a  Ch.  vii. 
series  of  acts  which  put  the  administration  of  the  law  as  to 
the  apprehension  of  offenders  upon  quite  a  new  footing. 
This  was  the  10  Geo.  4,  c.  44.  Under  this  act,  as  amended 
by  the  ■'■later  acts  referred  to  in  the  notes,  the  following  system 
was  established,  and  still  exists,  in  the  neighbourhood  of 
London.  The  city  of  Westminster  and  certain  parts  of  the 
counties  of  Middlesex,  Surrey,  Hertford,  Essex,  and  Kent  are 
constituted  into  a  district  called  "The  Metropolitan  Police 
District."  ^  Her  Majesty  is  empowered  to  appoint  a  "  Com- 
missioner of  the  Police  of  the  Metropolis,"  with  two  Assistant 
Commissioners,  who  in  certain  cases  may  act  as  his  deputies 
and  in  other  cases  act  under  his  orders. 

^  The  Commissioner  and  assistants  are  during  their  tenure 
of  office  justices  of  the  peace  for  Middlesex,  Surrey,  Hert- 
ford, Essex,  Kent,  Berkshire,  and  Buckinghamshire,  but 
they  must  not  sit  at  quarter  sessions,  nor  act  except 
for  the  preservation  of  the  peace,  the  prevention  of  crimes, 
the  detention  and  committal  of  offenders,  and  the  execution 
of  the  acts  by  which  they  are  appointed. 

*  A  sufficient  number  of  fit  and  able  men  are  from  time  to 
time  by  the  direction  of  the  Home  Secretary  to  be  sworn  in 
before  the  Commissioner  to  act  as  a  police  force  for  the  whole 
district,  and  throughout  the  counties  of  Middlesex,  Surrey, 
Hertford,  Essex,  Kent,  Berkshire,  and  Buckinghamshire, 
and  ^on  the  Thames,  and  the  members  of  the  force  are 
throughout  those  counties  to  have  all  the  powers  which  con- 
stables duly  appointed  have  within  their  constablewick  at 
common  law. 

«  The  Commissioner  may,  subject  to  the  approbation  of  the 

•  10  Geo.  4,  c.  a,  s.  4.  The  schedule  to  the  act  constitutes  certain 
parts  of  Middlesex,  Surrey,  and  Kent  into  the  Metropolitan  Police  District. 
S.  34  gives  the  Secretary  of  State  po^wer  to  extend  it  to  places  -within  twelve 
miles  of  Charing  Cross,  and  this  is  extended  to  fifteen  miles  by  2  &  3  Vic. 
c.  47,  s.  2. 

2  Theye  were  at  first  two  justices,  10  Geo.  4,  c.  44,  o.  1.  They  were  to 
be  called  Commissioners  of  Police  by  2  &  3  Vic.  c.  47,  s.  4.  One  Commis- 
sioner and  two  Assistant  Commissioners  were  substituted  by  19  &  20  Vic. 

c   2 
'  3  'lo  Geo.  4,  c.  44,  s.  1 ;  2  &  3  Vic.  c.  47,  s.  4  ;  19  &  20  Vic.  c.  2,  s.  1. 
4  10  Geo.  4,  c.  44,  s.  4.  =  2  &  3  Vic.  c.  47,  s.  5. 

■«  10  Geo.  4,  c.  44,  s.  5. 


198  POLICE   UNDER   MUNICIPAL   CORPOEATIONS   ACT. 

Ch.  VII.  Home  Secretary,  frame  orders  and  regulations  for  the  govern- 
ment  and  regulation  of  the  force. 

^The  expenses  of  the  force  are  paid  by  a  rate  not  exceeding 
8d.  in  the  pound  which  the  Commissioner  is  empowered  to 
lay  upon  parishes  in  the  Metropolitan  Police  District,  and 
which  is  to  he  collected  with  the  poor  rate.  ^It  is  received 
and  administered  by  an  officer  called  the  Eeceiver  for  the 
Metropolitan  Police  District,  who  receives,  expends,  and  ac- 
counts for  the  moneys  in  a  manner  prescribed  in  the  various 
acts  referred  to  below.  ^A  sum  not  exceeding  £20,000  a 
year  may  be  contributed  by  the  Treasury  to  the  expenses  of 
the  Thames  police. 

These  provisions  are  the  essential  part  of  the  acts  by  which 
the  metropolitan  police  were  established.  They  contain 
besides  numerous  important  provisions  as  to  police  courts 
and  police  offences. 

The  next  general  measure  relating  to  the  appointment  of 
police  constables  was  embodied  in  the  *  Municipal  Corporations 
Act.  By  this  act  the  councils  of  the  boroughs  were  em- 
powered to  appoint  a  sufficient  number  of  their  own  body 
to  be,  together  with  the  mayor,  the  watch  committee  of  the 
borough.  The  watch  committee  are  to  appoint  a  sufficient 
number  of  fit  men  (to  be  sworn  in  before  a  borough  justice) 
as  constables.  The  constables  are  to  act  as  such,  not  only 
within  the  borough,  but  also  within  the  county  in  which  such 
borough  or  part  of  it  is  situated,  and  also  within  every 
county  within  seven  miles  of  any  part  of  the  borough.  The 
watch  committee  are  to  make  such  rules  as  they  think 
expedient  for  preventing  neglect  or  abuse  and  for  rendering 
the  constables  efficient  in  the  discharge  of  their  duties. 

These  provisions  were,  I  believe,  generalised  from  those 
which  were  usually  inserted  in  the  Local  Improvement  Acts 
already  referred  to,  ^  and  it  was  accordingly  provided  that,  as 

1  10  Geo.  i,  0.  44,  s.  23. 

2  10  Geo.  4,  c.  44,  ss.  10-17,  25-29  ;  2  &  3  Vic.  c.  71,  ss.  7,  8,  47  :  20  & 
21  Vic.  c.  64,  ss.  13-15 ;  24  &  25  Vic.  c.  124  :  34  &  35  Vic.  c.  35 

3  2  &  3  Vic.  c.  47,  .<i.  5. 

*  5  &  6  Will.  4,  c.  76,  ss.  76-86  ;  see  also  45  &  46  Vic.  c.  50,  ss.  190-200., 

^  S.  84.  This  section  does  not  appear  to  have  been  re-enacted  by  45  &  46 

Vic.  c.  50.     Improvement  Acts  are  still  passed  for  towns  and  populous  districts 

which  are  not  incorporated,  and  in  order  to  provide  generally  for  such  cases 


COUNTY  POLICE   ESTABLISHED.  I  99 

soon  as  constables  have  been  appointed  by  the  watch  com-    Ch,  Vli. 

mittee,  and  a  notice  given  as  specified  in  the  act,  other  acts       

relating  to  the  subject  shall  cease. 

The  expenses  of  the  borough  police  are  payable  out  of  the 
borough  rate. 

The  next  step  towards  the  provision  of  a  general  system  of 
police  was  taken  in  1839  by  the  Act  2  &  3  Vic.  c.  93.  This 
act  permitted  a  body  of  police  to  be  established  for  a  county, 
with  the  consent  of  Hhe  Secretary  of  State  for  the  Home 
Department,  on  a  representation  from  the  magistrates  at 
quarter  sessions,  ^xhe  Home  Secretary  makes  rules  as  to 
the  government,  pay,  clothing,  and  accoutrements  of  the 
constables.  ^The  justices  appoint  for  the  county  a  chief 
constable  or  in  certain  cases  more  chief  constables  than 
one.  *  The  chief  constable  (subject  to  the  approval  of 
at  least  two  justices  in  petty  sessions)  appoints  the  other 
constables  for  the  county,  and  a  superintendent  to  be  at 
the  head  of  the  constables  of  each  division  of  the  county, 
and  can  dismiss  all  or  any  of  them  at  pleasure.  He  has 
the  general  disposition  and  government  of  the  constables  so 
appointed,  subject  to  such  lawful  orders  as  he  receives  from 
the  justices  in  sessions,  and  to  the  rules  established  for  the 
government  of  the  force. 

^  The  constables  have  all  the  powers  of  a  constable  at 
common  law  throughout  every  part  of  their  own  and  of  all 
adjoining  counties,  ^  and  are  subject  to  the  same  provisions 
as  to  notice,  neglect  of  duty,  and  the  like,  as  those  which  have 
been  already  noticed  in  reference  to  the  metropolitan  police. 

^The  expenses  are  paid  by  a  police  rate  made  by  the 
justices  and  received  and  expended  by  the  county  treasurer ; 
®but  one  fourth  of  the  expense  of  the  pay  and  clothing  of 
the  constables  is,  if  they  are  certified  by  the  Secretary  of 

an  act  called  "The  Town  Police  Clauses  Act,  1847"  (10  &  11  Vic.  e.  19) 
was  passed,  which,  contains  provisions  similar  to  those  already  referred  to, 
and  is  usually  emhodied  hy  reference  in  the  special  acts. 

^  In  all  these  acts  the  expression  is  "  one  of  her  Majesty's  principal  Secre- 
taries of  State. "  In  practice  this  means  the  Secretary  of  State  for  the  Home 
Department. 

'^  2  &  3  Vic.  c.  93,  s.  3.  ^  2  &  3  Vic.  0.  93,  s.  3,  and  see  20  Vic.  c.  2. 

*  2  &  3  Vie.  c.  93,  s.  60.  ^  g.  8. 

6  2  &  3  Vic.  u  93,  ss.  10-14.    '  3  &  4  Vic.  c.  88,  ss.  3-13,  25. 

8  19  &  20  Vic.  i;.  69,  s.  16. 


200  SUPPRESSION   OF  OFFENCES  BY  MILITARY  FORCE. 

Ch_  VII.  State  to  be  in  a  state  of  efficiency  in  point  of  numbers  and 
'  discipline,  to  be  paid   by  the  Treasury  out  of  the   general 

taxation  of  the  country. 

iThe  Secretary  of  State  for  the  Home  Department  has 
power  to  appoint  three  inspectors  to  inquire  into  the  state 
and  efficiency  of  the  county  and  borough  police  and  to  see 
that  the  provisions  of  the  Police  Acts  are  properly  carried  out. 

In  1856,  after  an  experience  of  seventeen  years  in  the 
working  of  the  Act  2  &  3  Vic.  c.  93,  an  act  (19  &  20 
Vic.  c.  69)  was  passed  which  made  compulsory  the  esta- 
blishment of  county  police  in  all  parts  of  England  in  which 
they  had  not  been  already  established. 

The  result  is  that  a  disciplined  force  in  the  nature  of 
a  standing  army  for  the  suppression  of  crime  and  the 
apprehension  of  offenders  has  been  provided  throughout 
every  part  of  England  by  four  successive  steps,  namely,  (1)  the 
establishment  of  the  metropolitan  police  in  1829,  (2)  that  of 
the  borough  police  in  1836,  (3)  the  partial  establishment 
of  the  county  police  by  the  permissive  act  of  1839,  and  (4) 
its  complete  establishment  by  the  compulsory  act  of  1856. 

Extensive  additions  to  the  powers  of  summary  arrest  which 
were  vested  in  constables  by  common  law  have  been  made 
with  respect  to  particular  offences.  I  do  not  propose  to  enter 
at  length  upon  this  subject,  but  the  ^references  given  below 
will  enable  any  one  to  do  so  who  is  so  disposed. 

Suppression  of  Offences  by  Military  Force. — So 
far  I  have  dealt  with  the  provision  made  by  law  for  the 
apprehension  of  offenders  in  common  cases,  but  there  are 
other  cases  which  occur  less  frequently,  and  for  which  it  is 
necessary  to  make  special  provision  as  they  arise. 

These  are  offences  committed  by  large  numbers  of  persons 
and  with  the  strong  hand.     They  may  vary  in  gravity  from 

1  19  &  20  Vic.  c.  69,  s.  15. 

^  See  li  &  15  Vic.  c.  19,  as  to  persons  committing  indictable  offences  at 
night ;  24  &  25  Vic.  o.  96,  s.  103,  as  to  persons  found  committing  offences 
against  the  Larceny  Act  ;  s.  104,  as  to  arrest  of  persons  found  loitering  in 
yards,  &c.  ;  24  &  25  Vic.  c.  97,  s.  57,  as  to  offences  against  the  malicious 
injuries  to  Property  Act ;  24  &  25  Vic.  o.  100,  s.  66,  as  to  offences  against  the 
person  ;  24  &  25  Vic.  c.  99,  as  to  offences  relating  to  the  coinage ;  5  Geo.  4, 
c.  83.  s.  4,  as  to  offences  against  the  Vagrant  Act,  and  in  34  &  35  Vic.  o,  112', 
s.  15,  which  amends  it.  As  to  police  offences  in  the  metropolis  see  2  &  3  Vic! 
c.  47.  s.  55.     See  too  Big.  Orim.  Proc.  arts.  9^6  98. 


SUPPEESSIO.N   OF  KIOTS.  20I 

an  ordinary  riot  up  to  high  treason  by  waging  war  against   Ch.  Vll. 
the   Queen,  and  they  may  either  be  suppressed  immediately 
or  may  grow  into  civil  wars.      The  law  on  this  subject  has 
considerable  historical  and  constitutional  interest. 

The  definition  of  the  various  crimes  by  which  the  peace 
may  be  disturbed  will  be  considered  hereafter,  but  I  pro- 
pose at  present  to  state  the  effect  of  the  law  as  to  their 
suppression. 

The  common  law  right  and  duty  not  only  of  the  con- 
servators of  the  peace  but  of  all  private  persons  (according 
to  their  power),  to  keep  the  peace  and  to  disperse  and,  if 
necessary,  to  arrest  those  who  break  it,  is  obvious  and  well 
settled,  but  it  is  also  obvious  that  it  can  hardly  be  discharged 
to  advantage  without  special  statutory  power.  In  the  earlier 
stages  of  our  history  the  power  and  turbulence  of  the  nobiUty 
was  so  great  that  private  war  was  all  but  continual,  and  the 
preservation  of  the  peace  by  force  of  arms  was  the  first  duty 
of  all  rulers.  Violence  in  all  its  forms  was  so  common,  and 
the  suppression  of  force  by  force  so  simple  a  matter,  that 
.special  legislation  .did  not  appear  necessary  in  very  earty 
times.  ^The  earliest  express  recognition  by  statute  of  this 
state  of  things  to  which  I  can  refer  occurs  in  the  Statute 
of  Treasons.  After  defining  treason  positively,  the  statute 
proceeds  to  say  what  shall  not  be  held  to  be  treason.  "And 
"if  percase  any  man  of  this  realm  ride  armed 'covertly" 
(it  should  be  translated  "openly,"  the  French  is  "descovert") 
"  or  secretly  with  men  of  arms  against  any  other  to  slay 
"  him,  or  rob  him,  or  take  him,  or  retain  him  till  he  hath 
"  made  fine  or  ransom  for  to  have  his  deliverance,  it  is  not 
"  the  mind  of  the  king  nor  his  council  that  in  such  case  it 
"  shall  be  judged  treason,  but  shall  be  judged  felony  or 
"  trespass  according  to  the  laws  of  the  land  of  old  time 
"  used  and  according  as  the  case  requireth."  In  other  words, 
private  war,  whatever  else  it  may  be,  is  not  treason. 

The  first  definite  legislation  as  to  the  suppression  of  riots 
dates  from  1393  (17  Rich.  2,  c.  8)'. 

This  statute  recites  that,  notwithstanding  the  prohibition 

1  See,  however,  7  Edw.  1,  st.'l,  A.D.  1279,  as  to  coming  armed  to  Parliament, 
and  33  Edw.  1,  st.  2  (1304),  a 'definition  of  conspirators. 


202  EAELY  STATUTES  AS  TO  RIOTS. 

Ch.  VII  of  riots  which  had  been  made  twelve  years  before  (in  1381, 
the  date  of  Wat  Tyler's-  insurrection),  great  disturbances  had 
been  made  in  Chester,  Lancashire,  and  elsewhere  (probably 
in  connection  with  the  Lollards),  and  enacts  that  in  cases  of 
riot  the  sheriffs  are,  "  with  the  strength  of  the  county  and 
"  counties  to  set  disturbance  against  such  malice  with  all 
"  their  power  and  shall  take  such  offenders  and  them  put  in 
"  prison."  This  act  was  supplemented  by  many  others.  By 
13  Hen.  4s,  c.  7  (a.d.  1411),  it  is  enacted  that,  when  a 
riot  happens,  two  justices  at  least  and  the  sheriff  or  under- 
sheriff  "  shall  come  with  the  power  of  the  county  and  shall 
"  arrest  them,"  and  shall  have  power  to  record  "that  which 
"  they  shall  find  so  done  in  their  presence,"  and  either  try 
the  offenders  within  a  month  or  "  certify  the  deed  and 
"  circumstances  thereof"  to  the  king  and  his  council,  "  which 
"  certificate  shall  be  of  like  force  as  the  presentment  of 
"  twelve,"  and  the  offenders  are  to  be  punished  according  to 
the  discretion  of  the  king  and  his  council.  By  the  2  Hen. 
5,  st.  1,  c.  8,  it  was  added  that,  if  the  sheriffs  and  justices 
made  default,  any  party  aggrieved  might  have  a  commission 
from  the  chancellor  to  the  coroners  to  inquire  both  into  the 
riot  and  into  the  default  of  the  justices  and  sheriffs.  The 
justices  suppressing  the  riots  were,  on  the  other  hand,  to  be 
paid  their  expenses.  The  next  chapter  (ch.  9)  of  the  same 
statute  provides  that,  if  the  rioters  fly,  they  may  be  proclaimed, 
and  shall  be  liable  to  conviction  if  they  do  not  come  in 
upon  the  proclamation.  ^  Under  the  Tudors,  acts  were  passed 
which  made  it  felony  for  twelve  persons  or  upwards  to  con- 
tinue together  riotously  for  an  hour  after  they  had  been 
ordered  by  a  justice  to  disperse,  but  none  of  these  acts  pro- 
vided any  special  force  beyond  the  power  of  the  county  which 
could  be  used  by  the  sheriff  or  justices. 

Throughout  the  seventeenth  century,  ^  Parliament  was  little 
disposed  to  legislate  against  riots,  but  at  the  beginning  of 
the  eighteenth  century  was  passed  the  famous  Act,  1  Geo.  1, 
St.  2,  c.  5,  still  in  force  and  commonly  known  as  the  Riot  Act. 
It  increases  the  severity  of  the  Tudor  Acts  (which  expired  at 

'  3  &  4  Edw.  6,  0.  5  ;  1  Mary,  sess.  2,  c.  12  ;  1  Eliz.  o.  16. 

'■*  See,  however,  the  act  for  suppressing  seditious  conventicles,  22  Chas.  2,  o.  1. 


RIOT  ACT— GORDON  RIOTS.  203 

the  death  of  Elizabeth)  by  making  it  felony  without  benefit  Ch.  Vll. 
of  clergy,  for  twelve  rioters  to  continue  together  for  one  hour 
after  the  making  by  a  magistrate  of  a  ^  proclamation  to  them 
to  disperse.  It  then  requires  the  magistrates  to  seize  and 
apprehend  all  persons  so  continuing  together,  and  it  provides 
that,  if  the  persons  so  assembled,  or  any  of  them,  "  happen  to 
"  be  killed,  maimed,  or  hurt  in  dispersing,  seizing,  or  appre- 
"  bending,  or  endeavouring  to  disperse,  seize,  or  apprehend 
"  them,"  the  magistrates  and  those  who  act  under  their  orders 
shall  be  indemnified.  As  a  standing  army  had  come  into 
existence  before  this  act  passed,  the  effect  of  it  was  that 
after  making  the  proclamation  and  waiting  for  an  hour  the 
magistrates  might  order  the  troops  to  fire  upon  the  rioters  or 
to  charge  them  sword  in  hand.  To  say  so  in  so  many  words 
would  no  doubt  have  given  great  offence,  but  the  effect  of  the 
indirect  hint  at  the  employment  of  armed  force  given  by  the 
statute  was  singular.  It  seems  to  have  been  generally  under- 
stood that  the  enactment  was  negative  as  well  as  positive ; 
that  troops  not  only  might  be  ordered  to  act  against  a  mob 
if  the  conditions  of  the  act  were  complied  with,  but  that 
they  might  not  be  so  employed  without  the  fulfilment  of 
such  conditions.  This  view  of  the  law  has  been  on  several 
occasions  decided  to  be  altogether  erroneous.  The  true 
doctrine  on  the  subject  was  much  considered,  both  in  the 
case  of  Lord  George  Gordon's  Eiots  in  1780,  and  in  the  case 
of  the  Bristol  Eiots  in  1831.  It  may  be  shortly  stated  as 
follows.  The  fact  that  soldiers  are  permanently  embodied 
and  subjected  by  the  Mutiny  Act  to  military  discipline,  and 
bound  to  obey  the  lawful  orders  of  their  superior  officers, 
does  not  in  any  degree  exempt  them  from  the  obligation 
incumbent  on  all  her  Majesty's  subjects  to  keep  the  peace 
and  disperse  unlawful  assemblies.  On  the  contrary,  it  gives 
them  special  and  peculiar  facilities  for  discharging  that  duty. 
In  a  case  of   extreme  emergency  they  may  lawfully  do  so 

1  "  Our  sovereign  Lady  the  Queen  chargeth.  and  commandetli  all  persons 
"'  being  assembled  immediately  to  disperse  themselves  and  peaceably  to  depart 
"  to  their  habitations  or  to  their  lawful  business,  upon  the  pains  contained 
"  in  the  Act  made  in  the  first  year  of  King  George  for  preventing  tumults 
"  and  riotous  assemblies.  God  save  the  Queen."  The  makmg  of  this  pro- 
clamation is  commonly,  but  very  incorrectly,  called  reading  the  Riot  Act. 


204  BRISTOL   EIOTS. 

Ch.  VII,  without  being  required  by  the  magistrates.  ^  In  the  words  of 
Lord  Chief  Justice  Tindal,  in  his  charge  to  the  grand  jury  at 
Bristol,  2nd  January,  1832: — "The  law  acknowledges  no 
"  distinction  between  the  soldier  and  the  private  individual. 
"  The  soldier  is  still  a  citizen,  lyingunder  the  same  obligation 
"  and  invested  with  the  same  authority  to  preserve  the  peace 
"  of  the  King  as  any  other  subject.  If  the  one  is  bound  to 
"  attend  the  call  of  the  civil  magistrate,  so  also  is  the  other. 
"  If  the  one  may  interfere  for  that  purpose  whea  the  occasion 
"  demands  it  without  the  requisition  of  the  magistrate,  so 
"  may  the  other  too.  If  the  one  may  employ  arms  for  that 
"  purpose  when  arms  are  necessary,  the  soldier  may  do  the 
"same.  Undoubtedly,  the  same  exercise  of  discretion  which 
"requires  the  private  subject  to  act  in  subordination  to, 
"  and  in  aid  of,  the  magistrate  rather  than  upon  his  own 
"  authority  before  recourse  is  had  to  arms  ought  to  operate  in 
"  a  still  stronger  degree  with  a  military  force.  But  where  the 
"  danger  is  pressing  and  immediate ;  where  a  felony  has 
"  actually  been  committed  or  cannot  otherwise  be  prevented 
"  and  from  the  circumstances  of  the  case  no  opportunity  is 
"  offered  of  obtaining  a  requisition  from  the  proper  au- 
"  thorities,  the  military  subjects  of  the  King,  like  his  givil 
"  subjects,  not  only  may  but  are  bound  to  do  their  utmost  of 
"  their  own  authority  to  prevent  the  perpetration  of  outrage, 
"  to  put  down  riot  and  tumult,  and  to  preserve  the  lives  and 
"  property  of  the  people.  Still  further  by  the  common  law 
"  not  only  is  each  private  subject  bound  to  exert  himself  to 
"the  utmost,  but  every  sheriff,  constable,  and  other  peace 
"  officer  is  called  upon  to  do  all  that  in  them  lies  for  the 
"  suppression  of  riot,  and  each  has  authority  to  command  all 
"  other  subjects  of  the  King  to  assist  them  in  that 
"  under    the    King." 

The  result  of  this  view  of  the  subject  is  to  put  soldiers 
acting  under  the  orders  of  their  military  superiors  in  an 
awkward  position.  By  the  ordinary  principles  of  the  common 
law  they  are,  speaking  generally,  justified  only  in  using  such 
force  as  is  reasonably  necessary  for  the  suppression  of  a  riot. 
By  the  Mutiny  Act  and  the  Articles  of  War  they  are  bound  to 
1  5  C.  &  P.  261,  &c. 


POSITION   OF   SOLDIERS.  205 

execute  any  lawful  order  which  they  may  receive  from  their  Ch.  VIT. 
military  superior,  and  an  order  to  fire  upon  a  mob  is  lawful  if 
such  an  act  is  reasonably  necessary.  An  order  to  do  more  than 
might  be  reasonably  necessary  for  the  dispersion  of  rioters 
would  not  be  a  lawful  order.  The  hardship  upon  soldiers 
is,  that  if  a  soldier  kills  a  man  in  obedience  to  his  officer's 
orders,  the  question  whether  what  was  done  was  more  than 
was  reasonably  necessary  has  to  be  decided  by  a  jury,  prob- 
ably upon  a  trial  for  murder;  whereas,  if  he  disobeys  his 
officer's  orders  to  fire  because  he  regards  them  as  unlawful, 
the  question  whether  they  were  unlawful  as  having  com- 
manded something  not  reasonably  necessary  would  have  to 
be  decided  by  a  court-martial  upon  the  trial  of  the  soldier 
for  disobeying  orders,  and  for  obvious  reasons  the  jury  and 
the  court-martial  are  likely  to  take  different  views  as  to 
the  reasonable  necessity  and  therefore  as  to  the  lawfulness 
of  such  an  order. 

I  do  not  think,  however,  that  the  question  how  far  superior 
orders  would  justify  soldiers  or  sailors  in  making  an  attack 
upon  civilians  has  ever  been  brought  before  the  courts  of  law 
in  such  a  manner  as  to  be  fully  considered  and  determined. 
Probably  upon  such  an  argument  it  would  be  found  that 
the  order  of  a  military  superior  would  justify  his  inferiors 
in  executing  any  orders  for  giving  which  they  might  fairly 
suppose  their  superior  officer  to  have  good  reasons.  Soldiers 
might  reasonably  think  that  their  officer  had  good  grounds  for 
ordering  them  to  fire  into  a  disorderly  crowd  which  to  them 
might  not  appear  to  be  at  that  moment  engaged  in  acts  of 
dangerous  violence,  but  soldiers  could  hardly  suppose  that 
their  officer  could  have  any  good  grounds  for  ordering  them 
to  fire  a  volley  down  a  crowded  street  when  no  disturbance 
of  any  kind  was  either  in  progress  or  apprehended.  The 
doctrine  that  a  soldier  is  bound  under  all  circumstances 
whatevei*  to  obey  his  superior  officer  would  be  fatal  to  military 
discipline  itself,  for  it  would  justify  the  private  in  shooting 
the  colonel  by  the  orders  of  the  captain,  or  in  deserting  to 
the  enemy  on  the  field  of  battle  on  the  order  of  his  imme- 
diate superior.  I  think  it  is  not  less  monstrous  to  suppose 
that  superior  orders  would  justify  a  soldier  in  the  massacre  of 


206 


SPECIAL  CONSTABLES. 


Ch.  vit.  unoffending  civilians  in  time  of  peace,  or  in  the  exercise  of 
inhuman  cruelties,  such  as  the  slaughter  of  women  and 
children,  during  a  rebellion.  The  only  line  that  presents 
itself  to  my  mind  is  that  a  soldier  should  be  protected  by 
orders  for  which  he  might  reasonably  believe  his  ofEcer  to 
have  good  grounds.  The  inconvenience  of  being  subject  to 
two  jurisdictions,  the  sympathies  of  which  are  not  unlikely 
to  be  opposed  to  each  other,  is  an  inevitable  consequence  of 
the  double  necessity  of  preserving  on  the  one  hand  the 
supremacy  of  the  law  and  on  the  other  the  discipline-  of 
the  army. 

Happily  the  employment  of  military  force  for  the  sup- 
pression of  a  riot  is  a  matter  of  rare  occurrence  in  this 
country.  When  there  is  reason  to  fear  any  tumult  with 
which  the  common  police  establishment  cannot  deal,  the 
course  usually  taken  is  to  swear  in  special  constables-.  ^  The 
acts  now  in  force  for  that  purpose  authorise  any  two  justices 
for  any  county,  &c.,  on  being  satisfied  upon  the  oath  of  any 
one  witness,  that  any  tumult,  riot,  or  felony  has  taken  place, 
or  may  be  reasonably  apprehended  within  their  jurisdiction, 
to  nominate  as  special  constables  any  persons  willing  to  act 
as  such,  and  to  administer  to  them  an  oath  to  do  their  best 
to  cause  the  peace  to  be  kept,  and  offences  to  be  prevented. 
Such  persons  have  all  the  powers  of  constables.  If  necessary, 
all  persons  may  be  required  to  act  as  special  constables,  and 
are  liable  to  be  fined  £5  if  they  refuse  to  serve  or  to  appear 
when  summoned  to  be  sworn  in. 

These  provisions  are  older  than  the  acts  by  which  police 

were  established  throughout  the  country,  and  are  now  seldom 

resorted  to,  as  bodies  of  undisciplined  men  are  apt  to  do 

more  harm  than  good  in  cases  of  riot.     On  one  memorable 

occasion,  however  (April  10,  1848),  the  swearing  in  of  a  vast 

number  of  special  constables  in  London  and  elsewhere,  as  an 

answer  to  threats  of  revolutionary  disturbance,  was-  of  much 

use,  as  a  proof  to  demonstration  of  the  fact  that  the  great 

bulk  of  the  population  were  at  that  time  opposed  to  any 

resort  to  violence  for  political  objects. 

/  1  &  2  Will.  4,  c.  41,  amended  Ijy  5  &  6  Will.  4,  c.  43.  See  also  1  &  2 
Vic,  c.  80,  as  to  special  constables  on  railroads,  canals,  and  public  works,  and 
5  &  6  Will.  4,  c.  76,  s.  83  (the  Municipal  Corporations  Act). 


MARTIAL   LAW.  207 

Martial  Law. — The  extreme  remedy  which  can  be  em-    Ch.  Vll. 
ployed  in  the  case  of  rebellion  is  a  proclamation  of  martial         ^ 
law  and  operations  consequent  upon  it.      The  law  up6n  this  J  \  f]  •' ' 
subject   was   much   discussed   in   reference   to  the  cases  of  '    ■■,  L^j 
General    Nelson  and    Mr.   Eyre,   who  were   prosecuted   for.j/'^ 
murder  in  causing  Mr.  Gordon  to  be  executed   by  martial  ^f  /- 
law  for  his  alleged  complicity  in  an  insurrection  of  negroes         ' 
which   took    place    in   1865   at    Morant   Bay   in   Jamaica. 
The  opinion  of  the  late  Mr.  Edward  James  and  myself  was 
taken  as  to  the  legal  meaning  and  effect  of  a  proclamation 
of  martial  law.     I  drew  the  opinion  and  we  both  signed  it. 
Nothing  which  took  place  in  the  proceedings  which  followed 
altered  my  view,  and  I  may  add  that  the  charge  delivered 
by  Lord  Chief  Justice  Cockburn  to  the  grand  jury  at  the 
Central  Criminal  Court  followed  almost  precisely  the  state- 
ment of  the  law  given  in  this  opinion.    ^  I  accordingly  reprint 
the  material  part  of  it  with  a  few  slight  changes  as  repre- 
senting what,  upon  the  fullest  inquiry,  I  believe  to  be  the 
law  upon  this  subject. 

^  The  expression  "  martial  law  "  has  been  used  at  different 
times  in  four  different  senses,  each  of  which  must  be  care- 
fully distinguished  from  the  others : — 

1.  In  very  early  times  various  systems  of  law  co-existed 
in  this  country — as  the  common  law,  the  ecclesiastical  law, 
the  law  of  the  Court  of  Admiralty,  &c.  One  of  these  was 
the  law  martial,  exercised  by  the  constable  and  marshal  over 
troops  in  actual  service,  and  especially  on  foreign  service.^ 

2.  The  existence  of  this  system  in  caSes  of  foreign  service 
or  actual  warfare  appears  to  have  led  to  attempts  on  the  part 
of  various  sovereigns  to  introduce  the  same  system  in  time 
of  peace  on  emergencies,  and  especially  for  the  punishment 

1  Lord  Blackburn  charged  the  Grand  Jury  of  Middlesex  in  one  of  the  pro- 
ceedings against  Mr.  Eyre  on  the  subject  in  terms  which,  so  far  as  they  relate 
to  the  common  law  of  England,  do  not  greatly  differ  from  what  is  here  stated 
(see  Mr.  Finlason's  report  of  R,  v.  Eyre,  68-73).  J  am  not  sure,  however,  that 
I  should  altogether  agree  with  the  view  taken  by  Lord  Blackburn  of  the 
eifect  of  the  Petition  of  Eight. 

2  The  case  and  opinion  will  be  found  in  Forsyth's  OonstUuHonal  Law, 
p.  551.  Mr.  Finlason  published  a  History  of  ths  Jamaica  Case,  and  other 
works  connected  with  the  subject. 

•''  As  to  this  see  the  ' '  Statutes  and  Ordinances  to  be  keped  in  time  of  Warre. " 
—Black  Boole  of  the  Admiralty,  i.  282,  &c.  See  also  an  essay  on  the  "Laws 
of  War,"  by  Professor  Mountague  Bernard,  in  the  Oxford  Essays  for  1856. 


2o8 


MEANING   OF   EXPEESSION. 


Ch.  VII.    of  breaches  of  the  peace.     ^  This  was  declared  to  be  illegal  by 
the  Petition  of  E,ight,  as  I  shall  show  more  fully  immediately. 

3.  When  standing  armies  were  introduced,  the  powers  of 
the  constable  and  marshal  fell  into  disuse,  and  the  discipline 
of  the  army  was  provided  for  by  annual  Mutiny  Acts, 
which  provided  express  regulations  for  the  purpose.  These 
regulations  are  now  contained  in  the  Army  Discipline  Act, 
1879  (42  &  43  Vic.  c.  33),  amended  by  44  &  45  Vic.  c.  57, 
and  annually  brought  into  force.  ^  They  form  a  code,  which 
is  sometimes  called  martial,  but  more  properly  military,  law. 

4.  Although  martial  law  in  sense  (1)  is  obsolete,  and  in 
sense  (2)  is  declared  by  the  Petition  of  Right  to  be  illegal, 
the  expression  has  survived,  and  has  been  applied  to  a  very 
different  thing,  namely,  to  the  common  law  right  of  the 
Crown  and  its  representatives  to  repel  force  by  force  in  the 
case  of  invasion  or  insurrection,  and  to  act  against  rebels  as 
it  might  against  invaders. 

The  provisions  of  the  Petition  of  Right  (3  Chas.  1,  c.  1)  upon 
Martial  Law  are  contained  in  ss.  7,  8,  9,  10.  These  sections 
recite  that  commissions  under  the  Great  Seal  had  lately 
been  issued  to  certain  persons  to  proceed  in  particular  cases 
"  according  to  the  justice  of  martial  law ; "  and  that  thereby 
persons  had  been  put  to  death  who,  if  deserving  death,  ought 
to  have  been  tried  in  the  ordinary  way,  whilst  others,  pleading 
privilege,  had  escaped.  Such  commissions  are  then  declared 
TO  be  "wholly  and  directly  contrary  to  the  said  laws  and 
"  statutes  of  this  your  realm,"  and  it  is  provided  that  hence- 
forth no  commissions  of  like  nature  may  issue  forth  to  any 
person  or  persons  whatsoever. 

The  commissions  themselves  explain  the  nature  of  the 
system  which  the  Petition  of  Right  prohibited.  Three, 
which  were  issued  shortly  before  it  passed,  are  given  in  17 
Rymer's  Fcedera  (pp.  43,  246,  647).  They  are  dated  re- 
spectively 24th  November,  1617;  20th  July,  1620;  30th 
December,  1624.  The  first  is  a  commission  to  certain  persocs 
for  the  government  of  Wales  and  the  counties  of  Worcester, 

^  See  Hallam's  CojMiiteJiomaZ  History,  vol.  i.  p.  240,  seventh  edition,  ch.  v. 
near  the  beginning.     See  Vol.  III.  p.  109. 
"  Grant  v.  Gould,  2  H.  Blackstone,  69. 


COMMISSIONS   OF  MARTIAL  LAW.  2O9 

Hereford,  and  Shropshire.     It  directs  them  to  call  out  the    Ch.  vil. 
array  of  the  county,  and  then  proceeds  to  direct  them  to  lead 
the  array — 

"  As  well  against  all  and  singular  our  enemies,  as  also 
'  against  all  and  singular  rebels,  traytors,  and  other  offenders 
'  and  their  adherents,  against  our  Crown  and  dignitie,  within 
'  our  said '  principalitie  and  dominions  of  North  Wales  and 
'  South  Wales,  the  marches  of  the  same,  and  counties 
'  and  places  aforesaid,  and  with  the  said  traytors  and  rebells 
'  from  tyme  to  tyme  to  fight,  and  them  to  invade,  resist, 
'  suppresse,  subdue,  slay,  kill,  and  put  to  execution  of  death, 
'  by  all  ways  and  means,  from  tyme  to  tyme,  by  your 
'  discretion. 

"  And  further  to  doe,  execute,  and  use  against  the  said 
'  enemies,  traytors,  rebells,  and  such  other  like  offenders 
'  and  their  adherents  afore-mentioned,  from  tyme  to  tyme 
'  as  necessities  shall  require,  by  your  discretion,  the  law 
'  called  martiall  lawe  according  to  the  law  martial,  and  of 
'  such  offenders  apprehended  or  being  brought  into  subjection, 
'  to  save  whom  you  shall  think  to  be  saved,  and  to  slaye, 
'  destroye,  and  put  to  execution  of  death,  such  and  as  many 
'  of  them  as  you  shall  think  meete,  by  your  good  discretion, 
'  to  be  put  to  death." 

The  second  empowers  Sir  Robert  Maunsell  to  govern  the 
crews  of  certain  ships  intended  for  the  suppression  of  piracy, 
and  gives  him  "  full  powers  to  execute  and  take  away  their 
"  life,  or  any  member,  in  form  and  order  of  martial  law." 

The  third  is  a  commission  to  the  Mayor  of  Dover,  and 
others,  reciting  that  certain  troops,  then  at  Dover,  were 
licentious,  and  empowering  them — 

"  To  proceed  according  to  the  justice  of  martial  law  against 
"  such  soldiers  with  any  of  our  list  aforesaid,  and  other  dis- 
"  solute  persons  joining  them,  or  any  of  them,  as  during 
"  such  time  as  any  of  our  said  troops  or  companies  of 
"  soldiers  shall  remain  or  abide  there,  and  not  be  transported 
"  thence,  shall,  within  any  of  the  places  or  precincts  afore- 
"  said,  at  any  time  after  the  publication  of  this  our  com- 
"  mission,  commit  any  robberies,  felonies,  mutinies,  or  other 
"  outrages  or  misdemeanours  which,  by  the  martial  law, 
VOL.  I.  P 


210  PETITION   OF  RIGHT  IN   MARTIAL   LAW. 

Ch.  VII.  "  should  or  ought  to  be  punished  with  death,  and  by  such 
"  summary  course  and  order  as  is  agreeable  to  martial  law, 
"  and  as  is  used  in  armies  in  time  of  war,  to  proceed  to  the 
"  trial  and  condemnation  of  such  delinquents  and  offenders, 
"  and  them  cause  to  be  executed  and  put  to  death  according 
"  to  the  law  martial,  for  an  example  of  terror  to  others, 
"  and  to  keep  the  rest  in  due  awe  and  obedience." 

The  distinctive  feature  in  all  these  commissions  is,  that 
they  authorise  not  merely  the  suppression  of  revolts  by 
military  force,  which  is  undoubtedly  legal,  but  the  subsequent 
punishment  of  offenders  by  illegal  tribunals,  which  is  the 
practice  forbidden  by  the  Petition  of  Right.  The  course 
taken  by  a  lieutenant-general  and  his  provost-marshal  in 
the  reign  of  Queen  Elizabeth  illustrates  this.  In  1569 
the  Earls  of  Northumberland  and  Westmoreland  had  risen 
and  besieged  and  taken  Barnard  Castle,  and  committed 
other  acts  of  open  treasonable  warfare.  The  rising  took 
place  and  was  suppressed  in  the  course  of  the  month  of 
December.  The  Earl  of  Sussex  received  from  the  Queen 
a  commission,  evidently  similar  to  the  one  already  cited, 
and  appointed  Sir  George  Bowes  his  provost -marshal.  Sir 
George  Bowes  made  a  circuit  through  Durham  and  York- 
shire, between  the  2nd  and  20th  January,  1589,  and  executed 
at  various  places  600  persons.^ 

As  to  the  legal  character  of  such  punishments.  Lord  Coke 
observes  (3rd  Inst.  c.  7,  p.  52),  "  If  a  lieutenant,  or  other  that 
"  hath  commission  of  martial  authority  in  time  of  peace,  hang 
"  or  otherwise  execute  any  man  by  colour  of  martial  law,  this 
"  is  murder,  for  this  is  against  Magna  Charta,  c.  29."  ^ 

These  authorities  seem  to  show  that  it  is  illegal  for  the 
Crown  to  resort  to  martial  law  as  a  special  mode  of  punishing 
rebellion. 

Some  authorities  look  in  the  other  direction.  In  1799, 
an  act  of  the  Irish  Parliament  (39  Geo.  3,  c.  11)  was 
passed,  the  effect  of  which  was  to  put  the  parts  of  the 
country    which    were    still    in     rebellion    under    military 

1  Sharpe's  Memorials  of  the  Sebellion,  No.  1569,  pp.  99,  113,  121,  133,  liO, 
143,  153,  163. 

2  See  too  Hale,  Sist.  Common  Law,  Zi. 


STATUTORY  REFERENCES  TO  MARTIAL  LAW.  21  X 

command,  according  to  a  system  therein  described.  The  Ch.  vil. 
preamble  states  that  the  rebellion  had  alreadj^  been  sup- 
pressed,  and  it  sets  forth  that  on  the  24th  May,  1798, 
Lord  Camden  did,  by  and  under  the  advice  of  the 
Privy  Council,  issue  his  orders  to  all  general  officers  com- 
manding his  Majesty's  forces,  to  punish  all  persons  acting, 
ordering,  or  in  any  way  assisting  in  the  said  rebellion, 
according  to  martial  la-w,  either  by  death  or  otherwise,  as  to 
them  should  seem  expedient,  and  did  by  his  proclamation 
ratify  the  same.  It  further  goes  on  to  recite,  that  "  by  the 
"  wise  and  salutary  exercise  of  his  Majesty's  undoubted 
"  prerogative  in  executing  martial  law  for  defeating  and 
"  dispersing  such  armed  and  rebellious  force,  and  in  bringing 
"  divers  rebels  and  traitors  to  punishment  in  the  most  speedy 
"  and  summary  manner,  the  peace  of  the  kingdom  has  been 
"  so  far  restored  as  to  permit  the  course  of  the  common  law 
"  partially  to  take  place,"  &c.  And  in  the  body  of  the  Act 
(section  6)  there  is  contained  a  proviso  that  ".nothing  in 
"  this  Act  shall  be  construed  to  abridge  or  diminish  the 
"  undoubted  prerogative  of  his  Majesty  for  the  public 
"  safety  to  resort  to  the  exercise  of  martial  law  against  open 
"  enemies  or  traitors." 

There  is  a  similar  recital  in  the  act  known  as  the  Insur- 
rection Act,  3  &  4  Will.  4,  c.  4  (a.d.  1833) ;  s.  40  of  this  act 
provides  that  none  of  its  provisions  "  shall  be  construed 
"  to  take  away,  abridge,  or  diminish  the  undoubted  pre- 
"  rogative  of  his  Majesty  for  the  public  safety  to  resort 
"  to  the  exercise  of  martial  law  against  open  enemies  or 
"  traitors." 

It  is  impossible  to  suppose  that  such  declarations  as  these 
should  operate  as  a  repeal  of  the  Petition  of  Eight  as  re- 
garded Ireland,  though  the  language  of  the  two  Acts  appears 
to  be  conflicting.  As,  however,  it  merely  declares  an  "  un- 
"  doubted  prerogative  of  the  Crown,"  it  cannot  refer  to  what 
the  Petition  of  Eight  expressly  denied  to  exist,  and  therefore 
it  must  probably  be  construed  to  mean  only  that  the  Crown 
has  an  undoubted  prerogative  to  attack  an  army  of  rebels  by 
regular  forces  under  military  law,  conducting  themselves  as 
armies  in  the  field  usually  do.     This  construction  is  strength- 

P  2 


212  WOLFE  tone's   CASE — MUTINY  ACTS. 

Ch.  VII.  ened  by  the  fact  that  traitors  are  coupled  with  open  enemies. 
Now,  the  force  used  against  an  invading  army  is  used  for  the 
purpose,  not  of  punishment,  but  of  conquest,  and  thus  the 
words  in  the  Irish  Act  would  mean  only  that  the  Crown  has 
an  undoubted  prerogative  to  carry  on  war  against  an  army 
of  rebels  as  it  would  against  an  invading  army,  and  to  ex- 
ercise all  such  powers  as  might  be  necessary  to  suppress  the 
rebelUon  and  to  restore  the  peace  and  to  permit  the  common 
law  to  take  effect. 

As  soon,  however,  as  the  actual  conflict  was  at  an  end  it 
would  be  the  duty  of  the  military  authorities  to  hand  over 
their  prisoners  to  the  civil  powers.  This  was  affirmed  by  the 
case  of  1  Wolfe  Tone,  who,  having  been  captured  when  the 
French  surrendered,  was  sent  up  to  Dublin  barracks,  tried  by 
court-martial  and  sentenced  to  death.  The  Court  of  King's 
Bench  immediately  granted  a  habeas  corpus,  and  directed 
the  sheriff  to  take  into  custody  the  provost-marshal  and 
officers  in  charge,  and  to  see  that  Mr.  Tone  was  not  executed. 
No  doubt  many  military  executions  took  place  during  the 
Irish  rebellion,  but  an  Act  of  Indemnity  was  passed  in 
respect  to  them,  and  it  must  always  be  remembered  that  by 
the  laws  of  war  (which  are  a  branch  of  morals  rather  than 
of  law  proper,  and  prevail  not  over  soldiers,  but  only  between 
contending  armies)  many  severities  may  be  justified,  such  as 
refusal  of  quarter  and  the  putting  to  death  of  soldiers  who 
have  surrendered  at  discretion ;  and  thus,  in  a  war  like  that 
of  1798,  much  might  be  done  which  might  pass  under  the 
name  of  martial  law,  but  which  in  reality  would  be  no 
more  than  incidents  of  ordinary  warfare  conducted  with 
unusual  rigour. 

Another  argument  is  drawn  from  the  Annual  Mutiny  Acts. 
They  contain  a  declaration  that  "  no  man  can  be  forejudged 
"  of  life  or  limb,  or  subjected  to  any  punishment  within  this 
"  realm  by  martial  law,  in  time  of  peace."  This  has  been 
construed  to  imply  ■  that  in  times  of  war  or  disturbance 
martial  law  is  legal.  As  to  this,  however,  it  must  be  re- 
membered that  in  its  original  meaning,  the  phrase  "  martial 
"  law  "  included  what  we  now  understand  by  military  law, 
1  27  St.  Tr.  624,  625, 


MARTIAL  LAW  IN   CEYLON.  213 

and  that  one  principal  object  of  the  commissions,  declared  to  Ch.  Vll. 
be  illegal  by  the  Petition  of  Right,  was  the  creation  of 
military  tribunals  without  Parliamentary  authority.  Hence 
the  words  "  in  peace,"  which  were  not  in  the  first  Mutiny 
Act,  probably  mean  that  standing  armies  and  military  courts 
were,  in  time  of  peace,  illegal,  except  in  so  far  as  they  were 
expressly  authorised  by  Parliament. 

The  whole  doctrine  of  martial  law  was  discussed  at  great 
length  before  a  Committee  of  the  House  of  Commons,  which 
sat  in  the  year  1849  to  inquire  into  certain  transactions 
which  had  taken  place  at  Ceylon.  Sir  David  Dundas,  then 
Judge  Advocate-General,  explained  his  view  at  length,  and 
was  closely  examined  upon  it  by  Sir  Eobert  Peel,  Mr. 
Gladstone,  and  others.  The  following  answers,  amongst 
others,  throw  much  light  on  the  subject  : — 

"  5437.  The  proclamation  of  martial  law  is  a  notice,  to 
"  all  those  to  whom  the  proclamation  is  addressed,  that  there 
"  is  now  another  measure  of  law  and  another  mode  of  pro- 
"  ceeding  than  there  was  before  that  proclamation. 

"  5459.  If  a  governor  fairly  and  fully  believes  that  the 
"  civil  and  military  power  which  is  with  him,  and  such 
"  assistance  as  he  might  derive  from  the  sound-hearted  part 
"  of  the  Queen's  subjects,  is  not  enough  to  save  the  life  of 
"  the  community  and  to  suppress  disorder,  it  is  his  duty 
"  to  suppress  by  this  {i.e.  by  martial  law)  or  any  other 
"  means. 

"  5476.  Q.  (Sir  Robert  Peel).  A  wise  and  courageous  man, 
"  responsible  for  the  safety  of  a  colony,  would  take  the  law 
"  into  his  own  hands,  and  make  a  law  for  the  occasion  rather 
"  than  submit  to  anarchy  ?  A.  I  think  that  a  wise  and 
"  courageous  man  would,  if  necessary,  make  a  law  to  his 
"  own  hands,  but  he  would  much  rather  take  a  law  which 
"  is  already  made  ;  and  I  believe  the  law  of  England  is,  that 
"  a  governor,  like  the  Crown,  has  vested  in  him  the  right, 
"  where  the  necessity  arises,  of  judging  of  it,  and  being 
"  responsible  for  his  work  afterwards,  so  to  deal  with  the 
"  laws  as  to  supersede  them  all,  and  to  proclaim  martial 
"  law  for  the  safety  of  the  colony. 

"5477.    (In   answer   to    Mr.   Gladstone).      I   say   he   is 


214  OPINION  OF  SIR  D.   DUNDAS, 

Ch.  VII.  "  responsible,  just  as  I  am  responsible  for  shooting  a  man  on 
"  the  king's  highway  who  comes  to  rob  me.  If  I  mistake 
"  my  man,  and  have  not,  in  the  opinion  of  the  judge  and 
"  jury  who  try  me,  an  answer  to  give,  I  am  responsible. 

"  5506.  My  notion  is,  that  martial  law  is  a  rule  of  necessity, 
"  and  that  when  it  is  exercised  by  men  empowered  to  do 
"  so,  and  they  act  honestly,  rigorously,  and  vigorously, 
"  and  with  as  much  humanity  as  the  case  will  permit,  in 
"  discharge  of  their  duty,  they  have  done  that  which  every 
"  good  citizen  is  bound  to  do." 

Martial  law  has,  accordingly,  been  proclaimed  in  several 
colonies,  viz.  at  the  Cape  of  Good  Hope,  in  Ceylon,  in 
Jamaica,  and  in  Demerara. 

The  views  thus  expressed  by  Sir  David  Dundas  appear  to 
me  to  be  substantially  correct.  According  to  them  the  words 
"  martial  law,"  as  used  in  the  expression  "  proclaiming  martial 
"  law,"  might  be  defined  as  the  assumption  for  a  certain 
time,  by  the  officers  of  the  Crown,  of  absolute  power,, 
exercised  by  military  force,  for  the  purpose  of  suppressing 
an  insurrection  or  resisting  an  invasion.  The  "  proclamation  " 
of  martial  law,  in  this  sense,  would  only  be  a  notice  to  all 
whom  it  might  concern  that  such  a  course  was  about  to  be 
taken.  I  do  not  think  it  is  possible  to  distinguish  martial 
law,  thus  described  and  explained,  from  the  common  law 
duty  which  is  incumbent  on  every  man,  and  especially  on 
every  magistrate,  to  use  any  degree  of  physical  force  that 
may  be  required  for  the  suppression  of  a  violent  insurrection, 
and  which  is  incumbent  as  well  on  soldiers  as  on  civilians,, 
the  soldiers  retaining  during  such  service  their  special 
military  obligations.  Thus,  for  instance,  I  apprehend  that 
if  martial  law  had  been  proclaimed  in  London  in  1780,  such 
a  proclamation  would  have  made  no  difference  whatever  in 
the  duties  of  the  troops  or  the  liabilities  of  the  rioters. 
Without  any  such  proclamation  the  troops  were  entitled, 
and  bound,  to  destroy  life  and  property  to  any  extent  which 
might  be  necessary  to  restore  order.  It  is  difficult  to  see 
what  further  power  they  could  have  had,  except  that  of 
punishing  the  offenders  afterwards,  and  this  is  expressly 
forbidden  by  the  Petition  of  Right. 


WRIGHT  V.  FITZGERALD.  21$ 

I  may  sum  up  my  view  of  martial  law  in  general  in  the    Ch.  VII. 
following  propositions : — 

1.  Martial  law  is  the  assumption  by  officers  of  the  Crown 
of  absolute  power,  exercised  by  military  force,  for  the  suppres- 
sion of  an  insurrection,  and  the  restoration  of  order  and 
lawful  authority. 

2.  The  officers  of  the  Crown  are  justified  in  any  exertion 
of  physical  force,  extending  to  the  destruction  of  life  and 
property  to  any  extent,  and  in  any  manner  that  may  be 
required  for  the  purpose.  They  are  not  justified  in  the  use 
of  cruel  and  excessive  means,  but  are  liable  civilly  or 
criminally  for  such  excess.  They  are  not  justified  in  inflict- 
ing punishment  after  resistance  is  suppressed,  and  after  the 
ordinary  courts  of  justice  can  be  reopened. 

The  principle  by  which  their  responsibility  is  measured  is 
well  expressed  in  the  case  of  ^  Wright  v.  Fitzgerald.  Wright 
was  a  French  master  of  Olonmel,  who,  after  the  suppression 
of  the  Irish  rebellion  in  1798,  brought  an  action  against 
Mr.  Fitzgerald,  the  sheriff  of  Tipperary,  for  having  cruelly 
flogged  him  without  due  inquiry.  Martial  law  was  in  full 
force  at  that  time,  and  an  Act  of  Indemnity  had  afterwards 
been  passed,  to  excuse  all  breaches  of  the  law  committed  in 
the  suppression  of  the  rebellion.  In  summing  up,  Mr.  Justice 
Chamberlain,  with  whom  Lord  Yelverton  agreed,  said : — 
"  The  jury  were  not  to  imagine  that  the  legislature,  by 
"  enabling  magistrates  to  'justify  under  the  Indemnity  Bill, 
"  had  released  them  from  the  feelings  of  humanity,  or  per- 
"  mitted  them  wantonly  to  exercise  power,  even  though  it 
"  were  to  put  down  rebellion.  They  expected  that  in  all  cases 
"  there  should  be  a  grave  and  serious  examination  into  the 
"  conduct  of  the  supposed  criminal,  and  every  act  should  show 
"  a  mind  intent  to  discover  guilt,  not  to  inflict  torture.  By 
"  examination  or  trial  he  did  not  mean  that  sort  of  examination 
"  and  trial  which  they  were  now  engaged  in,  but  such  ex- 
"  amination  and  trial — the  best  the  nature  of  the  case  and 
"  existing  circumstances  should  allow  of  That  this  must 
"  have  been  the  intention  of  the  legislature  was  manifest  from 
"  the  expression  '  magistrates  and  all  other  persons,'  which 
1  27  Si.  Tr.  765. 


2l6  PRELIMINAEY   INQUIRY. 

Ch.  VII.  "  provides  that  as  every  man,  whether  magistrate  or  not,  was 
"  authorised  to  suppress  rebellion,  and  was  to  be  justified 
"  by  that  law  for  his  acts,  it  is  required  that  he  should  not 
"  exceed  the  necessity  which  gave  him  that  power,  and  that 
"  he  should  show  in  his  justification  that  he  had  used  every 
"  possible  means  to  ascertain  the  guilt  which  he  had  punished ; 
"  and,  above  all,  no  deviation  from  the  common  principles  of 
"  humanity  should  appear  in  his  conduct." 

Wright  recovered  £500  damages,  and  when  Mr.  Fitzgerald 
applied  to  the  Irish  Parliament  for  an  indemnity,  he  could 
not  get  one. 

3.  The  courts-martial,  as  they  are  called,  by  which  martial 
law,  in  this  sense  of  the  word,  is  administered,  are  not, 
properly  speaking,  courts-martial  or  courts  at  all.  They  are 
merely  committees  formed  for  the  purpose  of  carrying  into 
execution  the  discretionary  power  assumed  by  the  Govern- 
ment. On  the  one  hand,  they  are  not  obliged  to  proceed  in 
the  manner  pointed  out  by  the  Mutiny  Act  and  Articles  of 
War.  On  the  other  hand,  if  they  do  so  proceed,  they  are 
not  protected  by  them  as  the  members  of  a  real  court-martial 
might  be,  except  so.  far  as  such  proceedings  are  evidence  of 
good  faith.  They  are  justified  in  doing,  with  any  forms  and 
in  any  manner,  whatever  is  necessary  to  suppress  insurrection, 
and  to  restore  peace  and  the  authority  of  the  law.  They  are 
personally  liable  for  any  acts  which  they  may  commit  in 
excess  of  that  power,  even  if  they  act  in  strict  accordance 
with  the  Mutiny  Act  and  Articles  of  War. 

1  PEELIMINAEY  INQUIRY. 

Before  the  establishment  of  justices  of  the  peace,  cases 
of  public  importance  were  inquired  into  before  the  Privy 
Council,  as  I  have  already  observed ;  but  there  seems  to  have 
been  no  preliminary  inquiry  at  all  in  regard  to  common 
ofi'ences,  except  in  the  single  case  of  the  coroner's  inquest.  The 
justice  of  the  peace  was  at  first  little  more  than  a  constable  on 
a  large  scale,  whose  power  even  to  issue  a  warrant  for  the 

1  For  the  present  law  on  this  subject,  and  on  incidental  procedure,  see 
Dig.  Crim.  Proc.  ch.  xiii. — xvii.,  arts.  99-140. 


coroners'  inquests.  217 

apprehension  of  suspected  persons  was  acquired  by  practice;  Ch.  VIT. 
and  was  not  derived  from  express  parliamentary  authority. 
In  early  times  the  formal  accusation  was  often,  perhaps 
usually,  the  first  step  in  the  procedure,  and  the  prisoner  was 
not  arrested  until  after  he  had  been  indicted.  This  may 
still  occur  under  the  existing  law,  but  such  an  occurrence 
is  not  usual.  In  almost  every  case  in  the  present  day  a 
suspected  person  appears  before  a  justice.  Witnesses  are 
then  examined,  he  is  either  discharged,  bailed,  or  im- 
prisoned till  trial,  and  is  then  indicted  and  tried. 

The  earliest  instance  that  occurs  of  any  sort  of  prelimi- 
nary inquiry  into  crimes  with  a  view  to  subsequent  pro- 
ceedings is  the  case  of  the  coroner's  inquest.  Coroners, 
according  to  ^Mr.  Stubbs,  originated  in  the  year  1194,  but  the 
first  authority  of  importance  about  their  duties  is  to  be 
found  in  Bracton.  ^  He  gives  an  account  of  their  duties  so 
full  as  to  imply  that  in  his  day  their  office  was  comparatively 
modem.  The  Statute  de  Officio  Coronatoris  (4  Edw.  1, 
st.  2,  A.D.  1276)  is  almost  a  transcript  of  the  passage  in 
Bracton.  It  gives  the  coroner's  duty  very  fully,  and  is  to 
this  day  the  foundation  of  the  law  on  the  subject.  The 
following  are  its  main  provisions : — "  A  coroner  of  our  Lord 
"  the  King  ought  to  inquire  of  these  things  if  he  be  certified 
"  by  the  King's  bailiffs  or  other  honest  men  of  the  country ; 
"  first  he  shall  go  to  the  places  where  any  be  slain,  or 
"  suddenly  dead,  or  wounded,  or  where  houses  are  broken,  or 
"  where  treasure  is  said  to  be  found,  and  shall  forthwith 
"  command  four  of  the  next  towns,  or  five,  or  six  [i.e.  the 
"  reeve  and  four  men  from  each]  to  appear  before  him  in 
"  such  a  place :  when  they  are  come  thither  the  coroner 
"  upon  the  oath  of  them  shall  inquire  in  this  manner,  that 
"  is,  to  wit,  if  they  know  where  the  person  was  slain,  whether 
'■'  it  was  in  any  house,  field,  bed,  tavern,  or  company,  and 

1  CoTist.  Hist.  i.  505.  For  present  law,  see  Dig.  Grim.  Proc.  eh.  vii.  arts. 
43-60,  as  to  appointment  and  removal  of  coroners,  as  to  inqiuests,  pro- 
cedure, ha.,  arts.  207-232. 

2  Bracton,  Ub.  iii.  (De  Corona)  oh.  v.  Sir  T.  Twiss  discusses  the  question 
whether  Bracton  copied  from  the  statute  or  the  statute  from  Bracton,  and 
gives  reasons  in  support  of  the  latter  view  in  the  introduction  to  vol.  ii. 
of  his  edition  of  Bracton,  p.  Ixi.  The  Statutum  'Walliae  contains  provisions 
substantially  identical  with  those  of  4  Edw.  1. 


2l8 


DEPOSITIONS  BEFORE   CORONER. 


Ch.  VII.  "  who  were  there.  Likewise  it  is  to  he  inquired  who  were 
"  culpahle  either  of  the  act  or  of  the  force,  and  who  were 
"  present,  either  men  or  women,  and  of  what  age  soever 
"  they  be,  if  they  can  speak  or  have  any  discretion,  and  how 
"  many  soever  be  found  culpable  in  any  of  the  manners 
"  aforesaid,  they  shall  be  taken  and  delivered  to  the  sheriff, 
"  and  shall  be  committed  to  the  gaol." 

If  any  one  is  found  guilty  of  the  murder,  the  coroner  is 
immediately  to    value  his  property  ^ "  as   if  it   were  to  be  • 
"  immediately  sold,"  and  is  to  deliver   it  to   the  township^ 
which  is  to  answer  for  it  to  the  justices. 

The  statute  contains  important  provisions  as  to  appeals 
which  I  pass  over  for  the  present.  It  is  silent  as  to  the 
course  to  be  taken  where  houses  are  broken,  though  the 
opening  words  of  the  statute  refer  to  such  cases.  In  practice 
the  coroner's  duties  have  been  confined  to  cases  of  sus- 
picious death  and  treasure  trove. 

The  coroner's  duties  in  respect  of  inquiries  into  the  cause 
of  suspicious  deaths  have  hardly  varied  at  all  from  the  days 
of  Edward  I.  to  our  own,  except  as  regards  the  method  of 
summoning  jurors,  and  witnesses,  and  other  details.  The 
statute  book  contains  a  variety  of  provisions  as  to  matters  of 
secondary  importance  connected  with  inquests.  The  only 
ones  which  need  here  be  mentioned  are  the  statute  of  Philip 
and  Mary  (1  &  2  Phil.  &  Mary,  c.  13,  s.  5,  1554),  which 
required  a  coroner  to  "  put  in  writing  the  effect  of  the  evidence 
"  given  before  him  being  material,"  and  to  bind  over  the 
witnesses  to  appear  at  the  trial  of  the  person  accused.  This 
act  remained  in  force  till  1826,  when  it  was  superseded 
by  7  Geo.  4,  c.  64,  s.  4,  which  provides  that  every  coroner 
upon  any  inquisition  before  him  taken  whereby  any  one 
is  indicted  for  manslaughter  or  murder,  or  as  an  accessory 
to  murder  before  the  fact,  shall  put  in  writing  the  evidence 
given  to  the  jury  before  him,  or  as  much  thereof  as  shall 
be  material,  and  shall  have  authority  to  bind  over  the 
witnesses  to  give  evidence  at  the  trial,  and  certify  and 
return  the  depositions  and  inquisition  to  the  court  before 
which  the  person  indicted  is  to  be  tried.  The  inquisition 
1  "Sicut  statim  vendi  possunt." 


BEPOSITIONS  BEFORE  JUSTICE.  219 

of   the  coroner  always  was  and  still  is  a  formal  accusation    Ch.  VI  i. 

of  any  person   found  by  it  to  have    committed   murder    or       

manslaughter,  or  to  have  found  and  concealed  treasure,  and 
a  person  may  be  tried  upon  such  an  inquisition  without  any 
further  accusation. 

It  is  singular  that,  with  the  law  as  to  coroners  in  full 
operation  since  1276,  no  duties  of  the  same  sort  should  have 
been  imposed  on  the  justices  of  the  peace  appointed  forty- 
eight  years  afterwards,  in  1324. 

Whatever  may  have  been    the  reason,  the  fact  is  certain 
that  no  allusion  is  made  to  the  holding  of  any  sort  of  pre- 
liminary inquiry  by   justices  in    any  statute    passed   before 
the  statutes  of  Philip  and  Mary  already  casually  referred  to. 
It  is  probable,  however,  that  from  the   very   earliest  times 
magistrates  would  make  a  more  or  less  formal  inquiry  before 
they  took  steps  towards  the  arrest  or  bail   of  a  suspected 
person,  and  it  is  not  at  all  improbable  that  the  two  statutes  in 
question  may  have  given  legal  sanction  to  a  practice  which 
had   grown  up  without  express    statutory  authority.      The 
statutes   were   as   follows.     By  the   1   &   2   Phil.   &  Mary, 
c.  13  (1554),  it  is  enacted  that,  when  any  person  arrested  for 
manslaughter  or  felony,  or  suspicion  of  manslaughter  or  felony, 
being  bailable  by  the  law,  is  brought  before  any  two  justices, 
they  are  "  to  take  the  examination  of  the  said  prisoner  and 
"  information  of  them  that  bring  him  of  the  fact  and  cir- 
"  cumstances  thereof,  and  the  same  or  as  much  thereof  as 
"  shall  be  material  to  prove  the  felony  shall  be  put  in  writing 
"  before  they  make  the  bailment/'    The  examination  and  bail- 
ment are  to  be  certified  to  the  court,  and  "  all  such  as  do  de- 
"  clare  anything  material  to  prove  the  said  murder  "  (murder  is 
not  mentioned  in  the  earlier  part  of  the  act),  "  manslaughter, 
"  offences,  or  felonies,  or  to  be  accessory  or  accessories  to  the 
"same   as  is  aforesaid"  (it   is    remarkable  that   the   word 
"  witnesses "  is  not  used)  "  are  to  be  bound  over  to   appear 
"  to  give  evidence  at  the  court  of  gaol  delivery."  This  act  was 
confined  to  the  case  of  prisoners  admitted  to  bail.     It  was 
followed  in  the  next  year  (1555)  by  an  act  (2  &  3  Phil.  & 
Mary,  c.  10),  which  recites  that  it  "  does  not  extend  to  such 
"  prisoners  as  shall  be  brought  before  any  justice  of  peace 


220  SIR  JOHN  JERVIS  S  ACT. 

Ch.  VII.  "  for  manslaughter  or  felony,  and  by  such  justices  shall  be 
"  committed  to  ward  for  the  suspicion  of  such  manslaughter 
"  or  felony  and  not  bailed,  in  which  case  the  examination 
"  of  such  prisoner  and  of  such  as  shall  bring  him  is  as 
"  necessary  or  rather  more  than  where  such  prisoner  shall 
"  be  let  to  bail."  The  act  then  goes  on  to  re-enact,  with 
respect  to  cases  in  which  the  prisoners  are  committed,  the 
provisions  of  the  act  of  the  preceding  year  .as  to  prisoners 
bailed.^ 

These  statutes  continued'  to  be  in  force  till  the  year  1826, 
when  they  were  repealed,  and  re-enacted,  and  extended  to 
misdemeanour  by  7  Geo.  4,  c.  64,  ss.  2  &  3,  and  this  act 
was  in  its  turn  repealed  and  re-enacted  in  a  more  elaborate 
form,  with  some  important  variations,  by  11  &  12  Vic.  c.  42 
(1848),  which  is  known  as  Sir  John  Jervis's  Act. 

The  important  provisions  of  Sir  John  Jervis's  Act  upon  the 
subject  of  the  preliminary  inquiry  are  these.  ^  The  witnesses 
are  to  be  examined  in  the  presence  of  the  accused  person,  and 
he  is  to  be  at  liberty  to  cross-examine  them.  The  depositions 
are  to  be  written  down  and  signed  by  the  magistrate  and  by  the 
witnesses.  After  all  the  witnesses  have  been  examined,  the 
justice  is  to  say  to  the  accused,  "  Having  heard  the  evidence, 
"  do  you  wish  to  say  anything  in  answer  to  the  charge  ?  You 
"  are  not  obUged  to  say  anything  unless  you  desire  to  do  so, 
"  but  whatever  you  say  will  be  taken  down  in  writing  and 
"  may  be  given  in  evidence  against  you  at  your  trial." 
Whatever  he  says  is  then  taken  down  and  returned  with  the 
depositions.  ^  The  accused  person  is  then  to  be  asked  whether 
he  wishes  to  call  any  witnesses,  and  if  he  does,  they  must  be 
examined  and  cross-examined,  and  their  depositions  must  be 
taken  in  the  same  manner  as  those  of  the  witnesses  for  the 
prosecution.  *  If  the  evidence  is  in  the  opinion  of  the 
justices  not  sufficient  to  put  the  accused  person  on  his  trial, 
they  are  to  discharge  him.  If  they  think  it  "  raises  a  strong 
"or  probable  presumption  of"  his  "guilt,"  they  are  to 
commit  him  for  trial  or  admit  him  to  bail.     ^The  accused  is 

1  The  historical  reason  for  these  enactments  will  be  found  below,  p.  236. 
"  11  &  12  Vic.  c.  42,  s.  1,7.    See  Dig.  Grim.  Proc.  art.  109,  &c. 
s  30  &  31  Vic.  c.  35,  s.  3.  ^  S.  25.  "  S.  27. 


JEEVIS'S  ACT  AND  ACT  OF  PHILIP  AND   MART   COMPAEED.  221 

entitled  to  copies  of  the  depositions,    and  his  right  to  be    Ch.  Vll. 
represented  by    counsel    or  by  a   solicitor    is  incidentally 
assumed  in  ^one  section  of  the  act,  and  is,  I  believe,  never 
disputed  in  practice. 

A  comparison  of  these  provisions  with  those  of  the  acts  of 
Philip  and  Mary  shows  several  changes  of  the  utmost  import- 
ance in  one  of  the  most  important  parts  of  criminal  procedure. 

Speaking  generally,  the  difference  between  the  procedure 
established  in  the  sixteenth  century  and  the  procedure  of  the 
nineteenth  is  that  under  the  first  the  magistrate  acts  the 
part  of  a  public  prosecutor,  whereas  under  the  second  he 
occupies  the  position  of  a  preliminary  judge.  This  appears 
in  every  detail.  Under  the  acts  of  Philip  and  Mary  the 
accused  person  is  to  be  examined.  This  meant  that  he 
was  to  be  fully  questioned  as  to  all  the  circumstances 
connected  with  his  supposed  offence.  Under  the  act  of 
Victoria  he  can  be  asked  no  questions  at  all,  though  he  is 
invited  to  make  any  statement  he  pleases,  being  cautioned 
that  it  will  be  taken  down  and  may  be  given  in  evidence 
against  him.  Under  the  statutes  of  Philip  and  Mary  the 
examination  of  the  witnesses  and  the  recording  of  their 
depositions  was  intended  only  for  the  information  of  the  court. 
The  prisoner  had  no  right  to  be,  and  probably  never  was, 
present.  Under  the  statute  of  Victoria  the  witnesses  are  to 
be  examined  in  the  prisoner's  presence,  and  may  be  cross- 
examined  by  him,  his  counsel,  or  his  attorney.  Under  the 
statute  of  Philip  and  Mary  the  depositions  were  to  be 
returned  to  the  court,  but  there  is  evidence  to  show  that 
the  prisoner  was  not  allowed  even  to  see  them.  Under  the 
statute  of  Victoria  he  is  entitled  to  a  copy  of  them.  In  all 
these  particulars  the  change  is  uniformly  in  the  same  direc- 
tion. The  object  of  the  earlier  statute  is  to  expose  and 
detect  a  man  assumed  to  be  guilty.  In  the  later  statute, 
the  object  is  a  full  inquiry  into  his  guilt  or  innocence. 

One  circumstance  must  here  be  mentioned,  which  makes  a 
distinction  of  considerable  importance  between  the  prehm- 
inary  criminal  procedure  of  our  own  country  and  that  of  all 
the  countries  which  used  the  civil  law,     I  refer  to  the  absence 

1  S.  17. 


222  TORTURE  IN   ENGLAND. 

CH.  VII.    of  the  use  of  torture  as  a  means  of  collecting  evidence  whilst 
the  prisoner  was  in  custody.     It  was  never  recognised  as  a 
part  of  the  law  of  England,  and  its  illegality  was  made  the 
subject  of  much  boasting  by  some  of  the  earliest  panegyrists 
of  English  institutions,  and  in  particular  Fortescue,  Smith, 
and  Coke.     There  is,  however,  proof  that  it  was  practised 
for  the  purpose  of  obtaining  evidence  under  Henry  VIII.  and 
his  three  children,  and  also  during  the  reigns  of  James  I.  and 
Charles  I.,  and  that  not  only  in  political  cases  but  also  in 
the  case  of  common  crimes.     The  proof  of  this  is  given  in 
Jardine's  Reading  on  Torture,  in  the  appendix  to  which  work 
there  are  printed  fifty-five  letters  taken  from  the  Council 
books,  the  first  dated  5th  November,   1551,   and  the    last 
21st  May,  1640,  authorising  or  otherwise  relating  to  the  use 
or  the  threat  of  torture  in  a  variety  of  instances.     In  how 
many  cases  it  may  have  been  used  without  such  authority, 
and  when  the  practice  began,  no  one  can  now  even  guess  with 
any  plausibility.     Why  torture  was  not  employed  in  this  as 
well  as  in  other  countries  it  is  difficult  to  say.     Probably  the 
extremely  summary  character  of  our  early  methods  of  trial, 
and  the  excessive  severity  of  the  punishments  inflicted,  had 
more  to  do  with  the  matter  than  the  generalities  of  Magna 
Charta  or  any  special  humanity  of  feeling.     People  who,  with 
no  sort  of  hesitation,  hanged  a  man  who  could  not  read,  or  who 
being  able  to  read   had  married  a  widow,  simply  because 
twelve  of  his  neighbours,  reporting  the  village  gossip,  said  he 
had   stolen   a   dress   worth   two    shillings,  cannot  be    called 
scrupulously  humane.     If  their  conscience  had  declined  to 
hang  him  till  they  had  tortured  him  into  a  confession  capable 
of  being  verified  independently,  they  would  perhaps  have  been 
a   little  more   humane,   though  this  certainly  admits    of  a 
doubt.i 

However  this  may  be,  it  is  still  possible  to  give  evidence 
of  the  manner  in  which  the  old  system  of  preliminary 
investigations  worked.  In  several  of  the  trials  reported 
under  the    Stuarts,  the  justice  who  had  got  up  the  case 

'  The  subject  is  fully  described  in  Mr.  Lea's  Superstition  and  Force, 
Philadelpbia,  1878,  371-522.  According  to  Mr.  Lea,  torture  was  gi'adually 
introduced  throughout  the  Continent  in  the  course  of  the  fourteenth,  fifteenth, 
and  sixteenth  centuries.   It  was  connected  with  the  revival  of  the  Roman  law. 


DUTIES    OF  JUSTICES   UNDER  THE  STUARTS.  223 

was  the  principal  witness  against  the  prisoner,  and  detailed  at   Ch.  VII. 
length  the  steps  which  he  had  taken  to  apprehend  him.     The 
following  are  instances : — 

^  In  1664  Colonel  Turner  was  tried  for  a  burglary,  together 
with  his  wife  and  three  of  his  sons.     The  principal  witness 
was   Sir    Thomas   Aleyn,    an    alderman   of    the   city.      He 
said:   "Mr.  Francis  Tryon"   (the   person   robbed)  "put  me 
"  on  the  business  to  examine  it.     I  went  and  examined  the 
"  two  servants — the  man  and  the  maid.   Upon  their  examina- 
"  tion  I  found  they  had  supped  abroad  at  a  dancing-school  and 
"  had  been  at  cards."  ..."  The  man  confessed  he  had  been 
"  abroad  twenty  or  thirty  times  at  Colonel  Turner's  house  at 
"  supper  about  a  year  since.     The  maid  denied  they  had 
"  been  there  at  all;  but  it  is  true  the  man's  saying  he  supped 
"  there  (though  it  was  false)  was  the  first  occasion  of  sus- 
"  picion  against  Colonel  Turner.     When   I  had   examined 
"  these  two,  I  went  to  the  examination  of  Turner,  where  he 
"  was  all  that  day,  where  at  night  ?     He  told  me  at  several 
"  places  and  taverns,  and  in  bed  at  nine  of  the  clock,  and 
"  was  called  out  of  his  bed  ;  but  having  myself  some  suspicion 
"  of  him,  I  wished  him  to  withdraw.     I  told  Tryon  that  I 
"  believed,  if  he  was  not  the  thief,  he  knew  where  the  things 
"  were."    -Aleyn  afterwards  charged  Turner ;  "  but  he  denied 
"  it,  but  not  as  a  person  of  his  spirit,  which  gave  me  some 
"  cause    of    further    suspicion."      He     afterwards     searched 
Turner's  house   unsuccessfully  ;  but  next   day  received  in- 
formation from  one  of  the  other  aldermen  which  enabled 
him  to  track  Turner  into  a  shop  in  the  Minories,  where  he 
found  him  in  possession  of  money  which  he  believed  to  be 
part  of  the  stolen  property.     He  pressed  him  to  account  for 
it,  took  him  to  Tryon,  managed  matters  so  as  to  induce  him 
to  admit  to  Tryon,  upon  Tryon' s  engaging  not  to  prosecute, 
that  he  knew  where  the  property  was,  and,  after  all  sorts 
of  manoeuvres,  got  him  to  cause  his  wife  to  give  up  a  number 
of  Tryon's  jewels,   and  finally  committed  him   and   her  to 
Newgate.     In   short,  he  acted   throughout  the  part  of  an 
exceedingly  zealous  and  by  no  means  scrupulous  detective 
armed  with  the  authority  of  a  magistrate.     ^  He  detailed  in 
1  6  St.  Tr.  619,  630.  ^  /j,  572.575, 


224  CASES   OF  CONINGSMARK  AJSTD  BUSBY. 

Ch.  VII.  court  the  whole  of  his  proceedings,  which  were  very  ex- 
peditious.  "Thursday,"  said  one  of  the  judges,  "was  the 
"  robbery,  Friday  he  was  examined,  Saturday  the  money  was 
"  brought,  and  that  night  the  jewels  were  brought  and  he 
"  committed." 

In  the  famous  case  of  ^  Count  Coningsmark  and  his  alleged 
agents,  who  were  tried  for  the  murder  of  Mr.  Thynne,  a 
similar  part  was  taken  by  Sir  John  Eeresby,  the  committing 
magistrate.  Just  as  he  was  going  to  bed,  "Mr.  Thynne's 
"  gentleman  came  to  me  to  grant  a  hue  and  cry,  and  soon 
"  after  the  Duke  of  Monmouth's  page  to  desire  me  to  come 
"  to  his  master  at  Mr.  Thynne's  lodging,  sending  his  coach 
"  to  fetch  me."  Reresby  immediately  went  to  Mr.  Thynne's 
and  granted  warrants  to  search  for  several  suspected  persons. 
At  last  a  Swede  was  brought  before  him  who  confessed  that  he 
served  a  German  captain  who  had  had  a  quarrel  with  Thynne. 
Upon  information  obtained  from  the  Swede,  "  having  searched 
"  several  houses  till  six  o'clock  in  the  morning,  having  been 
"  in  chase  almost  the  whole  night,  I  personally  took  the 
"  captain  at  the  house  of  a  Swedish  doctor  in  Leicester 
"  Fields,  I  going  first  into  the  room."  Other  suspected 
persons  being  afterwards  arrested  were  brought  to  this  house 
and  ^  examined,  and  finally  were  committed  for  trial  to  the 
Old  Bailey,  after  being  examined  on  several  occasions  before 
the  King  in  Council. 

Other  cases  are  mentioned  in  Reresby' s  memoirs  in  which 
he  took  a  similar  part.  ^  For  instance,  under  the  date  of  6th 
of  July,  1683,  after  referring  to  the  Rye  House  Plot,  he 
says:  "Six  Scotchmen  being  stopped  at  Ferry  Bridge,  by 
"  directions  from  the  Secretary,  coming  from  London  towards 
"  Scotland,  and  being  but  slightly  examined  by  the  justice 
"  of  the  peace,  I  caused  them  to  confess  much  more  to  me, 
"  which  I  transmitted  to  the  Secretary,  as  also  the  examina- 
"  tion  of  another  of  that  nation,  who  was  sent  to  York  Castle, 
'■  and  proved  a  very  dangerous  rogue." 

*In  1681,  George  Busby  was  tried  at  Derby  assizes  for  being 

'  9  St.  Tr.  1,  and  the  Memoirs  of  Sir  John  Eeresby,  pp.  235-241. 

2  9  St.  Tr.  pp.  122-124. 

'  Memoirs,  p.  281.  *  8  St.  Tr.  525. 


PROVISIONS  AS  TO   TREASON  AFTER    1688.  225 

a  Popish  priest.     The  chief  witness  against  him  was  Mr.    ch.  Vli. 

Gilbert,  a  magistrate  of  the  county,  who  gave  a  long  account       

of  the  manner  in  which  he  went  on  several  occasions  to  the 
house  where  he  suspected  Busby  to  be.  On  one  occasion  he 
took  "  a  crimson  damask  vestment,  wherein  was  packed  a 
"  stole,  a  maniple  of  the  same  (as  the  Papists  call  them),  an 
"  altar-stone,  surplice,  and  a  box  of  wafers,  mass  books,  and 
"  divers  other  Popish  things."  All  these  he  took  to  Derby 
assizes  and  showed  them  to  the  judge,  who  directed  them  to 
be  burnt,  but  Mr.  Gilbert  "  entreated  his  favour  that  I  might 
"  send  them  again  to  the  same  place  for  two  or  three  days  to 
"  make  the  priest  more  confident."  He  went  back  accord- 
ingly and  made  a  most  elaborate  search,  having  a  singular 
series  of  conversations  with  people  in  the  house,  till  at  last 
he  took  the  prisoner  in  a  curiously  contrived  hiding-hole, 
near  some  chimneys,  and  carried  him  to  Derby,  "  where  after 
"  I  had  taken  his  examination,  I  made  a  mittimus  and  com- 
"  mitted  him  to  Derby  gaol." 

I  do  not  think  any  part  of  the  old  procedure  operated  more 
harshly  upon  prisoners  than  the  summary  and  secret  way  in 
which  justices  of  the  peace,  acting  frequently  the  part  of 
detective  officers,  took  their  examinations   and   committed 
them  for   trial.     It  was   a   constant  and   most  natural  and 
reasonable  topic   of   complaint  by   the   prisoners  who  were 
tried  for  the  Popish  Plot  that  they  had  been  taken  without 
warning,  kept  close  prisoners  from  the  time  of  their  arrest, 
and  kept  in  ignorance  of  the  evidence  against  them  till  the 
very  moment  when  they  were  brought  into  court  to  be  tried. 
This  is  set  in   a   strong  light   by  the  provisions  of  the 
celebrated  act  "  for  regulating  of  trials  in  cases  of  treason 
and  misprision  of  treason"  (7  &  8  Will.  3,  c.  3),  and  those 
of  ^s.  14  of  the  Act  of  Union  with  Scotland  (7  Anne,  c.  21). 
The  first  of  these  acts  provides  that  every  person  accused 
of  high-treason  shall  have  a  true  copy  of  the  whole  indict- 
ment delivered  to  him  five  days  at  least  before  he  is  tried. 
The  second  extends  the  time  for  the  delivery  of  the  copy  of 
the  indictment  to  ten  days  before  the  trial,  and  enacts  that  at 
the  same  time  that  the  copy  of  the  indictment  is  delivered 
^  In  tlie  Revised  Statutes.     In  other  editions  it  is  s.  11. 
VOL.  I.  Q 


2  26  EARLIER  PRACTICE. 

Ch.  VII.  "a  list  of  the  witnesses  that  shall  be  produced  on  the  trial 
"  for  proving  the  said  indictment,  and  of  the  jury,  mentioning 
"  the  names,  professions,  and  place  of  abode  of  the  said 
"  witnesses  and  jurors,  be  also  given."  This  was  considered  as 
an  extraordinary  effort  of  liberality.  It  proves,  in  fact,  that  even 
at  the  beginning  of  the  eighteenth  century,  and  after  the  expe- 
rience of  the  state  trials  held  under  the  Stuarts,  it  did  not  occur 
to  the  legislature  that,  if  a  man  is  to  be  tried  for  his  life,  he 
ought  to  know  beforehand  what  the  evidence  against  him  is, 
and  that  it  did  appear  to  them  that  to  let  him  know  even 
what  were  the  names  of  the  witnesses  was  so  great  a  favour 
that  it  ought  to  be  reserved  for  people  accused  of  a  crime 
for  which  legislators  themselves  or  their  friends  and  con- 
nections were  likely  to  be  prosecuted.  It  was  a  matter 
of  direct  personal  interest  to  many  members  of  parliament 
that  trials  for  political  offences  should  not  be  grossly  un- 
fair, but  they  were  comparatively  indifferent  as  to  the  fate 
of  people  accused  of  sheep-stealing,  or  burglary,  or  murder. 

It  is  probable,  however,  that  the  practice  of  the  magistrates 
varied,  and  that  where  there  was  no  particular  reason,  political 
or  otherwise,  for  keeping   a  prisoner  in  the  dark,  he  was 
allowed,  during  the  interval  between  the  commitment  and 
trial,  to  see  his  friends  and  make  such  preparation  for  his  trial 
as  he  could.    In  some  remarks  ^  by  Sir  John  Hawles  (Solicitor- 
General  in  the  reign  of  William  III.),  on  the  trial  of  Colledge, 
the  Protestant  joiner,  it  is  said  that  in  murder  and  all  other 
crimes,  the  prisoner  is  always  permitted  to  advise  with  counsel 
before  his  trial,  and  that  all  persons  are  allowed  in  such  cases 
to  have  free  and  private  access  to  him,  and  the  usage  followed 
in  the  political  trials  of  the  seventeenth  century  is  strongly 
reflected  upon.     This  irregular  and  unsystematic  good  nature 
may  have  been  sufficient  in  practice  to  prevent  the  infliction 
of  gross   injustice   upon  persons   capable   of  making   their 
complaints  heard,  but  till  the  year  1849  prisoners  certainly 
had  no  legal  right  to  know  beforehand  what  evidence  was 
to  be  given  against  them.     I  will  give  a  single  illustration 
of  this,  and  in  giving  it,  I  may  observe  that  it  is  not  so 
easy  as  it  might  be  expected  to  be,  to  discover  accounts  of 
1  8  St.  Tr.  723-726,  732. 


MODERN   PRACTICE  AS  TO  DEPOSITIONS.  2  27 

routine  proceedings  which  are  not  recorded,  and  do  not  be-  Ch.  viz. 
come  the  subjects  of  judicial  decision,  though  they  are  more 
important  than  many  others  of  which  this  cannot  be  said. 

John  Thurtell  was  tried  on  the  ^  6th  and  7th  Jan.  1824, 
and  executed  on  the  9th,  for  the  murder  of  William  Weare,  on 
the  24th  Oct.  1823.  In  the  Times  newspaper,  Oct.  31, 
1823,  there  is  a  statement  that  the  magistrates'  investigation 
commenced  at  10.30  p.m.  "  The  prisoners  were  not  brought 
"  into  the  room,  it  being  thought  best  to  keep  them  ignorant 
"  of  the  entire  evidence  against  them,  at  least  for  a  short  time." 
Thurtell  was  then  called  in  and  asked  many  questions  by  Mr. 
Noel,  the  solicitor  for  the  prosecution.  Hunt  (Thurtell' s 
accomplice)  was  afterwards  separately  examined,  which  led 
to  his  making  a  full  confession.  The  examinations  taken 
before  the  magistrates  were  published  in  the  newspapers, 
and  ^  Mr.  Justice  J.  A.  Park  made  the  following  observations 
upon  the  subject  in  his  charge  to  the  grand  jury : — 

"  These  depositions  he  understood  (for  he  repeated  he  knew 

"  nothing  of  the   fact  himself)   had  already  appeared  very 

"  copiously  and  even  with  notes  and  comments  in  the  public 

"  press.     Now  it  appeared  to  him  that  the  first  fault  (and  he 

"  had  no  doubt  it  was  most  unintended,  and  in  noticing  it  he 

"  did  not  mean  to  wound  the  feelings  of  any  individual) — it 

"  appeared  to  him  that  the  first  fault  originated  with  the 

"  magistrates   in  allowing  any  persons  to  enter  into  their 

"  private  apartments  for  the  purpose  of  taking  notes  of  their 

"  proceedings.     He  held  there  was  a  vast  difference  between 

"  the  inquisitorial  and  the  judicial  power  of  the  magistrates ; 

'■'  where  the  magistrate  was  acting  judicially  his  conduct  was  as 

"  open  M  the  inspection  and  judgment  of  the  public  as  that  of 

"  himself  and  chat  of  his  learned  brothers  on  the  bench  ;  to 

'■'  such  publicity  he  had  no  objection,  for  he  could  wish  every- 

"  thing  he  said  as  a  judge  to  be  heard  and  fairly  canvassed 

"  by  jhe  Dublic.     ^  He  knew  he  erred  sometimes,  because  he 

^  Mr.  CMtty  moved  in  arrest  of  judgment  that  the  proceedings  were  void 
because  part  o  J  e  trial  took  place  on  the  Feast  of  the  Epiphany. 

2  The  charge  is  published  in  the  Twies,  Deo.  5,  1823,  also  in  two  printed 
accounts  of  the  trial  which  appeared  at  the  time,  one  of  which  is  in  the  Inner 
Temple  library.  Both  of  them  appear  to  be  in  substance  reprints  from  the  Tiine.i. 

3  This  observation  is  too  characteristic  to  have  been  invented,  and  so 
guarantees  the  authenticity  of  the  report, 

Q   2 


228  THURTELL'S  case — LATER  PRACTICE. 

Ch.  VII.  "  was  human,  and  nothing  that  was  human  could  escape 
"  without  error.  But  when  a  magistrate  was  acting  inqui- 
"  sitorially,  when  he  was  taking  an  inquisition  for  blood,  were 
"  these  proceedings  fit  to  be  known  and  published  to  the 
"  world  ?  He  was  bound  to  investigate  and  inquire — ought 
"  his  inquiries  and  investigations  to  be  conducted  in  a 
"  private  or  public  manner  ?  The  statute  law  of  the  land 
"  prescribed  the  course  to  be  pursued  upon  such  an  occa- 
"  sion  for  more  than  200  years  "  (269  years).  "  There  was 
"  a  statute  of  Philip  and  Mary  which  stated  that  deposi- 
"  tions  before  magistrates  should  be  taken  in  writing  in 
"  order  that  they  might  be  transmitted  to  the  judges 
"  who  were  to  try  the  offence  under  the  commission  of 
"  oyer  and  terminer  for  the  county.  He  appealed  to  the 
"  experience  of  every  gentleman  who  heard  him,  and  he 
"  knew  what  his  own  experience  as  judge  had  taught  him, 
"  whether  the  constant  course  was  not  to  transmit  them 
"  to  the  judge,  taking  care  that  the  accused  should  not 
"  have  an  opportunity  of  seeing  them.  The  prosecutor  or 
"  his  solicitor  might  have  access  to  them,  but  not  the  party 
"  accused.  For  what  would  be  the  consequence  if  the 
"  latter  had  access  to  them  ?  Why,  that  he  would  know 
"  everything  which  was  to  be  produced  in  evidence  against 
"  him — an  advantage  which  it  was  never  intended  should 
"  be  extended  towards  him." 

The  first  alteration  made  in  this  state  of  things  was  effected  in 
1836  by  the  Prisoners'  Counsel  Act  (6  &  7  Will.  4,  c.  114,  s.  4), 
which  provided  that  all  persons  under  trial  should  at  their  trial 
have  a  right  to  inspect  all  depositions  taken  against  them. 
In  1849,  by  11  &  12  Vic.  c.  42,  s.  27,  it  was  provided  that 
the  accused  should  be  entitled  to  a  copy  of  the  depositions. 
This  change  was  probably  due  to  a  growing  sense  of  the 
unfairness  of  the  law.  Probably,  too,  the  establishment  of 
a  regular  police  force  by  the  steps  already  detailed  may 
have  put  the  magistrates  in  a  new  position  in  fact  before 
the  change  was  embodied  in  the  statute  law.  As  a  regular 
force  was  established,  first  in  the  towns  and  then  in  the 
country  by  which  charges  of  crime  were  investigated,  how- 
ever imperfectly,  the  magistrates  would  naturally  assume  a 


HISTORY   OF   STIPENDIARY  MAGISTRATES.  2  2g 

more   and   more  judicial  position.     The  inquiry  before  the    Ch.  VII. 

magistrates  is  now  essentially  judicial.     It  may  indeed  admit 

of  a  doubt  whether  it  is  not  too  judicial,  and  whether  it 

does  not   tend  to  become  a  separate  trial.     This  tendency 

was  certainly  encouraged  by  the  power  given  by  30  &  31 

Vic.   c.    35,  to  the   prisoner  to    call   witnesses   before    the 

magistrates,   and   to  have  them  bound   over  to   appear   at 

the  trial  and  to  have  their  expenses  allowed.     The  power 

was   conceded  because   it    was  thought  hard   that  a  man 

should   be  prevented  by  poverty  from  producing  witnesses. 

This  may  have  been  a  good  reason  for  the  act,  and  it  has 

had  some  collateral  advantages,  but   it  has  made  the  law 

more  elaborate  than  it  was. 

In  the  course  of  the  last  century  a  change  has  taken  place 
in  the  position  of  magistrates  parallel  to  and  closely  con- 
nected with  the  change  in  the  position  of  constables. 

The  management  of  local  public  business  of  all  kinds,  and 
especially  of  that  part  of  it  which  consists  in  the  adminis- 
tration of  justice,  has  happily  been  at  all  times,  as  it  still 
continues  to  be,  a  matter  of  honourable  ambition  and  interest 
to  large  numbers  of  persons  well  qualified  for  the  pur- 
pose by  education  and  social  standing.  No  one,  however, 
can  be  expected  to  devote  the  whole  of  his  time  to  the  duties 
of  a  magistrate  unless  he  is  paid  for  it,  and  in  places  where 
the  population  is  very  dense,  there  is  so  much  business  that 
it  cannot  be  efficiently  done  except  by  persons  who  give 
their  whole  time  to  it.  Moreover,  as  the  law  becomes  more 
and  more  elaborate,  and  the  standard  of  judicial  proof  rises, 
special  knowledge  is  continually  becoming  more  and  more 
necessary    for    the    proper    discharge  of    the   duties  of    a 

magistrate. 

The  force  of  these  considerations  has  been  recognised 
by  slow  degrees,  and  so  strong  are  the  attractions  of  the 
voluntary  system,  that  up  to  this  time  the  magistrates  are 
unpaid  in  nearly  all  the  counties,  and  in  most  of  the  cities 
and  boroughs.  But  a  different  system  has  been  introduced 
in  the  metropolitan  district,  and  in  some  other  parts  of  the 
country,  by  the  following  steps. 

Throughout  a  great  part  of  the  eighteenth  century  the 


230  STIPENDIARY  MAGISTRATES  IN    i8tH  CENTURY. 

Ch.  VII.  business  of  magistrates  in  that  part  of  London  which  was 
not  included  in  the  City  was  carried  on  by  magistrates  who 
were  paid  almost  entirely  by  fees.  What  the  fees  precisely 
were,  and  by  what  law  their  exaction  was  justified,  I  am  not 
able  to  say,  nor  is  it  worth  while  to  inquire.  One  or  two 
curious  memorials  of  the  state  of  things  which  then  existed 
will  be  worth  mentioning  by  way  of  introduction  to  the  later 
legislation  on  the  subject. 

Writing  in  1754, 1  Henry  Fielding  says  of  his  career  as  a 
magistrate :  '  By  composing  instead  of  inflaming  the  quarrels 
"  of  porters  and  beggars  (which  I  blush  when  I  say  has  not 
"  been  universally  practised),  and  by  refusing  to  take  a 
"  shilling  from  a  man  who  most  undoubtedly  would  not  have 
"  had  another  left,  I  reduced  an  income  of  about  £500  a 
"  year  of  the  dirtiest  money  upon  earth  to  little  more  than 
"  £300,  a  considerable  proportion  of  which  remained  with 
"  my  clerk ;  and  indeed,  if  the  whole  had  done  so,  as  it 
"  ought,  he  would  be  but  ill  paid  for  sitting  almost  sixteen 
"  hours  in  the  twenty-four  in  the  most  unwholesome  as  well 
"  as  nauseous  air  in  the  universe,  and  which  hath  in  his  case 
"  corrupted  a  good  constitution  without  contaminating  his 
"  morals." 

He  observes  in  a  footnote  :  "  A  predecessor  of  mine  used 
"  to  boast  that  he  made  £1,000  a  year  in  his  office,  ^but  how 
"  he  did  this  (if  indeed  he  did  it)  is  to  me  a  secret.  His 
"  clerk,  now  mine,  told  me  I  had  more  business  than  he  had 
"  ever  known  there ;  I  am  sure  I  had  as  much  as  any  man 
"  could  do.  The  truth  is,  the  fees  are  so  very  low  when  any 
"  are  due,  and  so  much  is  done  for  nothing,  that,  if  a  single 
"justice  of  peace  had  business  enough  to  employ  twenty 
"  clerks,  neither  he  nor  they  would  get  much  by  their  labour. 
"  The  public  will  not  therefore  think  I  betray  a  secret  when 
"  I  inform  them  that  I  received  from  the  government  a 
"  yearly  pension  out  of  the  public  service  money." 

He   afterwards  says  that  he   resigned  the  office   to  ^  his 

'  Introduction  to  Journal  of  a  Voyage  to  Lislon,  Works,  xii.  p.  230,  edition 
of  1775. 

^  This  reads  like  an  insinuation  that  he  took  bribes. 

5  This  brother  was  John  Fieldinj^,  well  known  for  many  years  as  the  blind 
justice.     Henry  Fielding's  son,  William  Fielding,  was  also  a  London  magis- 


TRADING  JUSTICES— I'IRST  POLICE  ACT.  23  I 

brother,  who  had  always  been  his  assistant.    It  was  by  a  rare   Ch.  Vli. 

accident  indeed  that  such  a  man  as  Fielding  found  himself      ' 

m  such  a  position.  Men  of  genius  are  exceptions  every- 
where, but  a  magistrate  ought  at  least  to  be,  as  in  these  days 
he  is,  a  gentleman  and  a  man  of  honour.  It  was  not  so  in 
the  last  century  in  London.  ^A  characteristic  account  of  the 
"trading  justices"  was  given  to  the  Committee  of  1816,  by 
Townsend,  a  well-known  Bow  Street  rminer,  who  at  that 
time  had  been  in  the  police  thirty-four  years  or  more,  i.e. 
since  1782 :  « At  that  time  before  the"  Police  Bill  took 
"place  at  all,  it  was  a  trading  business;  and  there  was 
"  Justice  This  and  Justice  That.  Justice  Welch  in  Litch- 
"  field  Street  was  a  great  man  in  those  days,  and  old  Justice 
"  Hyde,  and  Justice  Girdler,  and  Justice  Blackborough,  a 
"  trading  justice  at  Clerkenwell  Green,  and  an  old  iron- 
"  monger.  The  plan  used  to  be  to  issue  out  warrants  and 
"  take  up  all  the  poor  devils  in  the  street,  and  then  there 
"  was  the  bailing  of  them,  2s.  M.,  which  the  magistrates 
"had;  and  taking  up  100  girls,  that  would  make,  at 
"  2s.  id.,  £11  13s.  4d  They  sent  none  to  gaol,  the  bailing 
"  them  was  so  much  better." 

These  scandals  led  to  the  statute,  32  Geo.  3,  c.  53, 
which  authorised  the  establishment  of  seven  public  offices 
in  Middlesex  and  one  in  Surrey,  to  each  of  which  three 
justices  were  attached.  The  fees  were  to  be  paid  to  a 
receiver.  No  other  Middlesex  or  Surrey  justices  were  to 
be  allowed,  under  heavy  penalties,  to  take  fees  within  the 
jurisdiction  of  the  new  magistrates.  The  justices  were  to  be 
paid  by  a  salary  of  £400  apiece. 

This  experiment  proved  highly  successful.  The  numbers, 
the  salaries,  and  the  jurisdiction,  both  in  point  of  locality 
and  in  point  of  authority,  of  the  metropolitan  stipendiary 
magistrates  have  been  repeatedly  raised.  They  are  now 
regulated  by  the  ^acts  referred  to  in  the  note;  the  effect  of 
which  is   that  the  Queen  has    power  to   establish  in  the 

trate.  He  gave  evidence  before  a  Commitee  of  the  House  of  Commons  in 
1816,  when  he  said  he  had  been  fifty  years  in  the  oommission  for  Westminster. 

1  Report  of  1816,  pp.  139,  140. 

=  2  &  3  Vie.  c.  71,  ss.  1  &  3  ;  11  &  12  Vic.  c.  42,  s.  31  ;  38  &  39  Vic.  c.  3 
(as  to  salary). 


232  PRESENT   STATE   OF   LAW. 

Ch.  yil.  Metropolitan  District  Hhirteen  police  courts,  with  any 
number  of  magistrates  up  to  twenty-seven,  the  chief  magis- 
trate with  a  salary  of  £1,800  a  year,  and  the  others  with 
salaries  of  £1,500.  They  must  be  barristers  of  seven  years' 
standing.  Each  is  a  magistrate  for  Middlesex,  Surrey,  Kent, 
Essex,  and  Hertfordshire,  and  the  chief  magistrate  is  also 
a  magistrate  for  Berkshire.  The  success  of  the  experiment 
in  London  led  to  the  introduction  of  a  similar  state  of  things 
in  other  large  towns. 

Stipendiary  magistrates  may  be  appointed  ( ^  under  5  &  6 
Will.  4,  c.  76,  s.  99)  in  any  borough  on  a  bye-law,  to  be 
made  by  the  Council  and  approved  by  the  Secretary  of  State, 
fixing  the  amount  of  salary  which  the  magistrate  is  to 
receive.  Similar  powers  are  given,  by  26  &  27  Vic.  c.  97, 
to  local  boards  having  authority  over  a  district  containing 
more  than  25,000  inhabitants. 

Even  in  towns,  however,  the  majority  of  the  magistrates 
are  unpaid.  In  the  City  of  London  the  Mayor  and  Alder- 
men are  magistrates  by  charter,  and  there  are  also  magis- 
trates by  charter  in  the  88  small  corporations  not  brought 
under  the  Municipal  Corporations  Act.  In  boroughs  under 
the  Municipal  Corporations  Act  *(5  &  6  Will.  4,  c.  76)'  the 
mayor  for  the  time  being  is  a  justice  of  the  peace  ex  officio, 
as  also  is  the  recorder  (s.  104),  if  there  is  one ;  (s.  57)  and 
the  Queen  has  power  (s.  98)  to  nominate  as  many  other 
justices  as  she  thinks  fit  from  persons  resident  within  seven 
miles  of  the  borough. 

The  genera]  result  is  that  the  business  of  holding  the  pre- 
liminary inquiry  and  committing  or  bailing  the  prisoner  is,  in 
the  metropolitan  district  and  in  many  large  towns  and 
populous  districts,  in  the  hands  of  trained  lawyers,  who  act  as 
preliminary  judges ;  that  in  municipal  boroughs  it  is  in  the 
hands  of  the  mayor,  an  elected  officer,  and  a  number  of 
other  justices  nominated  by  the  Crown,  but  unpaid ;  that  in 

^  There  are  at  present  eleven,  viz.  :  1,  Bow  Street.  2,  Clerkenwell.  3, 
Lambetli.  4,  Marlborough  Street.  6,  Marylebone.  6,  Southwark.  7, 
Thames.  8,  Westminster.  9,  "Worship  Street.  10,  Hammersmith  and 
Wandsworth.     11,  Greenwich  and  Woolwich. 

2  After  January  1,  1883,  under  45  &  46  Vie.  i;.  50,  s.  161. 

3  After  January  1,  1883,  45  &  46  Vic.  ^.  50,  s.  155. 


BAIL.  233 

the  City  of  London  it  is  vested  by  charter  in  the  Mayor  and  Ch.  VII. 
Aldermen ;  in  boroughs  not  under  the  Municipal  Act  in  a 
variety  of  officers  appointed  under  the  provisions  of  charters 
and  private  acts;  and  that  in  the  rest  of  the  country  it 
is  in  the  hands  of  the  local  gentry,  appointed  by  the 
CrQwn  and  exercising  their  office  gratuitously. 

DISCHARGE,    1  BAIL,    OE  COMMITTAL. 

The  next  step  to  the  preliminary  inquiry  held  by  the 
magistrates  is  the  discharge,  bail,  or  committal  of  the  sus- 
pected person.  Little  need  be  said  of  the  law  as  to  the 
discharge  or  committal  of  the  suspected  person.  It  is 
obvious  that,  as  soon  as  justices  of  the  peace  were  erected 
into  intermediate  judges,  charged  to  decide  the  question 
whether  there  was  or  was  not  ground  for  the  detention  of 
a  suspected  person,  they  must  have  acquired,  on  the  one 
hand,  the  power  of  discharge,  and,  on  the  other,  the  power 
of  committal.  The  whole  object  of  the  preliminary  inquiry 
was  to  lead  to  the  one  or  the  other  result,  and  the  history 
of  the  preliminary  inquiry  is  in  fact  the  history  of  the  steps 
which  led  to  the  determination  of  this  question  in  a  judicial 
manner.    The  law  of  bail  has  a  separate  independent  history. 

The  right  to  be  bailed  in  certain  cases  is  as  old  as  the  law 
of  England  itself,  and  is  explicitly  recognised  by  our  earliest 
writers.  When  the  administration  of  justice  was  in  its 
infancy,  arrest  meant  imprisonment  without  preliminary  in- 
quiry till  the  sheriff  held  his  tourn  at  least,  and,  in  more 
serious  cases,  till  the  arrival  of  the  justices,  which  might  be 
delayed  for  years,  and  it  was  therefore  a  matter  of  the  utmost 
importance  to  be  able  to  obtain  a  provisional  release  from 
custody.  The  right  is  recognised  in  curt  and  general  terms 
by  Glanville.  ^  He  says  :  "  Cum  quis  itaque  de  morte  regis 
"  vel  de  seditione  exercitus  infamatur  aut  certus  apparet 
"  accusator  aut  non.  Si  nullus  appareat  certus  accusator 
"  sed  fama  solummodo  publica  accusat ;  tunc  ab  initio  salvo 
"  accusatus  attachiabitur  vel  per  plegios  idoneos,  vel  per 
"  carceris  inclusionem."     If  there  is  a  determinate  accuser — 

'  Dig.  Crim.  Froc.  arts.  136-140.  ^  Lib.  xiv.  c.  1. 


234  STATUTE  OF  BAIL,    3   EDW.  I,  C.  12. 

Ch.  VII.  "  is  qui  accusatur  ut  praediximus  per  plegios  salvos  et  secu- 
"  ros  solet  attachiari  aut  si  plegios  non  habuerit  in  carcerem 
"  detrudi.  In  omnibus  autem  placitis  de  feloniS,  solet  accu- 
"  satus  per  plegios  dimitti  prseterquam  in  placito  de  homi- 
"  cidio  ubi  ad  terrorem  aliter  statutum  est."  ^Bracton  refers 
to  bail  in  many  places,  but  the  most  general  passage  in 
his  treatise  De  Gorona  which  I  have  noticed  ^  is  to  the  effect 
that  the  sheriff  ought  to  exercise  a  discretion  in  regard  to 
bailing  accused  persons,  having  regard  to  the  importance  of 
the  charge,  the  character  of  the  person,  and  the  gravity  of 
the  evidence  against  him. 

These  very  ancient  authorities  are  somewhat  general  in 
their  language,  but  it  is  still  possible  to  trace  the  history  of 
the  law  relating  to  bail  from  the  beginning  of  the  reign  of 
Edward  I.  to  our  own  days. 

The  sheriff  was  the  local  representative  of  the  Crown,  and 
in  -particular  he  was  at  the  head  of  all  the  executive  part  of 
the  administration  of  criminal  justice.  In  that  capacity  he, 
as  I  have  already  shown,  arrested  and  imprisoned  suspected 
persons,  and,  if  he  thought  proper,  admitted  them  to  bail. 
The  discretionary  power  of  the  sheriff  was  ill  defined,  and 
led  to  great  abuses,  which  were  dealt  with  by  the  Statute 
of  Westminster  the  First  (3  Edw.  1,  c.  12,  A.D.  1275).  This 
statute  was  for  550  years  the  main  foundation  of  the  law  of 
bail.  It  recites  that  sheriffs  and  others  "  have  taken  and  kept 
"  in  prison  persons  detected  of  felony,  and  incontinent  have  let 
"  out  by  replevin  such  as  were  not  replevisable,  and  have  kept 
"  in  prison  such  as  were  replevisable  because  they  would  gain 
"  of  the  one  party  and  grieve  the  other."  It  also  recites, 
that  before  this  time  it  was  not  determined  which  persons 
'  were  replevisable  and  which  not,  but  only  those  that  were 
'  taken  for  the  death  of  man  ^or  by  commandment  of  the 
"  king,  or  of  his  justices,  or  for  the  forest."  It  then  proceeds 
to  enact  that  certain  prisoners  shall  not  be  replevisable  either 
"  by  the  common  writ  or  without  writ ;"  that  others  shall 

^  In  cages  of  treason,  ii.  261  ;  homicide,  ii.  283 ;  treasure  trove,  ii.  287 ; 
rape,  ii.  289  ;  wounding,  ii.  288 ;  and  see  293.  2  P.  302. 

'  Coke  labours  to  show  that  this  means  "  by  a  court  of  justice,"  through 
which  alone  the  king  can  act  (Ind  Inst.  p.  186),  and  see  2  Hale,  P.  C.  131. 
This  may  be  very  sound  constitutional  doctrine,  but  it  seems  to  make  non- 
sense of  the  alternative  "or  of  his  justices." 


WHAT  OFFEXCES  BAILABLE  UNDEE  STATUTE  OF  BAIL.  235 

"  be  let  out  by  sufficient  surety,  whereof  the  sheriff  will  be    Ch.  VII. 

"  answerable,  and  that  without  giving  ought  of  their  goods."         

The  persons  not  to  be  bailed  (apparently  in  addition  to  the 
four  classes  referred  to  in  the  recital)  are  (1)  prisoners  out- 
lawed ;  (2)  men  who  had  abjured  the  realm  (and  so  admitted 
their  guilt) ;  (3)  approvers  (who  had  confessed) ;  (4)  such 
as  be  taken  with  the  manour ;  (5)  those  which  have  broken 
the  king's  prison;  (6)  thieves  openly  defamed  and  known, 
and  such  as  are  appealed  (accused)  by  approvers ;  (7)  such 
as  are  taken  for  felonious  arson  ;  (8)  or  for  false  money ;  (9) 
or  for  counterfeiting  the  king's  seal ;  (10)  or  persons  excom- 
municate taken  at  the  request  of  the  bishop;  (11)  or  for 
manifest  offences ;  (12)  or  for  treason  touching  the  king  him- 
self On  the  other  hand,  the  persons  to  be  bailed  are  (1) 
persons  indicted  of  larceny  by  inquests  taken  before  sheriffs 
or  bailiffs  by  their  office,  i.e.  at  sheriffs'  toums  or  courts  leet ; 
(2)  or  of  light  suspicion  (I  suppose  wherever  indicted) ;  (3) 
or  for  petty  larceny  that  amounteth  not  above  the  value  of 
12d.  if  they  were  not  guilty  of  some  other  larceny  aforetime  ; 
,(4)  guilty  of  receipt  of  felons,  or  of  commandment,  or  of 
force,  or  of  aid  in  felony  done  (i.e.  accessories  before  or 
after  a  felony ) ;  (5)  guilty  of  some  other  trespass  for  which 
one  ought  not  to  lose  life  nor  member,  i.e.  misdemeanours  in 
general ;  (6)  a  man  appealed  by  a  prover  after  the  death  of 
the  prover  (if  he  be  no  common  thief  nor  defamed).  The 
statute  does  not  say  distinctly  whether  persons  arrested  on 
suspicion  (for  instance  by  hue  and  cry)  were  to  be  bailed  or 
not.  It  applies  to  persons  ^ "  rettes  "  (which  is  translated 
"  detected  ")  of  felony,  as  having  been  wrongfully  let  out  by 
the  sheriffs.  Whether  the  word  implied  that  the  prisoner 
had  been  indicted,  or  whether  it  meant  only  in  a  general 
sense  charged,  or  whether  its  use  invested  the  sheriffs  with  a 
discretion,  I  cannot  say. 

The  way  in  which  the  later  statutes  are  framed  seems  to 
favour  the  supposition  that  the  justices  at  all  events  could  in 
the  first  instance  admit  to  bail  only  persons  indicted  before 

^  Mr.  Stubbs,  in  his  glossary,  says,  "  Retare,  Bettare,  to  accuse,  from  the 
"  Norse  rett,  an  imputation  or  accusation."  It  soon  ran  into  rectatus  from  a 
reminiscence  of  rectum. 


236  justices'  power  to  bail. 

Ch.  VII.  them  in  their  sessions.  However  this  may  have  been,  the 
"  ■  Statute  of  Westminster  determined  what  offences  were  bailable 
or  not  for  five  centuries  and  a-hal£  The  last  statute  which 
regulates  the  sheriffs'  power  of  bailing  is  23  Hen.  6,  c.  9 
(a.d.  1444).  This  statute  requires  the  sheriffs  in  certain 
cases  to  bail,  in  terms  which  seem  to  imply  that  their  refusal 
to  do  so  had  become  a  well-known  abuse.  It  should  be  read 
in  connection  with  c.  7  of  the  same  statute,  which  recites 
many  statutes  forbidding  persons  to  hold  the  office  of  sheriff 
for  more  than  a  year,  states  that  they  have  been  frequently 
disregarded,  confirms  them,  and  renders  a  sheriff  liable  to  a 
penalty  of  £200  to  be  sued  for  by  a  common  informer  if  he 
disobeys  its  provisions. 

Between  1275  and  1444,  however,  the  sheriffs'  powers  had 
been  to  a  great  extent  transferred  to  the  justices  of  the  peace  in 
whom  the  power  of  admitting  prisoners  to  bail  was  vested  by 
a  series  of  statutes.  The  4Edw.  3,  c.  1  (1330),  provided  that 
persons  indicted  or  taken  by  the  keepers  of  the  peace  should 
not  be  let  to  mainprise  by  the  sheriffs.  The  statute  of  34 
Edw.  3,  c.  1  (1360),  gave  the  justices  power  to  bail  in  very 
general  terms.  The  statute  1  Rich.  3,  c.  3  (1485)  recites  that 
many  persons  have  been  daily  arrested  and  imprisoned,  some 
for  malice  and  "  sometimes  of  a  Kght  suspection,"  and  accord- 
ingly empowers  "every  justice  of  the  peace  to  let  such 
"  persons  to  bail  and  mainprise  in  like  form  as  though  the 
"  said  person  were  indicted  thereof  of  record  before  the  same 
"  justices  in  their  sessions."  This  looks  as  if  the  statute  of 
Edward  III.  applied  only  to  persons  indicted  at  the  sessions. 
The  statute  of  Richard  III.  remained  in  force  for  three  years 
only.  By  3  Hen.  7,  c.  3  (1486),  it  was  recited  that  persons  not 
mainprisable  were  "  oftentimes  let  to  bail  and  mainprise  by 
"  justices  of  the  peace  against  due  form  of  law,  whereby  many 
"  murderers  and  felons  escaped."  It  was  enacted  therefore  that 
the  power  of  bailing  should  be  exercised  only  by  two  justices, 
who  should  let  prisoners  to  bail  till  the  next  sessions  or  gaol 
delivery,  and  "  certify  the  same  at  the  next  general  sessions 
"  of  the  peace,  or  next  general  gaol  delivery."  By  the  same 
statute  it  was  provided  that  "  every  sheriff,  bailiff  of  franchise, 
"  and  every  other  person  having  authority  or  power  of  keeping 


ORIGIN   OF   DEPOSITIONS.  237 

"  of  gaol  or  prisoners  for  felouy,"  should  certify  the  names  Ch.  VI  i. 
of  all  prisoners  in  their  custody  to  the  next  court  of  gaol 
delivery,  "  there  to  be  calendered  before  the  justices."  These 
measures  formed  a  part  of  the  rigorous  administration  of 
justice  by  which  Henry  VII.  restrained  the  disorders  arising 
from  the  Wars  of  the  Roses.  They  are  contained  in  the 
statute  of  which  the  act  relating  to  the  Star  Chamber  (3  Hen- 
7,  c.  1),  already  noticed,  formed  a  part.  They  show  how 
great  was  the  power  committed  to  the  justices,  and  what 
grievous  consequences  might  follow  from  its  abuse.  Under 
the  earlier  law,  any  one  justice  of  the  peace  might  let  any 
offender  to  bail  on  any  security,  and  as  there  was  nothing  to 
warn  the  courts  of  oyer  and  terminer  that  this  had  been  done, 
the  result  might  be,  and  often  was,  the  complete  impunity  of 
the  offender.  To  require  the  presence  of  two  justices  on  the 
occasion  was  probably  some,  though  no  very  great,  security. 

The  system  established  by  the  statute  of  Philip  and  Mary 
already  referred  to  (Phil.  &  Mary,  c.  13),  was  much  more  strin- 
gent. It  was,  in  fact,  the  origin  of  the  preliminary  inquiry 
which  has  come  to  be  in  practice  one  of  the  most  important 
and  characteristic  parts  of  our  whole  system  of  procedure, 
but  it  was  originally  intended  to  guard  against  collusion  be- 
tween the  justices  and  the  prisoners  brought  before  them.  It 
recites  that  until  the  making  of  the  statute  of  Henry  VII.  "  one 
"justice  of  the  peace  in  the  name  of  himself  and  one  other  of 
"  the  justices  his  companion  not  making  the  said  justice  party 
"  nor  privy  unto  the  case  wherefore  the  prisoner  should  be 
"  bailed  hath  oftentimes  by  sinister  labour  and  means  set  at 
"  large  the  greatest  and  most  notable  offenders  such  as  be  not 
"  replevisable  by  the  laws  of  this  realm ;  and  yet  the  rather 
"  to  hide  their  affections  in  that  behalf  have  signed  the  cause 
"  of  their  apprehension  to  be  but  only  for  suspicion  of  felony 
"  whereby  the  said  offenders  have  escaped  unpunished."  It 
then  provides  that,  whenever  a  prisoner  is  bailed,  the  deposi- 
tions of  the  witnesses  are  to  be  taken  and  returned  to  the 
court.     Justices  omitting  this  duty  are  to  be  fined. 

The  fact  that  this  act  was  intended  primarily  as  a  security 
against  malpraictices  of  the  justices,  and  that  the  improvement 
which  it  introduced  into  the  administration  of  justice  was 


238  BAIL   UNDER  JERVIS'S  ACT. 

Ch.  VII.  not  its  principal  object,  even  if  it  was  distinctly  intended, 
explains  some  singularities  in  the  act.  It  explains  the 
circumstance  that  the  first  statute  was  confined  to  cases  in 
which  prisoners  were  bailed.  If  a  man  was  committed  to 
prison,  there  was  no  fear  of  the  justices  unduly  favouring  him ; 
and  therefore  no  need  for  special  precautions  against  such 
favour.  It  also  explains' the  circumstance  that  London  and 
other  corporate  towns  and  the  county  of  Middlesex  were 
excepted  from  the  act.  In  a  great  town  where  there  were 
aldermen  or  other  magistrates  by  charter,  and  a  considerable 
population,  the  danger  of  collusion  would  be  less  than  in  the 
country. 

■^  These  statutes  assume  that  the  question  who  is  bailable  and 
who  not  is  settled  by  the  statute  of  Edward  I.  though  there 
are  some  inconsistencies  between  them,  especially  as  to  bail  in 
cases  of  homicide,  to  which  I  need  not  refer,  ^j^ynjerous 
statutes,  relating  to  particular  offences,  were  passed  in  the 
seventeenth  and  eighteenth  centuries,  but  no  general  provision 
on  the  subject  was  made  till  1826,  when  the  statute  of  7  Geo. 
4,  c.  64,  was  passed,  being  one  of  the  first  attempts  to  con- 
solidate the  criminal  law.  It  repealed  all  the  statutes  above 
referred  to,  so  far  as  they  relate  to  bail,  and  made  other  pro- 
visions on  the  subject  which  were  in  their  turn  superseded 
by  those  of  11  &  12  Vic.  c.  42,  s.  23,  which  are  now  in  force. 
^This  enactment  provides  that  the  committing  justice  may 
in  his  discretion,  admit  to  bail  (or  commit  to  prison  without 
bail,  though  the  alternative  is  not  expressly  mentioned) 
any  person  charged  with  felony,  or  with  *any  one  of  the 

1  2  Hale,  p.  C.  138-140. 

^  For  them  see  7  Geo.  4,  c.  64,  s.  32,  the  repealing  clause. 
^  Under  this  act  a  single  justice  may  act.     Under  the  Act  of  7  Geo.  4, 
c.  64.      complicated  arrangement  was  made,  not  necessary  to  be  noticed. 
^  i.  Assault  with  intent  to  commit  felony. 

2.  Attempt  to  commit  felony. 

3.  Obtaining  or  attempting  to  o'litain  property  by  false  pretences. 

4.  Misdemeanour  in  receiving  property  stolen  or  obtained  by  false  pre- 
tences. 

5.  Perjury  or  subornation  of  perjury. 

6.  Concealment  of  birth  of  a  child. 

7.  Wilful  or  indecent  exposure  of  the  person. 

8.  Riot. 

9.  Assault  in  pursuance  of  a  conspiracy  to  raise  wages. 

10.  Assault  upon  a  police  officer  in  the  execution  of  his  duty. 

11.  Neglect  or  breach  of  duty  as  a  peace  officer. 

12.  Any  misdemeanour  for  the  prosecution  of  which  costs  may  be  allowed 


OTHER  STATUTES  AS  TO  BAIL.  239 

misdemeanours  mentioned  in  the  note.  The  short  result  is  Ch.  VII. 
that  the  justice  may  in  his  discretion  either  bail  or  refuse  to 
bail  any  person  accused  either  of  felony  or  of  any  common 
misdemeanour  except  libel,  conspiracies  other  than  those 
named,  unlawful  assembly,  night  poaching,  and  seditious 
offences.  In  these  cases,  and  in  misdemeanours  ^created  by 
special  acts,  bail  cannot  be  refused,  ^i^  cases  of  treason 
no  bail  may  be  taken  except  by  order  of  a  Secretary  of  State 
or  by  the  High  Court.  The  statute  contains  a  series  of  pro- 
visions,^ to  which  a  general  reference  is  sufficient,  as  to  admit- 
ting to  bail,  after  committal,  persons  who,  in  the  opinion  of  the 
committing  magistrate,  ought  to  be  bailed  if  they  can  find 
sufficient  sureties. 

Such  is  the  history  of  the  existing  state  of  the  law  as  to 
the  bailing  by  justices  of  persons  accused  or  suspected  of 
crimes,  but  in  order  to  make  the  history  complete,  it  is 
necessary   to  mention  shortly   a  branch   of  law  which  has 

out  of  the  county  rate.  The  principal  statute  in  force  on  the  suhjeet  ot 
costs  at  the  time  when  11  &  12  Vic.  c.  42  was  passed  (i.e.  in  1848)  was  7  Geo. 
4,  c.  64,  s.  23,  which  empowered  the  court  to  allow  costs  in  cases  of  prose- 
cution for  ten  specified  misdemeanours,  viz.  all  those  mentioned  in  11  &  12 
Vic.  c.  42,  s.  23,  with  the  exception  of  concealment  of  the  birth  of  a  child. 
Probably,  therefore,  there  were  in  1848  some  provisions  in  force  enabling 
the  court  to  give  costs  in  cases  of  misdemeanour  other  than  those  mentioned 
in  11  &  12  Vic.  c.  42,  s.  23. 

I  have  not,  however,  thought  it  worth  whUe  to  examine  into  this  minutely. 
In  any  event,  I  suppose  the  words  under  consideration  contained  in  7  Geo. 
4,C  64,  are  meant  to  apply  to  all  misdemeanours,  the  costs  of  which  may 
be  allowed  by  the  court  under  the  law  in  force  for  the  time  being,  though 
they  do  not  say  so  distinctly.  Several  statutes  have  been  passed  since  1848 
which  have  tliis  effect.  By  14  &  15  Vic.  c.  55,  s.  2,  the  act  of  George  IV.  is 
extended  to  the  following  misdemeanours  : — 

1.  Unlawfully  and  carnally  knowing  and  atiusing  any  girl  being  above  the 
age  of  ten  (now  twelve)  and  under  the  age  of  twelve  (now  thirteen)  years. 

2.  Abduction  of  girls  under  sixteen. 

3.  Conspiring  to  charge  any  person  with  felony  or  to  indict  any  person 
of  felony. 

4.  Conspiring  to  commit  any  felony. 

By  24  &  25  Vic.  0.  96,  s.  121  (larcency),  c.  97,  s.  77  (malicious  injuries  to 
properties),  c.  98,  s.  54  (forgery),  c.  100,  s.  77  (offences  against  the  person), 
the  court  may  allow  the  expenses  of  prosecutions  for  misdemeanours  punish- 
able under  those  acts.  There  is  a  more  special  provision  of  the  kind  in  the 
Coinage  Act,  24  &  25  Vic.  c.  99,  s.  42. 

1  This  subject  will  be  treated  hereafter.  Great  numbers  of  misdemeanours 
are  created  by  way  of  sanction  to  the  provisions  of  particular  administrative 
measures,  such  as  the  Lunacy  Laws,  the  Merchant  Shipping  Acts,  &c. 

2  11  &  12  Vic.  c.  47,  3.  23  (at  the  end). 

'^  Ss.  23  &  24.  The  act  is  a  most  useful. one,  but  i',  is  drawn  in  a  manner 
calculated  to  drive  the  reader  to  despair.  The  principle  on,  which  its  ar- 
rangement is  based  is  that  of  the  accidental  association  of  ideas,  and  the 
style  is  to  the  last  degree  verbose  and  drawling. 


240  WRIT   DE   HOMINE   EEPLEGIANDO,   ETC. 

Ch.  VII.    become    obsolete.     In  our  own  time  there  is  practically  no 
reason  to  fear  that  justices  under  a  legal  duty  to  admit  a  man 
to  bail  will  refuse  to  do  so.    It  was  otherwise  with  the  sheriffs 
of  earlier  times.      Not  only  did  the  vaguene.ss  of  the  law 
itself  leave  a  wide  and  ill-defined  discretion  in  their  hands, 
but  their    power  was    so  great  that   even   in    plain    cases 
they    were   often  disposed   to   set   it   at  defiance.      Hence 
royal  writs  requiring  them  to  do  their  duty  were  necessary ; 
and   of   these  there  were   several,   the   most  important  of 
which  were   the   writ  de,  homine  replegiando,   the  writ  de 
manucaptione,  and  the    writ   de  odio  et  atid.     These  writs 
issued   out   of  the   chancery  to   the  sheriff  or  coroner.     If 
the  first  writ  was  not  obeyed,  a  second  writ,  which  was  called 
an  "  alias,"  was  issued,  and  if  that  was  not  obeyed,  a  third, 
called  a  "  pluries."      The  final  remedy  was  an  attachment 
under  which  the  sheriff  or  other  officer  w^s  imprisoned  for 
his  disobedience.     He  might  be  fined  for  delaying  till  an 
"alias  "and  "pluries"  issued.     ^  The. writ  de  homine  reple- 
giando was  confined  (at  least  after  3  Edw.  1)  to  cases  in 
which  a  person  was  imprisoned  before  trial  for  an  offence 
bailable  under  the  Statute  of  Bail  (3  Edw.  1),  though  it  also 
applied  to  cases  in  which  a  person  was  unlawfully  detained  by 
any  one  not  having  legal  authority  to  detain  him.     In  such 
cases  the  sheriff  might  return  that  the  person  detained  had 
been  "eloigned"  (elongatios,  carried  to  a  distance  where  he. 
could  not  be  found),  and  upon  such  a  return  a  writ  might 
issue  requiring  the  sheriff  to  take  the  captor  "  in  withernam," 
that  is,  to  imprison  the  captor  till  he  produced  the  person  so 
detained.     The  writ  "  de  manucaptione "  (of  mainprise)  was 
appropriated  to  cases  in  which  a  person  had  been  taken  on  sus- 
picion of  felony  and  had  tendered  "  manucaptors  "  or  "  main- 
pernors "  who  bad  been  refused.     The  difference  between  bail 
and  mainprise  is  long  since  obsolete.     It  is  thus  described  by 
Hale :  ^  "  Bail  and  mainprise  are  used  promiscuously  often- 
"  times  for  the  same  thing,  and  indeed  the  words  import 
"  much  the  same  thing,  for  the  former  is  traditus  J.  8.  and 

^  There  were  various  forms  of  it,  one  for  common  offences,  another  for 
forest  oifenoes.  See  FitzHerbert,  De  Naturd  Brevium,  and  see  also  2  Hale, 
Pleas  of  the  Crovm. 

2  2  Hale,  P.  C.  124. 


WRIT  DE  ODIO   ET  ATI  A.  24! 

"  the  other  is  manucaptus  per  J.  S.     But  yet  in  a  proper  and    Ch.  vii. 

"  legal  sense  they  differ.     1.  Always  mainprise  is  a  recog- 

"  nizance  in  a  sum  certain,  but  bail  is  not  always  so.     2. 

"  He    that  is  delivered    per  manucaptionem   only  is   out 

"  of  custody ;    but  he  that   is   bailed   is  in   supposition  of 

"  law  still  in  custody,  and    the    parties    that  take  him  to 

"  bail   are   in  law  his   keepers,  and   may  reseize    him   to 

"  bring  him  in."      The  difference  between  the  use  of  the 

two  writs  is  described  in  '•Hale,  but  is  to  me  very  obscure. 

The  writ  de  odio  et  ^aiid  was  confined  to  cases  of 
homicide,  and  has  an  odd  history,  as  it  was  in  itself  a 
singularly  clumsy  procedure.  When  a  person  was  im- 
prisoned on  a  charge  of  homicide,  says  ^Bracton,  "Fieri 
"  solet  inquisitio  utrum  hujusmodi  imprisonati  pro  morte 
"  hominis  culpabiles  essent  de  morte  ill4  vel  non,  et 
"  utrum  appellati  essent  odio  vel  atya."  If  the  person 
imprisoned  was  found  guilty,  he  was  not  to  be  admitted  to 
bail.  If,  howevef,  the  inquest  said,  "  quod  per  odium  et 
"  atyam,  et  contineatur  causa  in  inquisitione  quo  odio  vel 
"  qua  atya  diligenter  erit  causa  examinanda,  cum  sint  plures, 
*  "  &c.,  et  ballivi  qui  non  sine  causae  cognitione  in  hujusmodi 
"  inquisitionibus  praetendunt  non  causam  ut  causam,  et  si 
"  sufEciens  fuerit  causa  per  ballium  dimittatur."  This  curious 
passage  seems  to  imply  that  even  in  the  infancy  of  our 
law  questions  arose  as  to  malice  similar  to  those  which 
have  given  so  much  trouble  in  our  own  days.  It  ob- 
viously was  not  every  sort  of  hatred  or  malice  in  the 
prosecutor  which  would  entitle  the  prisoner  to  be  bailed. 
The  cause  of  it  was  to  be  considered.  It  is  probable 
that  the  "  causa "  which  was  to  be  diligently  examined 
was  the  evidence  of  the  guilt  of  the  accused  man,  and  that 
"odium  et  atya"  were  mere  legal  figments  by  which  the 
presence  or  absence  of  reasonable  cause  of  suspicion  was 
obscurely  denoted.  If  a  man  hated  another  because  he 
had  been  seen  committing  a  murder,  his  hatred  would 
be  no   reason  why  he   should  not  prosecute   the  criminal. 

1  2  Hale,  P.  O.  140. 

^  Malice.     "Ex  Anglo-Saxonico  forte   'hatung'  unde  Anglis  'hate'  et 
"  Germanis  '  Haet '  .  .  .  vel  potius  a  Greco  fir?)  "  (Ducange). '    • 
'  Braoton,  ii.  pp.  292-296.  '  I  suppose  sheriffs  and  coroners. -i^-^  f  n^t,-^ 

VOL.   I.  E 


242  .  ■  HABEAS  CORPUS. 

Ch.  VII. ,  If  the  prosecutor  was  unable  to  assign  any  cause  for  the 
prosecution,  it  would  be  not  unnatural  to  say  that  he  must 
hate  the  person  imprisoned.  If  there  was  evidence  malice 
was  immaterial.  If  there  was  no  evidence  malice  was  in- 
ferred. Hence,  the  sufficiency  of  the  evidence,  being  the 
real  point,  was  inquired  into  under  pretence  of  inquiring 
into  the  malice.  But,  however  this  may  have  been,  it  is 
at  all  events  clear  that  the  effect  of  the  writ  was  to  cause  a 
preliminary  trial  to  take  place  in  cases  of  homicide,  the 
result  of  which  determined  whether  the  accused  should  be 
admitted  to  bail  or  imprisoned  till  he  was  finally  tried.  If  he 
was  found  to  have  been  accused  by  malice,  he  was  admitted 
to  bail  on  finding  twelve  sureties,  ^  "  qui  manucapiant  habendi 
"  eum  ad  primam  assisam  et  coram  justitiariis  nostris  ad 
"  respondendum  de  morte  B." 

The  writ  de  odio  et  atid  is  referred  to  in  ^  Magna 
Charta.  Foster  is  of  opinion  (upon  grounds  which  to  me 
seem  just)  that  it  was  abolished  by  6  Edw.  1,  c.  9  (the 
Statute  of  Gloucester),  in  1278.  Coke  says  in  one  place 
that  it  was  abolished  by  the  general  words  of  28  Edw.  3, 
c.  9,  and  revived  by  42  Edw.  3,  c.  1,  in  which  I  think  he 
was  mistaken ;  elsewhere  he  contradicts  this  opinion,  saying 
that  it  was  abolished  by  the  Statute  of  Gloucester.  At  all 
events  it  has  been  obsolete  for  centuries.^ 

These  writs,  which  issued  to  the  sheriff  and  the  coroner, 
can  never  have  been  of  the  first  importance,  and  must 
have  gone  into  disuse  at  an  early  period  (*  though  there  are 
a  few  instances  of  them  in  comparatively  modern  times),  as 
from  the  earliest  times  ^  the    superior  courts  and  the  lord 

1  Bracton,  ii.  295-297, 

-  "  Nihil  detur  vel  oapietur  de  cetero  pro  brevi  inquisitionis  de  vita  vel 
membris,  sed  gratis ,  concedetur  ct  non  negetur." — Stubbs,  Charters,  p.  30]. 
Magna  Charta,  art.  36. 

'  See  on  this  writ,  2  Hale,  P.O.  148  ;  Coke,  2nd  Inst.  421,  ou  Magna  Charta, 
u.  26,  p.  315,  on  the  Statute  of  Gloucester,  c.  9.    See  also  Foster,  284-285. 

*  See  e.g.  the  case  of  Witmore  for  kidnapping  in  1682,  8  State  Trials, 
1347,  and  two  records  of  de  homine  replegiando  printed  at  pp.  1350-1385. 
See  also  some  remarks  in  Selden's  argurn.ent  in  the  case  of  the  writ  of  habeas 
corpus  moved  for  on  behalf  of  Hampden  and  others,  3  St.  Tr.  95.  In  the 
case  of  Lord  Grey  of  Werke,  a  writ  de  homine  replegiando  was  issued  to  force 
him  to  produce  his  sister-in-law,  Lady  Henrietta  Berkeley,  whom  he  had 
seduced.    See  9  St.  Tr.  1 84. 

''  The  Courts  of  Common  Pleas  and  Exchequer  had  originally  to  issue  the 
writ  under  a  fiction  t6  the  ellect  that  the  person  reciuiriug  it  was  privileged 


HABEAS   CORPUS,  243 

chancellor  had   the    right    of  issuing  the    writ  of   habeas    Ch.  vii. 
corpus,  which  answered  in  a  simpler  and  more  direct  way 
all  the  purposes  of  the  other  writs. 

The  history  of  the  writ  of  habeas  corpus,  regarded  as  a 
protection  against  wrongful  imprisonment,  hardly  falls  within 
the  scope  of  a  history  of  the  criminal  law.  It  is  well  known, 
and  is  associated  with  the  most  stirring  period  of  our  history. 
I  need  not  therefore  refer  to  it  on  the  present  occasion.  The 
power  of  the  superior  courts  to  bail  in  all  cases  whatever, 
even  high-treason,  has  no  history.  I  do  not  know,  indeed, 
that  it  has  ever  been  disputed  or  modified.  It  exists  in  the 
present  day  precisely  as  it  has  always  existed  from  the  earliest 
times.  The  only  matters  connected  with  it  which  need  be 
noticed  here  are  some  of  the  provisions  in  the  Habeas  Corpus 
Act  of  1679  (31  Chas.  2,  c.  2).  This  act  provides  that  any 
person  committed  to  prison  "  for  any  crime  unless  for  treason 
"  or  felony  plainly  expressed  in  the  warrant  of  commitment," 
may  obtain  a  writ  of  habeas  corpus  from  the  lord  chan- 
cellor or  any  judge  of  the  common-law  courts.  The  writ 
being  served  on  the  gaoler,  and  certain  conditions  being  com- 
plied with  it  as  to  expenses,  a  return  must  be  made  to  the 
writ  within  three  days.  Upon  the  return,  the  judge  is 
required  to  admit  the  prisoner  to  bail. 

In  the  11  &  12  Vic.  c.  42,  no  notice  is  taken  of  the  Habeas 
Corpus  Act(  so  that  it  seems  that,  although  in  many  cases  of 
misdemeanour  the  committing  magistrate  may  refuse  bail, 
a  judge  who  knows  nothing  of  the  case  is  absolutely  re- 
quired to  bail  any  misdemeanant  who  takes  out  a  writ 
of  habeas  corpus.  There  is  indeed  an  obscure  proviso 
which  perhaps  might  be  held  to  meet  such  a  case  as  the 
end  of  s.  2,  but  the  act  is  as  ill-drawn  as  it  is  celebrated. 

or  was  to  be  sued  in  the  court  from  which  the  writ  issued.  See  2  Hale. 
P.  G.  144  ;  but  by  16  Chas.  1,  0.  10,  s.  6,  the  Common  Pleas  obtained  original 
jurisdiction  in  the  matter  and  by  31  Chas.  2,  c.  2,  all  the  three  courts  are 
empowered  to  grant  the  writ. 


244  CRIMINAL  PBOCEDURE. 


CHAPTEE  VIII. 

HISTORY  OF  THE  LAW  OF  CRIMINAL  PROCEDTJRE  CON- 
TINUED.— FORMS  OF  ACCUSATION  AND  TRIAL — APPEALS — 
ORDEALS — TRIAL   BT   JURY. 

Ch.  VII  r.       The  subject  of  the  present  chapter  is  the  history  of  the 

—       methods  of  accusation   and   trial  which  have    prevailed  in 

England.    These  are  private  and  public  accusations,  and  trial 

by  battle,  by  ordeal,  by  jury,  and  by  the  Star  Chamber  and 

similar  courts  of  which  I  have  ^  already  spoken. 

ACCUSATION  BY  A  PRIVATE  ACCUSER — APPEALS. 

Accusation  and  trial  are  so  closely  connected  that  for 
practical  purposes  they  are  most  conveniently  considered 
together. 

Since  the  Norman  Conquest  there  have  been  ^  three  modes 
of  trial  in  criminal  cases,  namely,  trial  by  ordeal,  trial  by 
battle,  and  trial  by  jury;  and  there  have  been  also  three 
modes  of  accusation,  namely,  appeal  or  accusation  by  a 
private  person,  indictment  or  accusation  by  a  grand  jury, 
and  informations  which  are  accusations  either  by  the 
Attorney-General  or  by  the  Master  of  the  Crown  Office. 

'  Supra,  ch.  vi. 

^  It  compurgation  is  counted  there  have  heen  four,  blit  compurgation  in 
criminal  cases  hardly  survived  the  Norman  Conquest,  though  some  traces  of 
it  remained  in  the  hundred  and  manor  courts.  In  the  ecclesiastical  courts  it 
lasted  till  1640,  as  will  appear  hereafter.  In  the  form  of  "  wager  of  law  "  in 
civil  cases  it  maintained  a  nominal  existence  till  the  year  1834,  when  it  was 
abolished  by  3  &  4  Will.  4,  c.  42,  s.  13.  Probably  the  last  ease  in  which 
it  was  actually  put  in  force  was  King  v.  Williams  (2  B.  and  C.  538,  1824).  In 
this  case  on  an  action  of  simple  contract  the  defendant  prepared  to  bring  eleven 
"  compurgators,  but  the  plaintifi'  abandoned  his  action."  Much  information 
on  this  subject  is  to  be  found  in  Pike's  Eistory  of  Crime.  The  references  are 
collected  in  the  Index. 


APPEALS.  245 

The  history  of  these  modes  of  accusation  and  trial  may  be  Ch.  Vlli. 
conveniently  related  under  one  head. 

The  history  of  appeals  or  accusations  by  a  private  person 
and  trial  by  battle  go  together,  as  trial  by  battle  was  an 
incident  of  appeals. 

The.  fact  that  the  private  vengeance  of  the  person  wronged 
by  a  crime  was  the  principal  source  to  which  men  trusted 
for  the  administration  of  criminal  justice  in  early  times  is 
one  of  the  most  characteristic  circumstances  connected  with 
English  criminal  law,  and  has  had  much  to  do  with  the 
development  of  what  may  perhaps  be  regarded  as  its  prin- 
cipal distinctive  peculiarity,  namely,  the  degree  to  which  a 
criminal  trial  resembles  a  private  litigation.  In  very  early 
times  this  showed  itself  in  the  circumstance  that  the  law  of 
appeals  formed  the  most,  or  nearly  the  most,  important  and 
prominent  part  of  the  criminal  law.  An  elaborate  account 
of  the  procedure  connected  with  them  fills  a  large  part  of  the 
book  of  Bracton,  Be  Corona,  and  also  a  considerable  part  of 
the  first  book  of  Britton,  which  relates  mainly  to  the  same 
subject.  Each  of  these  authors,  but  particularly  Bracton, 
goes  into  the  subject  with  great  minuteness,  Bracton  in  par^ 
ticular  having  a  separate  chapter  upon  each  different  kind 
of  appeal  and  mixing  it  up  with  definitions  of  the  various 
offences  as  to  which  appeals  might  be  brought,  forms  of 
writs  to  sheriffs,  and  much  other  matter  which  has  now 
altogether  lost  its  interest. 

The  following  was  the  substance  of  the  process  according 
to  which  appeals  might  be  made  in  cases  of  treason,  homi- 
cide, breach  of  the  peace  and  wounding  (de  pace  et  plagis), 
mayhem,  breaches  of  the  peace  by  false  imprisonment,  rob- 
bery, arson,  and  rape.  The  appeal  was  made  before  the 
coroner  or  before  more  coroners  than  one.  The  appellor  was 
required  to  make  a  minute  and  strictly  formal  statement 
before  the  coroner  as  to  the  nature  of  the  offence,  ^  setting 
forth  a  great  variety  of  particulars  as  to  the  time,  place,  and 
circumstances  of  the  offence,  in  order  that  the  appellee  might 
be  enabled  to  defend  himself.  This  statement  was  enrolled 
by  the  coroner,  and  the  appellor  appears  to  have  been  held 
1  Brae.  42J:-33. 


246  PROCEEDINGS  IN  AN  APPEAL. 

Ch.  VIII.  to  it  strictly  in  all  subsequent  stages  of  the  proceedings.  The 
next  step  was  to  secure  the  appearance  of  the  appellee,  the 
process  for  which  was  to  publish  the  appeal  at  five  successive 
county  courts.  If  he  did  not  appear  at  the  fifth  the  conse- 
quence was  outlawry.  There  were  elaborate  rules  as  to  this, 
and  as  to  the  counter  process  of  inlawry,  by  which  the  effect 
of  outlawry  was  taken  off,  and  the  appellee  was  permitted  to 
defend  himself 

If  the  appellee  appeared  before  the  justices  he  might  avail 
himself  of  any  one  of  a  great  variety  of  pleas  or  exceptions, 
which  are  detailed  at  great  length  in  Bracton.  ^  He  states 
the  following  as  "ista  generalis  exceptio  et  prima": — "Si 
"  secta  non  fuerit  bene  facta,  quia  qui  appellare  voluerit  et 
"  bene  sequi,  debet  ille,  cui  injuriatum  erit,  statim  quam 
"  cito  poterit  hutesium  levare,  et  cum  hutesio  ire  ad  villas 
"  vicinas  et  propinquiores  et  ibi  manifestare  scelera  et  in- 
"jurias  perpetratas."  There  were,  however,  many  other 
exceptions,  one  of  which  is  introduced  in  the  middle  of  the 
chapter  without  any  special  notice,  but  which  must,  if  it 
really  prevailed,  have  made  appeals  comparatively  unim- 
portant. 2 "  Cadit  appellum  ubi  appellans  non  loquitur  de 
"  visu  et  auditu,"  but  there  is  reagon  to  think  that  if  this  was 
the  law  in  Bracton's  time  it  ceased  to  be  so  afterwards. 

3  If  the  appellee  did  not  plead,  or  not  adequately,  battle  was 
waged  between  the  parties,  but  the  judges  were  bound,  ex 
officio,  to  inquire  (it  is  not  clearly  stated  how)  into  the  cir- 
cumstances of  the  case,  and  not  to  allow  the  battle  if  the 
case  was  such  that  there  were  against  the  appellee  * "  pre- 
"  sumptiones  quse  probationem  non  admittunt  in  contrarium, 
"ut  si  quis  cum  cultello  sanguinolento  captus  fuerit  super 
"  mortuum,  vel  a  mortuo  fugiendo,  vel  mortem  cognoverit 
"  coram  aliquibus  qui  recordum  habeant,  et  hujusmodi  tales." 
If  the  appellee  was  defeated  before  the  stars  appeared  he  was 
hanged.  If  he  was  victorious  or  defended  himself  till  the 
stars  appeared  he  was  acquitted  of  the  appeal,  ^  but  inasmuch 
as  the  appeal  was  considered  to  raise  a  presumption  of  his  guilt 
he  was  to  be  tried  by  the  country  as  if  he  had  been  indicted. 

'  Bracton,  ii.  425.  2  lb.  p.  434.  3  7j_  p  442, 

<"  ih.  p.  452.  =  lb.  p.  448. 


APPEALS  IN  VARIOUS  CASES.  247 

There  are  some  variations  from  this  in  ^  Britten's  Account  Ch.  viil, 
of  Appeals,  which  was  written  about  1291,  in  the  time  of  ~~ 
Edward  I.,  and  no  doubt  the  practice  must  have  varied,  but 
it  would  not  be  worth  wbile  to  go  minutely  into  the  subject. 
2  In  Hawkins's  Pleas  of  the  Crown  is  to  be  found  an  elaborate 
account  of  the  law  as  it  stood  when  all  but  practically  ob-, 
solete.  I  may  however  observe  that  the  plea  of  want  of  fresh 
suit  was  taken  away  by  the  Statute  of  Gloucester  (6  Edw.  1, 
c.  9)  in  1278,  which  allowed  the  appellor  to  sue  within  a 
year  and  a  day. 

The  principal  points  in  the  history  of  appeals  are  as 
follows :— Appeals  in  cases  of  treason  were  properly  (it  seems) 
brought  in  Parliament.  I  have  already  given  an  account  of 
them  and  of  the  manner  in  which  they  came  to  be  abolished 
by  statute,  1  Hen.  4,  c.  14.  That  statute  applies  only  to 
appeals  of  treason  within  the  realm.  Appeals  for  treasons 
done  out  of  the  realm  were  not  affected  by  it,  but  were  to 
be  brought  before  the  constable  and  marshal.  ^Such  an 
appeal  actually  was  brought  by  Lord  Rea  against  David 
Ramsey  in  the  year  1631,  and  combat  was  ordered  upon  it, 
but  the  king  revoked  his  letters  patent  to  the  constable  and 
marshal,  and  the  matter  came  to  an  end. 

Appeals  in  cases  which  were  not  capital,  and  in  particular 
appeals  for  blows,  for  wounds,  and  false  imprisonment,  merged 
in  actions  of  tort  for  damages  for  those  causes.  Appeals  of 
mayhem  lingered  a  little  longer,  but  became  obsolete. 

Appeals  of  robbery  and  larceny  lasted  longer,  because  at 
Common  Law  the  restitution  of  property  feloniously  taken 
•could  be  awarded  only  when  the  thief  or  robber  was  con- 
victed on  an  appeal,  but  this  was  altered  by  21  Hen.  8, 
c.  11,  which  gave  a  writ  of  restitution  to  the  true  owner  upon 
the  conviction  of  the  felon  on  an  indictment. 

Appeals  of  arson  seem  to  have  been  discontinued  at  a  very 
early  time. 

1  IBiitton  (by  NichoUs),  97-125. 

2  Bk.  ii.  ch.  xxiii.  vol.  ii.  p.  223-281,  ed.  1824.  The  book  was  written 
early  in  the  eighteenth  century. 

'  3  St.  Tr.  483-519.  Some  other  cases  of  trial  by  combat  in  civil  cases  are 
referred  to  in  the  notes  to  this  case.  One  of  the  combatants  in  the  last  case 
of  trial  by  battle  in  a  civil  action  was  Lilbum,  the  father  of  John  Lilburn, 
known  under  Charles  I.  and  Cromwell  as  "  Free-born  John." 


248  APPEALS  OF  DEATH. 

Ch.  VIII.       Of  appeals  of  rape  it  is  only  necessary  to  say  that  they  seem 

to  have  differed  less  than  other  appeals  from  indictments, 

and  that  the  offence  at  which  some  early  statutes  on  the 
subject  were  levelled  seems  to  have  included  what  we 
should  describe  as  abduction  with  intent  to  marry  as  well  as 
what  we  describe  as  rape. 

Hence  the  only  appeals  which  can  be  said  to  have  had 
any  definite  history  and  to  have  formed  a  substantial  part 
of  the  criminal  procedure  of  the  country  were  appeals  of 
murder.  It  seems  that  appeals  continued  to  be  the  common 
and  established  way  of  prosecuting  murder  till  the  end  of 
the  fifteenth  century.  Indeed,  they  were  viewed  with  so 
much  and,  according  to  our  notions,  such  strange  and  un- 
merited favour  that  in  1482  (22  Edw.  4)  they  were  made 
the  subject  of  an  act  of  judicial  legislation  of  an  almost 
unexampled  kind.  ^FitzHerbert  has  this  note  on  the 
subject  :  "  Note  that  all  the  justices  of  each  bench  say  that 
"  it  is  their  common  opinion  that,  if  a  man  is  indicted  of  the 
"  death  of  a  man,  the  person  indicted  shall  not  be  arraigned 
"  within  the  year  for  the  same  felony  at  the  king's  suit,  and 
"  they  advise  all  legal  persons  (touts  hoes  de  ley)  to  execute 
"  this  point  as  a  law  without  variance,  so  that  the  suit  of 
"  the  party  may  be  saved."  This  resolution,  in  which  the 
judges,  openly  and  in  the  plainest  words,  assumed  legislative 
power,  was  apparently  acted  upon  to  the  great  injury  of  the 
public,  and  it  was  found  necessary  six  years  afterwards  to 
repeal  it  by  statute.  This  appears  from  the  recitals  and 
provisions  of  3  Hen.  7,  c.  1,  to  which  I  have  already 
referred  in  connection  with  the  Court  of  Star  Chamber. 
This"  act  recites  that  "  murders  and  slayings  of  the  king's 
"  subjects  do  daily  increase,  that  the  persons  in  towns  where 
"  such  murders  fall  to  be  done  will  not  attach  the  murderer  " 
as  by  law  they  ought,  and  that  "  it  is  used  that  within  the 
"  year  and  a  day  after  any  death  or  murder  had  or  done  the 
"  felony  should  not  be  determined  at  the  king's  suit  for 
"  saving  of  the  party's  suit "  (the  appeal),  "  wherein  the 
"  party  is  oftentimes  slow,  and  also  agreed  with,  and  by  the 
"  end  of  the  year  all  is  forgotten,  which  is  another  occasion  of 
'  Corone,  No.  44,  H.  22  Edw.  4. 


LAST  APPEAL   OF  MURDER — ASHFORD  V.  THORNTON.  249 

"  murder.    And  also  he  that  will  sue  any  appeal  must  sue  in  Ch.  Vlll. 
"  proper  person,  which  suit  is  long  and  costly  that  it  maketh 
"  the  party  appellant  weary  to  sue."  As  a  remedy  it  is  provided 
that  indictments  for  murder  shall  be  tried  at  once,  and   that 
an  acquittal  on  an  indictment  shall  be  no  bar  to  an  appeal. 

The  effect  of  this  provision  seems  to  have  beea  that  the 
indictment,  which  did  not  involve  trial  by  battle,  was 
usua,l]y  tried  first,  and  its  result  was  practically  con- 
clusive, unless  the  prisoner  was  acquitted  under  circum- 
stances which  greatly  dissatisfied  the  parties  concerned. 
This  state  of  things  continued  till  the  year  1819,  though 
the  resort  to  an  appeal  became  less  and  less  common 
as  time  went  on.  ^  There  are,  however,  some  specimens 
of  appeals  of  murder  reported  in  the  State  Trials,  ^and 
an  attempt  to  abolish  them  by  statute  was  successfully 
resisted  in  the  years  1768  and  1774.  The  last  appeal 
of  murder  ever  brought  was  the  case  of  ^Ashford  v. 
Thornton.  Thornton,  being  strongly  suspected  of  having 
murdered  Mary  Ashford,  was  tried  for  that  offence  and 
acquitted  at  Warwick  Assizes,' and  an  appeal  was  brought  by 
her  brother.  On  the  2nd  November,  1818,  the  appellant 
read  his  count  (the  equivalent  of  an  indictment)  in  the 
Court  of  King's  Bench,  charging  Thornton  with  his  sister's 
murder.  Thornton  then  pleaded,  "  Not  guilty,  and  I  am 
"  ready  to  defend  the  same  with  my  body  ; "  "  and  thereupon 
"  taking  his  glove  off  he  threw  it  upon  the  floor  of  the  court." 
The  appellant  then  counter-pleaded  that  Thornton  ought  not 
to  be  permitted  to  wage  battle,  because  the  circumstances 
(which  are  set  out  in  detail  in  the  counter-plea)  were  such  as 
to  show  that  he  was  guilty.  The  appellee  replied,  setting 
out  circumstances  which  he  regarded  as  estabhshing  an  alibi 
in  his  favour.  To  this  there  was  a  demurrer.  Upon  this 
issue  was  joined,  and  an  argument  took  place,  in  which  *  all 

^  In  Spencer  Cowper's  case,  13  St.  Tr.  1190,  as  also  the  cases  of  Bambridge 
and  Corbet,  17  St.  Tr.  395-7.  In  Bigby  v.  Kennedy,  5  Bur.  2643,  a  care- 
ful report  is  given  of  tbe  proceedings  in  an  appeal  on  acconnt  of  their 
rarity. 

2  See  an  account  of  this  in  Home  Tooke  s  defence  on  his  prosecution  for 
libel  in  1777.     20  St.  Tr.  716,  717.  ^  1  Bar.  and  Aid.  405. 

■*  Jlr.  Chitty  and  Sir  N.  Tindal  argued  the  case.  It  will  be  found  that 
practically  Bracton  is  the  great  authoiity. 


250  APPEALS   BY   APPROVER. 

Ch.  viii.  the  authorities  on  the  subject  are  reviewed.  The  Court 
decided  that  the  result  of  the  authorities  was  that  the 
appellee  had  a  right  to  wage  his  body,  unless  circumstances 
practically  inconsistent  with  his  innocence  appeared,  and  that 
such  did  not  appear  from  the  matter  put  upon  the  pleadings 
to  be  the  case.  The  result  was  that  no  further  judgment  was 
given,  the  appellant  not  being  prepared  to  do  battle.  The 
proceedings  ended  by  Thornton's  arraignment  on  the  appeal,, 
to  which  he  pleaded  autrefois  acquit. 

This  proceeding  led  to  the  statute  59  Geo.  3,  c.  46,  by 
which  all  appeals  in  criminal  cases  were  wholly  abolished. 

It  is  probable  that  the  commonest  and  most  important 
form  of  appeal  was  that  of  appeal  by  an  approver.  The 
nature  of  this  proceeding  was  as  follows  : — ^  If  a  person 
accused  of  any  crime,  but  especially  of  robbery,  chose  to 
plead  guilty  and  to  offer  to  give  up  his  accomplices  he  was 
handed  over  to  the  coroner,  before  whom  he  confessed  his 
guilt  and  accused  a  certain  number  of  otlfer  persons,  and  the 
king  might  "  grant  him  life  and  limb  if  he  would  deliver  the 
"  country  from  a  certain  number  of  malefactors  either  by  his 
"  body"  {i.e.  by  killing  them  upon  battle  waged)  "  or  by  the 
"country"  (i.e.  convicting  them  before  a  jury),  "or  by 
"  flight."  If  he  failed  to  fulfil  the  conditions  imposed  on 
him  he  was  hanged  on  his  own  confession.  If  the  person 
accused  was  a  man  of  good  character,  the  conditions  of  the 
proceeding  were  made  less  favourable  to  the  approver  than 
■they  otherwise  would  have  been. 

If  the  approver  fulfilled  the  stipulated  condition  and  dis- 
posed of  the  prescribed  number  of  accomplices  he  had  to 
abjure  the  realm  ^  "  in  regno  remanere  non  poterit  etiam  si 
"  velit  plegios  invenire." 

ACCUSATIONS     BY     PUBLIC     REPORT— OEDEALS — TRIAL 
BY  JURY. 

I  have  already  described  the  manner  in  which  public 
accusations  were  made  before  the  C(mquest.  I  now  come  to 
the  procedure  subsequent  to  the  Conquest. 

^  Bracton,  523,  &o.  '  lb.  532. 


ORDEAL — ASSIZES   OF   CLARENDON   AND  NORTHAMPTON.  ,251 

Glanville  mentions  the  subject  very  slightly.  ^  In  his  short  Ch.  Vlll. 
chapter  on  criminal  proceedings  he  describes  the  procedure 
adopted  in  the  case  of  each  particular  crime  separately,  but 
he  seems  in  all  cases  to  recognize  the  distinction  between  an 
accusation  by  a  definite  accuser  and  an  accusation  by  public 
report  aloue. 

The  silence  of  Glanville  upon  this  subject  is,  however,  of 
the  less  importance,  because  we  have  still  ^  the  text  of  the 
Assize  of  Clarendon  (1164)  and  that  of  the  Assize  of  North- 
ampton (1176),  which  constitute  the   legislation  of  Henry 
II.  upon  this  subject.      The  Assize  of  Northampton  was  a 
republication  of  the  Assize  of  Clarendon,  with  some  altera- 
tions and  additions  intended  to  make  the  system  established 
by  it  more  rigorous.     Its  provisions  are  as  follows  : — "  If  any 
"  one  is  accused  before  the  justices  of  our  Lord  the  King  of 
"  murder  or  theft  or  robbery,  or  of  harbouring  persons  com- 
"  mitting  those  crimes,  or  of  forgery  or  of  arson,  by  the  oath  of 
"  twelve  knights  of  the  hundred,  or,  if  there  are  no  knights, 
"  by  the  oath  of  twelve  free  and  lawful  men,  and  by  the  oath 
"  of  four  men  from  each  township  of  the  hundred,  let  him  go 
"  to  the  ordeal  of  water,  and  if  he  fails  let  him  lose  one  foot. 
"  And  at  Northampton  it  was  added  for  greater  strictness  of 
"  justice "  {"pro  rigore  justitice)  "  that  he  shall  lose  his  right 
"  hand  at  the  same  time  with  his  foot,  and  abjure  the  realm, 
"  and  exile  himself  from  the  realm  within  forty  days.     And 
"  if  he  is  acquitted  by  the  ordeal  let  him  find  pledges  and 
"  remain  in  the  kingdom  unless  he  is  accused  of  murder  or 
"  other  base  felony  by  the  body  of  the  country  and  the  lawful 
"  knights  of  the  country ;  but  if  he  is  so  accused  as  aforesaid, 
"  although  he  is  acquitted  by  the  ordeal  of  water,  neverthe- 
"  less  he  must  leave  the  kingdom  in  forty  days  and  take  his 
"  chattels  with  him,  subject  to  the  rights  of  his  lords,  and  he 
"  must  abjure  the  kingdom  at  the  mercy  of  our  Lord  the 
"  King.     This  assize  is  to  apply  from  the  time  of  the  Assize 
"  of  Clarendon  to  the  present  time,  and  from  the  present 
"  time  as  long  as  our  Lord  the  King  pleases  in  cases  of 
"  murder  and  treason   and  arson,  and  in  all  the  aforesaid 

1  Glanville,  book  xiv. 

=  Stubbs,  ChaHcrs,  HZ,  150. 


252  INSTANCES  OF   OBDEALS. 

Ch.  VIII.  "  matters,  except  small  thefts  and  robberies  done  in  the  time 
"  of  war,  as  of  horses  and  oxen,  and  less  matters." 

The  system  thus  established  is  simple.  The  body  of  the 
country  are  the  accusers.  Their  accusation  is  practically 
equivalent  to  a  conviction  subject  to  the  chance  of  a  favour- 
able termination  of  the  ordeal  by  water.  If  the  ordeal  fails, 
the  accused  person  ^  loses  his  foot  and  his  hand.  If  it 
succeeds,  he  is  nevertheless  to  be  banished.  Accusation 
therefore  was  equivalent  to  banishment  at  least. 

We  have  still  some  evidence  as  to  the  kind  of  cases  in 
which  the  ordeal  was  inflicted.  It  is  to  be  found  in  the 
Rotuli  Curice  Regis  for  the  reigns  of  Eichard  I.  and  John, 
said  by  Sir  F.  Palgrave  to  be  the  oldest  judicial  records  in 
existence.  The  following  illustrations  (amongst  others)  are 
published  by  Sir  F.  Palgrave  in  his  ^  Proofs  and  Illustrations. 

"Roll  of  the  Iter  of  Stafford  in  5  John.~On&  Elena  is 
"  suspected  by  the  jurors  because  she  was  at  the  place  where 
"  Reinalda  de  Henchenhe  was  killed,  and  because  she  was 
"  killed  by  her  help  and  consent.  She  denies  it.  Let  her 
"  purge  herself  by  the  judgment  of  fire  ;  but  as  she  is  Ul,  let 
"  her  be  respited  till  she  gets  well." 

"  Andrew  of  Bureweston  is  suspected  by  the  jurors  of  the 
"  death  of  one  Hervicus  because  he  fled  for  his  death,  there- 
"  fore  let  him  purge  himself  by  the  judgment  of  water." 

"  Roll  of  the  Iter  of  Wiltshire,  10  Rich.  1.- — The  jurors 
"  say  that  Radulphus  Parmentarius  was  found  dead  with  his 
"  neck  broken,  and  they  suspect  one  Cristiana,  who  was 
"  formerly  the  wife  of  Ernaldus  de  Knabbewell,  of  his  death, 
"  because  Radulphus  sued  Cristiana  in  the  ecclesiastical  court 
"  for  breach  of  a  promise  of  marriage  she  had  made  to  him, 
"  and  after  the  death  of  her  husband  Ernaldus,  Reginald,  a 
"  clerk,  frequented  her  and  took  her  away  from  Radulphus, 
"  and  Reginald  and  Cristiana  hated  Radulphus  for  suing  her, 

■^  This  was  the  common  punishment  for  robbery  in  India  under  native  rule. 
I  have  myself  seen  men  in  Lahore  whose  hands  (as  they  said  themselves)  had 
been  out  ofif  by  Runjeet  Singh  for  theft.  In  the  Life  of  Thomas,  a  Baptist 
missionary  at  Calcutta,  there  is  an  account  of  the  punishment  of  fourteeu 
dacoits  in  the  neighbourhood  of  Calcutta,  each  of  whom  had  his  hand  and 
foot  cut  off  on  the  15th  February,  1789,  on  the  western  bank  of  the  Hooghly, 
opposite  Calcutta. — Lewis's  Life  of  Thomas,  p.  18. 

^  Palgrave,  clxxxv. — clxxxviii. 


ORIGIN   OF   GEAND   JURY.  253 

"  and  on  account  of  that  hatred  the  jurors  suspect  her  and  Ch.  VIJI. 
"  the  clerk  of  his  death.     And  the  country  says  it  suspects 
"  her.     Therefore  it  is  considered  that  the  clerk  and  Cristiana 
"  appear  on  Friday,  and  that  Cristiana  purge  herself  by  fire." 

It  is  impossible  to  say  how  long  the  system  of  ordeals 
lasted.  In  the  Mirror  there  is  a  list  of  155  abuses  in  the 
law  of  which  the  author  complains.  The  127th  is — "  It  is 
"  an  abuse  that  proofs  and  purgations  be  not  by  the  miracle 
"  of  God  where  other  proof  faileth."  ^  The  Mirror  was 
written  in  the  reign  of  Edward  I.,  so  that  it  appears  probable 
that  ordeals  fell  into  disuse  in  the  course  of  the  thirteenth 
century,  ^  probably  in  consequence  of  the  decrees  of  the 
Lateran  Council  of  1216. 

The  system  of  accusation  which  led  up  to,  and  to  use  a 
modem  legal  expression  "  sounded,"  in  ordeal,  was  the  origin 
of  the  grand  jury  of  later  times,  and  of  our  own  days.  In 
my  chapter  on  the  History  of  the  Criminal  Courts,  ^  I  have 
given  Bracton's  description  of  the  justices'  eyre,  as  it  existed  in 
the  time  of  Henry  III.,  and  have  shown  that  the  accusation  of 
suspected  persons  was  only  one  of  its  multifarious  duties,  which 
were  of  such  magnitude  and  variety  that  they  may  properly 
be  said  at  that  time  to  have  consisted  of  a  general  superintend- 
ence over  all  the  local  details  of  the  executive  government. 
By  degrees  the  old  system  of  convening  something  like  a 
county  parliament,  in  which  every  township  was  represented 
by  its  reeve  and  four  men,  fell  into  disuse,  and  the  sheriffs 
fell  into  the  habit  of  summoning  only  a  sufficient  number 
of  probi  et  legales  homines  to  form  a  grand  jury  and  as 
many  petty  juries  as  might  be  needed  for  the  trial  of  the 
civil  and  criminal  cases  to  be  disposed  ot  The  law  upon 
the  subject  of  the  number  and  quahfications  of  the  men  to  be 

1  Palgrave,  cxiii.  .  ,  .    . 

^  The  last  reference  to  tlie  system  wHcli  I  have  met  with  is  m  one  of  the 
trials  for  the  Popish  Plot.  Gavan,  one  of  the  five  Jesuits  who  were  tried  and 
executed  upon  the  evidence  of  Gates  in  1679,  begged  to  be  allowed  "to  put 
"  himself  upon  the  trial  of  ordeal "  (7  St.  Tr.  383),  alleging  that  "  m  the  be- 
"  ginning  of  the  Church  it  was  a  custom,  and  grew  to  a  constant  law,"  that 
a  person  accused  of  a  capital  offence  should  be  allowed  to  do  so  when  there  was 
only  the  accuser's  oath  against  his  denial.  It  is  odd  that  Gavan  should  have 
supposed  that  judgment  by  ordeal  was  a  specially  ecclesiastical  mode  of  pro- 
ceeding when,  in  fact,  its  abolition  was  due  to  the  ecclesiastical  legisktion  011 
the  subject.  '  Supra,  p.  102. 


2  54  ORIGIN   OF  PETTY  JURY. 

Ch.  vin.  put  upon  the  pannels  formerly  was,  and  to  some  extent  still  is, 
singularly  vague.  In  practice  at  the  assizes  the  grand  jury 
for  counties  is  always  composed  of  the  county  magistrates, 
whose  names  are  called  over  by  the  officer  of  the  court  until 
twenty-three  at  most  have  appeared.  The  magistrates,  how- 
ever, have  no  special  legal  right  or  duty  in  the  matter.  Any 
''  good  and  lawful  men  "  of  the  county  may  serve,  no  special 
qualification  being  required,  though  there  are  some  disquali- 
fications.^ There  is  no  historical  interest  in  the  enact- 
ments which  have  been  made  upon  this  subject.  The  grand 
jury  to  the  present  day  accuses  every  person  who  is  put  on 
his  trial  before  any  court  of  criminal  jurisdiction  which  tries 
prisoners  by  a  jury.  The  most  interesting  point  connected 
with  their  operations  is  to  trace  out,  if  possible,  the  manner 
in  which  the  powers  of  the  petty  jury  grew  up,  and  the  way 
in  which  they  were  exercised. 

The  origin  of  petty  juries  seems  now  to  be  pretty  clearly 
determined.  Various  institutions  having  more  or  less  resem- 
blance to  petty  juries  are  to  be  found  in  different  ages  and 
countries,  but  the  following  points  connected  with  their  history 
in  England  are  clear  beyond  dispute,  and  are-  those  which  it 
really  concerns  us  to  know. 

When  trial  by  ordeal  was  abolished  and  the  system  of 
accusation  by  grand  juries  -was  established,  absolutely  no 
mode  of  ascertaining  the  truth  of  an  accusation  made  by  a 
grand  jury  remained.  Trial  by  battle  could  apply  only  in 
cases  where  there  was  an  individual  accuser,  in  other  words 
in  cases  of  appeals  ;  and  thus  an  accusation  by  a  grand  jury 
became  practically  equivalent  to  a  conviction.  This  led  to 
the  introduction  of  trial  by  jury  as  we  understand  it,  by  the 
following  steps.  In  the  first  place,  the  usiial  mode  of  determin- 
ing questions  of  fact  known  to  and  practised  by  the  Normans 
was  the  inquest.  An  inquest  was  a  body  of  persons  re- 
presenting a  certain  number  of  townships  or  other  districts. 
The  township  being  represented  by  the  four  men  and  the 
reeve.      They  were  convened  by  the   representative  of  the 

'  The  law  relating  to  petty  juries  is  now  regulated  by  statute  in  most 
though  not  in  all  particulars  (see  6  Geo.  4,  c.  50,  and  some  later  acts,  especially 
33  and  34  Vic.  c.  77).  As  to  grand  juries,  see  Dig.  Crim.  Proe.  ch.  xxii. 
arts.  184-188. 


INQUESTS.  255 

royal  authority,  such  as  a  justice,  a  sheriff,  or  a  coroner,  as  Ch.  viii. 
the  case  might  be,  and  answered  upon  oath  the  particular 
matters  proposed  to  them.  The  most  important  instances 
of  inquests  which  can  be  cited  are  those  by  whose  report 
were  drawn  up  Domesday  Book  and  the  Hundred  EoUs,  to 
which  I  have  already  referred. 

The  manner  in  which  the  inquests  informed  themselves  of 
the  particular  facts  to  which  they  swore  has  not  been  recorded. 
Probably  they  would  be  warned  beforehand  of  the  matters  to 
which  they  were  to  depose,  and  would  make  local  inquiries. 
Possibly  they  took  evidence  on  the  spot.  ^  In  one  of  the 
passages  I  have  quoted  from  the  Hundred  Eolls  for  another 
purpose,  a  complaint  is  made  of  the  misbehaviour  of  a  local 
noble,  who  threatened  a  person  in  order  to  deter  him  from 
giving  evidence  before  the  inquest,  but  upon  these  matters 
we  are  left  to  conjecture,  and  it  is  probable  that  different 
methods  would  be  employed  on  different  occasions  and  for 
different  purposes.  Be  this  however  as  it  may,  one  point  is 
clear.  The  inquest  were  the  witnesses  in  contemplation 
of  law.  It  was  by  their  oath,  and  not  by  the  oath  of  their 
informants,  that  the  fact  to  be  proved  was  considered  to 
be  established,  and  the  only  form  of  perjury  known  to 
the  law  of  England  as  a  crime  till  comparatively  modern 
times  was  that  form  of  perjury  which  was  committed  by 
giving  a  false  verdict,  and  which  was  punished  by  the 
process  known  as  an  attaint. 

The  introduction  of  the  inquest  into  the  administration  of 
justice  took  place  apparently  by  steps.  It  was  first  intro- 
duced in  what  were  in  earlier  days  the  commonest  and  most 
important  of  civil  causes,  namely,  trials  held  in  order  to 
determine  the  right  to  land.  In  these  cases,  as  in  private 
accusations  of  crime,  the  mode  of  trial  after  the  Norman 
Conquest  was  by  battle,  but  in  the  reign  of  Henry  II.  was 
introduced  what  was  called  the  "  Great  Assize."  This  form 
of  trial  is  thus  described  by  ^Glanville:  "Now  the  Great 
"  Assize  is  a  royal  benefit  indulged  to  the  people  by  the 
"  clemency  of  the  prince  on  the  advice  of  the  nobles,  whereby 
'■  life  and  property  are  so  wholesomely  cared  for  that  men 
1  Ante,  p.  130.  ^  Glamdlle,  ii.  7,  p.  35. 


256  GRAND  ASSIZES. 

Ch.  Villi  "  can  avoid  the  chance  of  the  combat  and  yet  keep  what- 
"  ever  right  they  have  in  their  freeholds.  And  thereby  they 
"  can  avoid  the  last  penalty  of  unexpected  and  premature 
"  death,  or  at  least  of  that  perpetual  infamy,  that  horrible 
"  and  shameful  word  (craven)  which  sounds  sadly  in  the 
"  mouth  of  the  conquered.  This  constitution  arises  from 
"  the  highest  equity,  for  the  right  which  can  scarcely  be 
"  proved  by  battle  after  many  and  long  delays  is  more  con- 
"  veniently  and  speedily  acquired  by  the  benefit  of  this 
"  constitution.  The  Assize  does  not  admit  of  as  many 
"  essoigns  as  the  combat,  as  will  immediately  appear,  and  by  , 
"  this  both  the  labour  of  men  and  the  expense  of  the  poor 
"  are  spared.  Besides,  this  institution  has  in  it  more  equity 
"  than  trial  by  combat  in  proportion  as  more  weight  is  to  be 
"  allowed  in  judgment  to  many  fit  witnesses  than  to  one 
"  alone." 

In  the  following  chapters  the  nature  of  the  institution  is 
described  : — ^  The  defendant  "  put  himself  on  the  assize," 
whereupon  trial  by  combat  was  stayed,  2  and  four  knights 
were  summoned  to  return  twelve  knights  of  the  vicinage  to 
say  (ad  recognoscendum)  by  their  oaths  ^  which  of  the  parties 
had  most  right  to  the  land.  These  recognitors  were  obviously 
witnesses,  as  appears  from  the  *  account  given  of  their  pro- 
ceedings when  they  met.  Upon  their  assembly  it  is  said 
either  all  will  know  where  the  right  is,  or  some  will  and 
others  will  not,  or  all  will  not.  If  some  or  all  are  ignorant, 
and  say  so  on  their  oaths,  they  are  to  be  excluded.  If  some 
are  on  one  side  and  some  on  the  other,  "  adjiciendi  sunt  alii 
"donee  duodecim  ad  minus  in  alterutram  partem  acquieverint." 
It  is  also  said  that  they  were  to  swear  to  matters  within  their 
own  knowledge,  or  "  per  verba  patrum  suorum  et  per  talia 
"  quibus  fidem  teneantur  habere  ut  propriis."  ^  Severe 
punishment  was  provided  for  those  who  swore  falsely.  *  If 
the  claitnant  could  not  find  twelve  persons  to  swear  to  his 
right  he  was  thrown  back  on  the  remedy  by  combat. 

Even  before  the  abolition  of  ordeals  it  seems  to  have  been 

1  Glanville,  c.  8.  2  lb.  c.  11. 

?  "  Quia  eorum  scilicet  an  tenens  an  petens  majus  ju4  hateat  in  suS  de- 
"manda"  (Glanville,  0.  14). 
■•  /*.  c.  17.  ^  lb.  0.  19.  «  76.  c.  21. 


BRACTON   ON  JURIES.  257 

not    very  unusual  for  persons  accused  of  crimes   by  what  Ch.  Vlll. 

answeried  to  the  present  grand  jury  to  purchase  from  the       

king  the  privilege  of  going  before  a  petty  jury,  which  was 
to  determine  finally  on  his  guilt  or  innocence.  ^Sir  F. 
Palgrave  gives  several  instances  of  this.  When  ordeals  were 
discontinued  it  is  probable  that  petty  juries  would  come  into 
general  use,  and  such  appears  to  have  been  the  case. 

Bracton's  account  of  the  proceedings  before  justices  is  ex- 
ceedingly full,  but  it  is  so  discursive  that  it  is  by  no  means 
easy  to  be  sure  as  to  its  meaning.  It  appears,  however,  to 
be  as  follows :  ^  First,  the  justices  are  to  give  a  charge  to 
the  persons  appearing  before  them,  and  after  various  con- 
sultations and  explanations  a  kind  of  grand  jury,  consisting 
of  four  knights  from  each  hundred,  is  to  be  sworn  to  answer 
to  what  is  required  of  them.  They  are  to  give  a  schedule 
of  suspected  persons,  whom  the  sheriff  is  forthwith  to  seize 
and  cause  to  appear  before  the  justices  "  ut  justitiarii  de  iis 
"  faciant  justitiam."  After  stating  this  Bracton  goes  to 
other  subjects,  but  returns  at  last  to  the  question  of  public 
accusations.  ^  Jn  g,  passage  too  long  to  extract  at  length  he 
gives  the  following  account  of  the  procedure : — *When  a  man 
is  indicted  the  justice  is  to  examine  the  twelve  who  indict 
him  (this  must .  mean  the  grand  jury)  as  to  their  means  of 
knowledge.  Whereupon  "  Dicet  forte  aliquis  vel  major  pars 
"  juratorum  quod  ea  quae  ipsi  proferunt  in  veredicto  suo 
"  didicerunt  ab  uno  ex  conjuratoribus  suis,''  and  this  being 
followed  up  the  report  may  at  last  be  traced,  "  ad  aliquam 
"  vilem  et  abjectam  personam  et  talem  cui  non  erit  fides 
"  aliquatenus  adhibenda."  What  is  to  happen  in  this  case 
is  not  stated,  but  it  is  observed  that  on  account  of  the 
possibility  of  false  and  malicious  accusations  the  accused 
person  may  object  to  individuals  or  townships.  At  last  twelve 
persons  are  to  be  sworn  and  ^  "  secundum  eorum  veredictum 

1  Proofs  wind  Illustrations,  clxxvi.,  clxxvii.,  and  clxxxvi.,  No.  17.  A  person 
appealed  of  robbery,  "  affeit  domino  regi  unam  marcam  argenti  pro  habenda 
"  inquisitione  per  legales  milites  utrum  culpabilis  sit  inde  necne  .  .  .  oblatio 
' '  recipitur.  Juratores  dicunt  quod  revera  contencio  fuit  inter  gardinarium 
"  prsedicti  Roberti,  Osmund  nomine,  et  quosdam  garciones,  sedEauulfas"  (the 
]irisoner)  "non  fuit  ibi  nee  malecrediuit  eum  de  aliqua  roberia  vel  de  aliquo 
"  male  facto  eidem."  ^  Bracton,  ii.  234-241. 

3  lb,  c.  xzii.  pp.  450-462.  *  lb.  p.  454.  =  lb.  p.  456. 

VOL.   I.  S 


258  BRITTON  ON  JURIES. 

Cjj.  VIII,  "  aut  sequitur  deliberatio  aut  condemnatio."  "  The  justices 
"  are  to  observe  this  form  of  inquisition  by  the  country 
"  generally  in  all  inquests  to  be  made  of  the  death  of  a  man, 
"  -when  any  one  puts  himself  on  the  inquest  either  willingly 
"  or  from  caution,  or  by  necessity,  in  all  crimes  greater  or  less ; 
"  but  the  justices  can,  if  they  think  it  expedient  on  a  neces- 
"  sary  cause,  and  if  a  great  crime  lies  hid,  and  the  jurors  wish 
"  to  conceal  the  truth  from  love,  or  hatred,  or  fear,  separate  the 
"  jurors  from  each  other  and  examine  them  separately  to 
"  disclose  the  truth  sufficiently." 

The  difficulty  is  to  ascertain  from  these  passages  whether 
they  speak  of  two  juries  or  of  only  one.  I  am  disposed  to 
think  that  they  refer  to  two,  as  two  distinct  occasions  are 
mentioned  in  which  the  jurors  swear.  It  must  be  admitted 
that  the  matter  is  left  in  great  doubt,  but  whatever  may 
have  been  the  truth  on  this  subject,  it  is  obvious  that  in 
Bracton's  time  the  jury  were  not  only  witnesses,  but  witnesses 
who  might  be  and  habitually  were  examined  and  cross- 
examined  by  the  justices. 

Bracton's  work  is  supposed  by  Sir  H.  Twiss  to  have 
been  written  before  1258.  Britton,  who  took  Bracton's 
work  to  a  great  extent  as  a  foundation  for  his  own,  ^wrote, 
it  is  supposed,  about  1291-2.  In  his  time  there  certainly 
were  two  juries,  and  each  was  composed  of  witnesses.  ^  The 
proceedings  of  the  grand  jury  are  first  described  much  as 
Bracton  describes  them,  though  more  succinctly.  ^  The 
persons  indicted  are  then  to  be  called  upon,  and  if  necessary 
compelled,  to  put  themselves  on  their  country  or  to  plead 
guilty.  Then  comes  *  a  passage  obviously  founded  upon  the 
one  just  quoted  from  Bracton,  which  leaves  no  doubt  as  to 
the  functions  of  the  petty  jury :  "  And  afterwards  let  the 
"  jurors  be  charged  of  what  fact  they  are  to  speak  the  truth, 
"  and  then  go  and  confer  together  and  be  kept  by  a  bailifif." 
.  .  .  "If  they  cannot  all  agree  in  one  mind  let  them  be 
"  separated  and  examined  why  they  cannot  agree ;  and  if  the 
"  greater  part  of  them  know  the  truth  and  the  other  part 
"  do  not,  judgment  shall  be  according  to  the  opinion  of  the 

1  Nicholls'  Britton,  Ixix.  2  Britton,  22-26. 

3  lb.  26-31.  *  lb.  31,  32. 


BRITTON   ON  JURIES.  259 

"  greater  part.     And  if  they  declare  upon  their  oaths  that  Ch.  Vlll. 

"  they  know  nothing  of  the  fact,  let  others  be  called  who  do 

"  know  it ;  and  if  he  who  put  himself  on  the  first  inquest 

"  will  not  put  himself  on  a  new  jury,  let  him  be  remanded 

"  back  to  penance  till  he  consents  thereto.      We  will  also 

"  that  if  any  man  who  is  indicted  of  a  crime  touching  life 

"  and  limb  and  perceives  that  the  verdict  of  the  inquest  on 

"  which  he  has  put  himself  is  likely  to  pass  against  him, 

"  desires  to  say  that  any  one  of  the  jurors  is  suborned  to 

'  condemn  him  by  the  lord  of  whom  the  accused  holds  his ' 

"  land,    through    greediness    of   the    escheat   or    for   other 

"  cause  by  any  one  else,  the  justices  thereupon  shall  carefully 

"  examine  the  jurors  whether  they  have  reason  to  think  that 

"  such  slander   is  true.      And  often   a  strict   examination  isi 

"  necessary,  for  in  such  case  inquiry  may  be  made  how  the 

"  jurors  are  informed  of  the  truth  of  their  verdict ;  when 

"  they  will  say  by  one  of  their  fellows,  and  he  peradventure 

"  will  say  that  he  heard  it  told  for  truth  at  the  tavern  or 

"  elsewhere  by  some   ribald   or  other  persons  unworthy  of 

"  credit,  or  it  may  be  that  he  or  they  by  whom  the  jurors 

"  have  been  informed  were  intreated   or  suborned  by  the 

"  lords  or  by  the  enemies  of  the  person  indicted  to  get  him 

"  condemned,  and  if  the  justices  find  this  to  be  the  fact,  let 

"  such  suborners  be  apprehended  and  punished  by  imprison- 

"  ment  and  fine.    And  if  the  jurors  are  in  doubt  of  the  matter 

"  and  not  certain,  the  judgment  ought  always  in  such  case  to 

"  be  for  the  defendant." 

There  is,  however,  evidence  that  though  the  jurors  were 
themselves  the  witnesses  by  whose  evidence  the  prisoner's 
fate  was  decided,  other  witnesses  might  be  and  some- 
times were  called  upon  criminal  trials.  ^  Witnesses  are  ex- 
pressly mentioned  in  the  Leg&s  Henrici  Primi  as  taking  part 
in  trials.  Moreover  ^  one  of  the  entries  reprinted  by  Sir  F. 
Palgrave  from  the  records  of  the  eyre  of  Gloucester  m  the  fifth 
year  of  Henry  III.  is  as  follows :  "  William,  son  of  Matilda, 
"  was  taken  and  imprisoned  at  Gloucester  for  the  death  of 
"  William  Blund,  whom  he  killed ;  and  Nicholas  Church,  John, 

1  Leges  H.  P.  v.  "  De  Causarum  ProprUtatibus." — Thoi'po  i.  p.  505. 
^  Palgrave,  Proofs  and  Illustrations,  abiSXYii.  21. 

s  2 


26o  PBOGRESS  OF  JURIES. 

Ch.  VIII    "  the  soQ  of  Melisent,  Walterde  Havena,  Walter  Smith,  and 

"  Richard  de  Herdeshelt,  and  several  others  who  were  present 

"  when  he  was  killed,  testified  that  they  saw  when  he  killed 
"  him,  and  that  they  immediately  upon  the  fact  took  him 
"  still  holding  in  his  hand  the  stick  with  which  he  killed 
"him,  and  besides  the  four  next  townships  testify  to  the 
"  same  thing  ;  and  besides  ....  and  Dionysia,  the  wife  of 
"  William  Bltind,  appealed  him  of  the  aforesaid  death  as  seen 
"  by  her ;  and  besides  twelve  jurors  say  that  he  is  guilty. 
"  And  he  defends  himself  against  all.  But  because  he  was 
''  taken  still  holding  the  stick  in  his  hand  with  which  he 
"  killed  him,  and  all  with  one  voice  say  he  is  guilty,  it  is 
"  adjudged  that  he  cannot  defend  himself,  and  therefore  let 
"  him  be  hanged." 

In  this  case  there  were  five  witnesses,  four  townships,  and 
a  jury,  by  all  of  whom  the  accused  was  said  to  be  guilty. 

It  is  not  my  intention  to  try  to  trace  out  in  detail  the 
history  of  trial  by  jury.  The  authorities  already  given  show 
with  sufiicient  clearness  how  it  originated,  but  the  steps  by 
which  the  jury  ceased  to  be  witnesses  and  became  judges  of 
the  evidence  given  by  others  cannot  now  be  traced  without 
an  amount  of  labour  out  of  proportion  to  the  value  of  the 
result.  I  will,  however,  state  the  very  little  which  I  am  able 
to  say  upon  the  subject.  As  appears  by  the  passage  quoted 
above  from  Glanville,  the  process  which  took  place  when  a 
jury  said  that  they,  or  some  of  them,  were  ignorant  on  the 
matter  to  which  they  were  to  swear,  was  what  was  called 
"  afforcement."  That  is,  new  witnesses  were  added  until  the 
number  required  was  made  up.  This  process  was  weU 
exemplified  by  the  ^  practice,  which  was  followed  when  deeds 
or  charters  which  had  been  attested  by  witnesses  were  to  be 
proved.  The  witnesses  were,  it  seems,  a  kind  of  assessors 
to  the  jury,  and  this  was  the  origin  of  what,  till  very  modem 
times  indeed,  was  an  inflexible  rule  of  evidence  that  the 
attesting  witnesses  to  a  written  document  must  in  all  cases 
be    called   or  accounted  for.      As    the  juries  became  less 

1  Bracton,  i.  298-300  ;  Fortcsmc  de  Laudibus,  cli.  xxxii.,  and  Selden's 
note  ;  Brooke's  Ahridgmmt  Testmoignes.  As  to  the  modern  law,  see  my  Digest 
of  the  Law  of  Evidence,  articles  66  and  67,  and  note  xxviii. 


'  A  TRIAL  BY   JUEY  IN    I3O3.  261 

numerous  and  transactions   more  complicated,  this  clumsy  Ch.  viil. 
system  would  naturally  lead  up  to  the  system  now  in  use,  by 
which  the  jury  judge  of  the  evidence  of  the  witnesses. 

One  step  which  would  naturally  conduce  to  this  result  has 
left  behind  it  traces  which  are  still  distinguishable.  The 
juries  in  early  times  seem  to  have  been  accustomed  not 
only  to  give  general  verdicts  of  guilty,  or  not  guilty,  but  to 
answer  questions  as  to  specific  facts  from  which  the  judgment 
followed  as  a  legal  consequence.  A  remarkable  instance 
occurs  in  the  ^  Year-book,  30  &  31  Edw.  1  (1303).  "  It  was 
"presented  by  the  twelve  of  Y,  that  Hugo"  committed  a 
rape.  Hugo  was  brought  to  the  bar  by  Brian  and  Nicholas. 
The  justice  (his  name  is  not  given)  told  them  to  stand  back, 
as  the  prisoner  could  not  have  counsel  against  the  king, 
wherefore  "  prsecipimus  ex  parte  regis  quod  omnes  narra- 
"  tores  qui  sunt  de  consilio  vestro  recedant."  Hugo  was 
then  asked  what  he  had  to  say  to  the  charge  against  him  ? 
He  replied  that  he  was  a  clerk.  The  justice  replied  that  he, 
having  married  a  widow,  was  "  bigamus,"  and  had  so  lost  his 
privilege.  Hugo  said  that  his  wife  was  not  a  widow  when  he 
married  her.  "  Justiciarius :  Hoc  debet  statim  sciri,  et  hone- 
"  ravit  duodecim  si  Hugo,  &c.,  qui  dixerunt  quod  ipsa  fuit 
"  vidua  quando  dominus  Hugo  contraxit  cum  eL  Sed  notan- 
"  dum  quod,  &c. "  {i.e.  the  jurors),  "  de  novo  non  fuerunt 
"jurati  quia  prius  jurati."  Hugo  was  then  required  to 
answer  further.  He  objected  that  he  was  a  knight  and  his 
jurors  were  not  his  equals,  not  being  knights.  "  Et  nomina- 
"  bantur  milites."  He  was  asked  if  he  challenged  any  of 
them.  He  said  he  would  not  consent.  The  judges  could 
take  what  inquest  they  pleased.  The  justice  said  in  that 
case  he  must  be  put  to  his  penance,  and  he  had  better  plead. 
Hugo  then  asked  to  have  his  challenges  beard.  The  justice 
agreed,  but  Hugo  said  he  could  not  read,  and  asked  for 
counsel.  ^  The  justice  asked  how  he  could  claim  clergy  if 
he  could  not  read  ?  He  was  refused  counsel,  but  allowed  to 
be  prompted  by  a  person  who  could  read.     He  then  made 

1  Published  by  direction  of  the  Master  of  the  EoUs  in  1863.     The  case 
referred  to  is  in  Appendix  ii.  p.  529-532. 

2  Upon  this,  "  Hugo  stetit  inpace  quasi  confusus.     Justiciarius  :  ITon  sitis 
"  stupefacti,  mcdo  est  tempus  loquendi." 


262  CASE  OF   BERKELEY — INQUEST  OF  OFFICE. 

Ch.  VIII.  his  challenges,  which  were  allowed.  The  justice  then  repeated 
the  charge  to  the  jury,  ending  thus  :  "  Ideo  vobis  injungimus 
"  in  virtute  sacramenti  utrum  dominus  Hugo  dictam  mu- 
"  lierem  rapuit  vel  non  nobis  dicatis.  Duodedm :  Nos 
"  dicimus  quod  ipsa  rapiebatur  vi  per  homines  domini 
"  Hugonis.  Jitsticiarius :  Fuitne  Hugo  consentiens  ad 
"  factum  vel  non  ?  Duodedm :  N"on.  Justiciarius :  Cogno- 
"  verunt  ne  earn  camaliter.  Duodedm  :  Sic.  Justidarms  : 
"  Muliere  invito  vel  consentiente  ?  Duodedm :  Consentiente. 
"  ^  Credo  quod  deberet  hie  quod  tamen  post  defuit.  Justi- 
"  darius :  Domine  Hugo  quia  ipsi  vos  acquietant  nos  vos 
"  acquietamus." 

In  the  case  of  Berkeley,  tried  in  Parliament  for  the  murder 
of  Edward  II.,  ^  already  referred  to  for  another  purpose,  the 
jury  were  questioned  in  like  manner  in  detail,  and  gave 
specific  answers.  Other  instances  of  the  same  kind  might 
be  alleged. 

It  is  obvious  that  if  the  same  jury  had  to  answer  to  facts 
which  might  have  no  connection  with  each  other  (as  whether 
Hugo  was  higamus,  and  whether  he  had  committed  rape), 
they  would  have  to  rely  upon  evidence  given  by  others,  and 
not  upon  their  own  knowledge,  and  it  is  also  obvious  that 
when  a  variety  of  questions  arose,  more  or  less  connected 
with  and  dependent  upon  each  other,  it  would  be  the  most 
convenient  course  to  explain  to  them  how  the  law  stood,  and 
to  take  from  them  a  general  verdict.  In  such  a  case  as 
Hugo's,  for  instance,  a  modem  judge  would  say,  "  before  you 
"  can  return  a  verdict  of  guilty,  you  must  be  satisfied  not 
"  only  that  the  fact  took  place,  but  that  the  woman  did  not 
''  consent ;  if  you  are  not  satisfied  as  to  either  point  you  will 
"  acquit  the  prisoner."  Whenever  this  stage  was  reached  our 
present  system  would  be  established  in  principle. 

3 1  have  found  one  case  in  which  an  inquest  of  office  set 
forth  the  reasons  which  led  them  to  find  that  one  of  the 
king's  tenants  was  a  minor  at  a  given  date.  The  reasons 
are  that  several  knights  and  squires  on  the  inquest  remem- 

1  This  seems  to  be  a  remark  of  the  reporter,  indicating  that  something  was 
left  out. 

"  Ante,  p.  147.  3  2  Mot.  Par.  291a,  292J  (1366). 


FOETESCUE  ON  JURIES.  263 

bered  the  child's  father  coming  to  the  siege  of  Calais,  and  ch.  vlll. 

saying,  he  had   just  had  a  son  born;  that  the  then  abbot      • 

of  St.  Augustine  at  Canterbury  was  about  a  month  before 
his  death  godfather  to  the  child ;  and  that  the  date  of  the 
abbot's  death  was  fixed  by  the  date  of  the  cong6  d  'dire  to  the 
Chapter  for  a  new  abbot,  and  that  a  Sir  Johan  Freebody, 
who  was  treasurer  to  Thomas  Daldon,  the  other  godfather 
of  the  child,  charged  Daldon,  in  an  account  bearing  a 
certain  date,  with  a  silver  cup  and  ewer  for  a  christening 
present  to  the  child.  In  this  instance  the  inquest  acted 
partly  on  their  own  knowledge  and  partly  on  facts  proved 
by  witnesses. 

Whatever  inferences  may  be  drawn  from  the  scattered 
illustrations  and  broken  hints  which  are  to  be  found  on  the 
subject  in  the  Kolls  and  the  Year-books,  it  is  abundantly 
clear  that  trial  by  jury  as  we  now  know  it,  was  well  estab- 
lished, at  least  so  far  as  civil  cases  were  concerned,  in  all  its 
essential  features,  in  the  middle  of  the  fifteenth  century. 
This  is  put  beyond  all  question  by  the  full  account  given 
of  the  subject  in  Fortescue,  De  Laudibus  Legum  Anglice,  which 
must  have  been  written  between  1460  and  1470.  After 
describing  at  full  length  the  preliminaries  of  the  trial,  he  says 
that  the  record  and  the  issue  having  been  read  to  the  jury, 
'  "Each  of  the  parties  by  themselves,  or  their  counsel  in 
"  presence  of  the  court,  shall  declare  and  lay  open  to  the  jury, 
"  all  and  singular,  the  matters  and  evidences  whereby  they 
"  think  they  may  be  able  to  inform  the  court  concerning  the 
''  truth  of  the  point  in  question,  after  which  each  of  the  parties 
"  has  a  liberty  to  produce  before  the  court  all  such  witnesses 
"  as  they  please  or  can  get  to  appear  on  their  behalf,  who 
"  being  charged  upon  their  oaths  shall  give  in  evidence  all 
"  that  they  know  touching  the  truth  of  the  fact  concerning 
"  which  the  parties  are  at  issue."  He  afterwards  speaks  of 
the  jurors  themselves  as  "well  acquainted  with  all  the 
"  facts  which  the  evidences  depose,  and  with  their  several 
"  characters."  ^In  reference  to  criminal  trials  Fortescue 
does  not  mention  witnesses  at  all.  He  dwells  upon  the  power 
of  the  prisoner  to  challenge  thirty-five  jurors  peremptorily. 
1  Fortescue,  c.  xxvi.  p.  89  (Amos's  edition).         ^  lb.  c.  xxxvii.  p.  92,  93. 


264  FORTESCUE  ON   JURIES. 

Ch.  VIII.  An   innocent   man  need  fear  nothing,  because   "  none  but 

"  bis  neighbours,  men  of  honest  and  good  repute,  against 

"  whom  he  can  have  no  probable  cause  of  exception,  can  find 

"  the  prisoner  guilty."     Nor   can  a  guilty  person   escape. 

"  Such  a  man's  life  and  conversation  would  be  restraint  and 

"  terror  sufiScient  to  those  who  should  have  any  inclination 

"  to  acquit  him."     ^  The  prince  argues  with  his  chancellor 

in  such   a  way  as  to   imply   that  though   the  jury   were 

witnesses,  other  witnesses  were  or  might  be  called.     "  Wit- 

"  nesses  cannot   even   bring  about  such  a  wicked   device " 

(as  a  conviction  based  on  perjury),  "when  what   evidence 

"  they  give  in  must  be  in  open  court,  in  the  presence  and 

"  hearing  of  a  jury  of  twelve  men,  persons  of  good  character, 

"  neighbours   where   the   fact   was    committed,    apprised   of 

"  the  circumstances  in  question,  and  well  acquainted  with 

"  the  lives  and  conversations  of  the  witnesses,  especially  as 

"  they  be  near  neighbours,  and  cannot  but  know  whether 

"  they  be  worthy  of  credit  or  not.     It  cannot  be  a  secret  to 

"  every  one  of  the  jury  what  is  done  by  or  amongst  their 

"  neighbours.      I   know   of  myself  more  certainly  what  is 

"  a-doing  at  this  time  in  Berry  where  I  reside,  than  what  is 

"  doing  in  England,  neither  do  I  think  it  possible  that  such 

"  things  can  well  escape  the  observation  and  knowledge  of 

"  an  honest  man  as  happen  so  near  to  his  habitation,  even 

"  though  transacted  with  some  kind  of  secrecy." 

^  Further  on  the  prince  objects  that  he  fears  the  law  of 
England  as  to  juries  is  repugnant  to  Scripture.  "  It  is 
"  written  in  your  law  that  the  testimony  of  two  men  is  true." 
"  That  in  the  mouth  of  two  or  three  witnesses  every  word 
"  may  be  established."  ^  The  chancellor  replies  to  this, 
that  in  various  obvious  cases  the  rule  supposed  to  be  laid 
down  in  Scripture  cannot  apply,  and  that  the  prince  misap- 
prehends it,  but  his  most  important  remark  is  that  "the 
"  law  of  England  never  decides  a  cause  only  by  witnesses 
"  when  it  can  be  decided  by  a  jury  of  twelve  men." 

These  passages  show,  I  think,  with  sufficient  clearness  that 

^  Fortescue,  u.  xxviii.  p.  100.  The  work  is  in  the  form  of  a  conversation 
between  Fortesaie  and  Prince  Edward,  the  son  of  Henry  VI. 

^  lb.  u.  xxxi.  p.  Ill,  &c.  3  lb.  c.  xxxii. 


HALIFAX  GIBBET-LAW.  265 

by  the   middle   of  the  fifteenth   century  the   fundamental  Ch.  viti. 
principles   of   trial    by   jury   in    criminal    cases   had    been 
established  to  a  great  measure,  though  not  entirely. 

It  is  always  difficult  to  find  definite  illustrations  of  the 
working  of  rude  and  obsolete  institutions,  but  I  am  able  to 
offer  two  which  I  think  will  throw  some  light  upon  the  nature 
of  trial  by  jury  in  its  early  and  rude  form. 

The  first  is  taken  from  a  curious  tract,  called  '^Halifax  and 
its  Gibbet-law,  which  contains  not  only  a  full  account  of  the 
gibbet-law  of  Halifax  (said  by  Sir  F.  Palgrave  to  be  the  last 
vestige  of  the  law  of  infangthief),  but  also  what  purports  to 
be  a  report  of  the  last  case  in  which  it  was  put  in  force. 

Halifax,  it  is  stated,  is  part  of  the  duchy  of  Lancaster  and 
the  manor  of  Wakefield,  and  lies  within  the  forest  of  Hard- 
wick.  It  has  an  ancient  custom  "that  if  a  felon  be  taken 
"  within  their  Liberty  with  goods  stolen  out  of  or  within  the 
"  Liberty  or  Precincts  of  the  ^aid  Forest  either  handhabend, 
"  backberand,  or  confessand,  cloth  or  any  other  commodity  of 
"  the  value  of  thirteen-pence-halfpenny,  that  they  shall  after 
"  three  markets  or  meeting-days  within  the  town  of  Halifax 
"  next  after  such  his  apprehension,  and  being  condemned  he 
"  shall  be  taken  to  the  gibbet  and  there  have  his  head'cut  off 
"  from  his  body."  This  statement  is  intelligible  though  not 
very  grammatical.  ^The  author  justifies  the  wisdom  and 
humanity  of  the  custom  at  length  on  grounds  which  are 
not    convincing,   but    his    account  of    the    details  of   the 

^  Halifax  and  its  Cfibhet-law  placed  in  a  true  light,  together  with  a 
description  of  the  town,  the  nature  of  the  soil,  the  temper  and  disposition 
of  the  people,  the  antiquity  of  its  customary  law,  and  the  reasonableness  thereof, 
with  (many  other  things)  ;  Halifax  (no  date,  but  apparently  published  about 
the  middle  of  the  last  century.  In  the  catalogue  of  the  bookseller  from 
whom  I  bought  it,  it  is  said  to  be  written  by  "  Dr.  Samuel  Midgley."  The 
report  of  the  trial  is  a  hundred  years  subsequent  to  the  trial,  but  it  is 
hardly  likely  to  have  been  forged. 

2  Here  is  one  of  his  arguments.  "  It  is  a  received  maxim  that  the  common 
"  law  is  grounded  upon  reason,  and  so  is  undeniable.  Now  by  the  common 
"  law  it  is  felony  and  death  for  any  person  to  steal  a  thing  which  is  above  the 
"value  of  twelvepence,  on  a  verbal  proof:  surely  then  it  must  needs  pass 
"  undeniable  that  it  ought  to  be  felony  and  death  to  him  that  steals  anything 
"  above  the  value  of  thirteen-pence-halfpenny,  more  especially  ought  it  to  be 
"  so  where  the  person  is  remarkably  known  and  taken  in  the  fact,  that  the 
"  goods  are  brought  in  for  evidence  against  him  "  (the  bricks  are  there  to  this 
day,  therefore  deny  it  not),  "and  the  truth  thereof  confirmed  by  his  own 
"  confession  ;  this  is  a  matter  of  fact  which  cannot  be  denied  by  any  prudent 
■•  and  considering  person." 


266  PROCEDURE   AT   HALIFAX. 

Ch.  VIII.  procedure  is  extremely  curious,  and  carries  us  back  to  remote 
antiquity.  There  were  seventeen  townships  and  hamlets  in 
the  liberties,  who  chose  the  most  wealthy  and  best-reputed 
men  for  their  juries.  "When  a  felon  was  arrested,  he  was 
brought  before  the  bailiff  of  the  lord  of  the  manor  of  Wake- 
field. The  bailiff  had  a  gaol  in  which  he  detained  the 
prisoner.  He  then  issued  a  summons  to  the  constables  of 
four  several  towns  to  require  four  frith  burghers  from  each  of 
those  towns  to  attend  at  a  time  and  place  fixed.  "  At  which 
"  time  of  appearance  both  the  felons  and  the  prosecutors  are 
"  brought  before  them  face  to  face,  and  the  thing  stolen 
"  produced  to  their  view,"  ..."  and  if  upon  examination  they 
■'  do  find  that  the  felon  is  not  only  guilty  of  the  goods  stolen, 
"  but  also  do  find  the  value  of  the  goods  stolen  to  be  of  the 
"  value  of  thirteen-pence-halfpenny  or  above,  then  is  the 
"  felon  found  guilty  by  the  said  jury :  grounding  that  their 
"  verdict  upon  the  evidence  of  the  goods  stolen  and  lying 
"  before  them,  together  with  his  own  confession,  which  in 
"  such  cases  is  always  required,  and  being  so  found  guilty 
"  is  by  them  condemned  to  be  beheaded  according  to  ancient 
"  custom."  After  conviction  the  felon  was  sent  to  prison  for 
a  week  or  thereabouts.  There  were  three  market-days  in 
every  week,  and  he  was  exposed  publicly  at  each  in  the  stocks 
with  the  goods  on  his  back  or  by  him,  after  which  he  was 
executed  by  the  gibbet,  a  primitive  guillotine,  of  which  a  cut 
is  given  in  the  frontispiece.  It  seems  that  the  rule  that 
the  prisoner  must  be  taken  "  confessand  "  was  considered  to 
be  satisfied  if  he  could  not  give  a  satisfactory  account  of  his 
possession  of  the  stolen  goods,  "  and  doth  refuse  when  asked 
"  to  tell  where  he  found  it  or  how  he  came  by  the  same ;  nor 
"  doth  produce  any  witness  to  testify  for  him  how  he  came 
"  by  such  things,  but  seeks  to  evade  the  truth  of  the  matter 
"  by  trivial  excuses,  various  reports,  and  dubious  stories." 

In  illustration  of  the  custom  there  is  given  "  a  true  and 
"  impartial  narrative  of  the  trials  of  Abrabam  Wilkinson, 
"John  Wilkinson,  and  Anthony  Mitchell,"  in  April,  1650, 
which  was  the  last  instance  in  which  the  ctistom  was  put 
in  force. 

At  the  complaint  and  prosecution  of  Samuel  Colbock,  John 


LAST  TEIAL  AT  HALIFAX.  ,  267 

Fielden,  and  John  Cutforth,  "  these  above-said  felonious  per-  Ch.  Vlll 

"  sons  "  were, ''  about  the  latter  end  of  April,"  1650,  taken  into 

the  custody  of  the  chief  bailiff  of  Halifax,  who  forthwith  issued 

his  summons  to  the  constables  of  HaUfax,  Sowerby,  Warby, 

and  Kircoat,  requiring  them  to  attend,  each  with  four  men 

from  his  constabulary,  at  the  high  bailiff's  house  in  Halifax, 

on  the  27th  April,  "  to  hear,  examine,  and  determine,"  the 

cases. 

Sixteen  jurors  (the  names  are  given)  accordingly  came  to 
the  bailiff's  house,  where  "in  a  convenient  room"  they  were 
brought  face  to  face  with  the  prisoners  and  the  goods.  The 
bailiff  then  delivered  a  short  charge  in  these  words :  "  Neigh- 
"  hours  and  friends,  you  are  summoned  hither  according  to 
"  the  antient  custom  of  the  forest  of  Hard  wick,  and  by  virtue 
"  thereof  you  are  required  to  make  diligent  search  and  inquiry 
"  into  such  complaints  as  are  brought  against  the  felons 
"  concerning  the  goods  that  are  set  before  you,  and  to  make 
"  such  just,  equitable,  and  faithful  determination  betwixt 
"  party  and  party  as  you  will  answer  it  to  God  and  your  own 
"  consciences,"  which  said,  the  several  informations  were 
brought  in  and  alleged  against  them  in  manner  and  form 
following :  — 

"  The  information  of  Samuel  Colbeck  of  Warby. 

"  The  informant  saith  and  affirmeth  that  upon  Tuesday, 
"  the  19th  of  April,  1650,  he  had  feloniously  taken  from 
"  his  tenters  by  Abraham  Wilkinson,  John  Wilkinson,  and 
"  Anthony  Mitchell,  sixteen  yards  of  russet-coloured  kersey, 
"  part  of  which  cloth  you  have  here  before  you,  and  of  which 
"  you  are  to  inquire  of  its  worth  and  value,  and  take  their 
"  confession  here  before  you." 

The  information  of  Cutforth  related  to  the  colts  ;  and  the 
information  of  Fielden  to  certain  cloth  as  to  which  he  said 
{iTiter  alia)  that  one  Mrs.  Gibson  said  that  Abraham  Wilkin- 
son delivered  it  to  her.  To  this  Wilkinson  said  that  "he 
"did  not  confess  the  aforesaid  piece  to  Gibson's  wife,  but 
"  saith  that  he  was  by  and  present  when  John  Spencer,  a 
"soldier  in  Chesterfield,  did  deliver  the  said  piece  unto 
"  Gibson's  wife." 

"  Thereupon  some  debates  arising  amongst  the  jurymen 


268  LAST  TRIAL  AT  HALIFAX. 

Ch.  vni.  "  touching  Abraham  Wilkinson's  reply  to  the  last  information, 
"  after  some  mature  consideration  the  jury,  as  is  customary 
"  in  such  cases,  did  adjourn  themselves  unto  the  30th  day  of 
"  April,  resolving  that  day  fully  to  give  in  their  verdict.  And 
"  accordingly  on  the  said  .30th  of  April  they  met  together 
"  again  at  the  bailiff's  house,  together  with  the  informers. 
"  felons,  and  stolen  goods,  some  whereof  were  placed  before  them 
"  in  the  room,  and  the  rest  in  such  convenient  places  where 
"  the  jury  might  view  them.  And  after  a  full  examination 
"  and  hearing  of  the  whole  matter,  they  with  united  consent 
"  gave  in  their  verdict  in  writing  in  the  words  following  : — 

"  An  inquisition  taken  at  Halifax,  the  27th  and  30th  days 
"  of  April,  1650,  upon  certain  informations  hereunto  annexed. 
"  To  the  complaint  of  the  said  Samuel  Colbeck,  &c. 
"  We,  whose  names  are  hereunto  subscribed,  being  sum- 
"  moned  and  empanelled  according  to  ancient  custom,  do  find 
"  by  the  confession  of  Abraham  Wilkinson  of  Warby,  within 
"  the  liberty  of  Halifax,  being  apprehended  and  taken,  that 
"  he,  the  said  Abraham  Wilkinson,  took  the  cloth  in  the  in- 
"  formation  mentioned,  with  the  assistance  of  his  brother, 
"  John  Wilkinson."  They  then  describe  the  cloth,  and  value 
it  at  nine  shillings. 

The  information  of  Cutforth  as  to  the  colts  is  dealt  with 
in  a  similar  way.  It  begins  :  "  We,  the  aforesaid  empanelled 
"jury,  do  find  by  the  free  confession  of  Anthony  Mitchell  that 
"  John  Wilkinson  did  take  the  black  colt  of  John  Cutforth's 
"  from  Durker  Green,  and  that  himself  and  Abraham  Wilkin- 
"  son  were  there  present  at  the  time,  and  also  that  Anthony 
"  Mitchell  himself  did  sell  the  aforesaid  colt  to  Simeon 
"  Helliwell."  .  .  .  .  "  Likewise,  we  find  by  the  confession  of  the 
"  aforesaid  Anthony  Mitchell  that  Abraham  Wilkinson  did 
"  take  the  grey  colt  of  Paul  Johnson's  from  off  Durker  Green 
"  aforesaid,  and  that  John  Wilkinson  was  with  his  brother 
"  Abraham  Wilkinson  when  he  took  him,  and  that  the  said 
"  Anthony  Mitchell  was  by  and  present  when  Abraham 
"  Wilkinson  did  stay  and  bridle  the  grey  colt.  Also  he  con- 
''  fesseth  that  himself  and  John  Wilkinson  did  leave  the  said 
"  colt  with  George  Harrison."  The  colts  were  valued  at 
forty-eight  shillings  and  three  pounds  respectively. 


REMARKS  ON  THE  TRIAL.  269 

After  these  proceedings  follows  "  the  determinate  sentence,"  ch.  viii. 

which  recites  the  principal  matters  found,  and  then  goes  on :       

"  By  the  ancient  custom  and  liberty  of  Halifax,  whereof  the 
"  memory  of  man  is  not  to  the  contrary,  the  said  Abraham 
"Wilkinson  and  Anthony  Mitchell  are  to  suffer  death  by 
"  having  their  heads  severed  and  cut  off  from  their  bodies 
"  at  Halifax  gibbet,  unto  which  verdict  we  subscribe  our 
"  names,  the  30th  April,  1650." 

They  seem  to  have  been  executed  accordingly. 

I  have  given  a  full  account  of  this  strange  proceeding,  not 
only  on  account  of  its  great  curiosity,  but  because  its  details 
illustrate  many  obscure  points  in  the  ancient  law.  This  trial 
took  place,  it  must  be  recollected,  under  the  Commonwealth,' 
and  only  three  years  before  a  comprehensive  scheme  for  re- 
forming the  law,  to  be  hereafter  noticed,  was  brought  before  the 
Barebones  Parliament ;  but  at  every  point  it  displays  traces  of 
the  earliest  form  of  our  judicial  institutions.  The  townships 
are  represented  each  by  four  men,  who  are  brought  up  by  the 
constable,  who  represented  and  succeeded  to  the  reeve.  The 
bailiff  charges  them  to  inquire,  much  as  a  justice  might  have 
charged  the  inquest  in  Bracton's  day.  Obviously  they  must 
have  questioned  the  prisoners  in  order  to  "take  their  confes- 
"  sions."  When  Abraham  Wilkinson  contradicts  a  statement 
ascribed  to  him,  they  adjourn  for  three  days,  probably  to  make 
local  inquiries.  After  the  adjournment  they  talk  it  all  over 
again  with  the  prisoners  and  get  further  confessions.  Pro- 
bably they  may  have  gone  in  the  interval  to  Durker  Green 
and  questioned  Simeon  Helliwell  and  George  Harrison,  and 
seen  other  places  and  persons,  and  it  seems  that  in  some  way 
or  other  their  inquiries  were  favourable  to  John  Wilkinson, 
who  seems  to  have  been  acquitted,  notwithstanding  Mitchell's 
confessions,  which  implicated  him.  Lastly,  the  juries  not 
only  find  all  the  facts  in  detail,  but  they,  like  the  suitors  of 
the  old  County  Courts,  are  the  judges,  and  the  bailiff  merely 
registers  their  sentence.  On  the  other  hand,  the  informations 
and  the  inquest  were  obviously  drawn  up  by  a  lawyer,  who 
probably  was  the  bailiff,  and  this  shows  how  great  an  authority 
he  might  come  to  have  over  the  deliberations  of  jurors,  and 
also  how  the  jury  held  that  intermediate  position  between 


270  COURT  OF  THE  LIBERTY  OF  THE  SAVOY. 

Ch.  VIII.  modern  witnesses  and  modern  jurors  which  I  have  tried  to 
sketch.  Lastly,  the  case  shows  how  liberally  the  stewards 
and  jurors  of  franchise  courts  would  be  likely  to  construe  the 
restrictions  laid  upon  the  right  of  "  infangthief "  by  the  rule 
that  the  criminal  ought  to  be  handhabend  or  backberand, 
and  even  "  confessand." 

There  is  nothing  whatever  to  show  that  either  Abraham 
Wilkinson  or  Anthony  Mitchell  was  taken  "  handhabend  or 
"  backbarend,"  unless  those  words  include  every  case  in  which 
the  goods  were  taken  and  produced  before  the  jury,  and  in 
which  there  was  evidence  that  the  prisoner  took  them.  As 
for  "  confessand,"  it  seems  probable  that  the  prisoner's  con- 
fessions consisted  only  in  unsatisfactory  answers  and  alleged 
admissions  to  persons  other  than  the  jurors. 

The  second  illustration  is  taken  from  an  institution  still  in 
full  vigour — the  Court  of  the  Liberty  of  the  Savoy,  the  pro- 
ceedings of  which  will  help  us  to  realize  the  nature  of  the 
ancient  trial  by  jury,  and  to  understand  how  they  dispensed 
with  witnesses.  The  manor  and  honour  of  the  Savoy  lies 
immediately  to  the  west  of  the  place  where  Temple  Bar 
formerly  stood,  and  extends  for  some  distance  westwards 
along  the  bank  of  the  river,  as  far  (I  believe)  as  the  middle 
of  Cecil  Street.  It  is  divided  into  four  wards,  and  has  a 
court  leet  which  meets  twice  a  year,  within  a  month  after 
Easter,  and  a  month  after  Michaelmas.  Special  courts  can 
be  held  if  required.  The  court  consists  "of  the  ^  steward,  who 
presides,  and  eight  burgesses,  two  from  each  of  the  four  wards 
of  the  manor.  A  jury  for  the  year,  consisting  of  sixteen,  is 
annually  elected  at  the  court.  The  steward  fixes  the  day,  and 
the  bailiff  summons  the  burgesses  and  the  jury,  as  well  as  a 
proper  number  of  residents  to  be  sworn  in  as  jurymen  for  the 
year  following.  The  jury  are  called  over,  and  absentees, 
if  any,  having  been  fined,  are  sworn;  the  form  of  oath 
being  the  same  as  that  which  is  administered  to  a  grand 
jury  at  Assizes  and  Quarter  Sessions.  They  then  make  their 
presentments,  which  are  in  writing,  and  are  signed  by  the 

'  My  old  and  valued  friend,  Mr.  S.  B.  Bristowe,  Q.C.,  formerly  M.P.  for 
Newark,  and  now  Judge  of  the  Nottingham  County  Court,  is  the  steward,  and 
to  him  I  owe  the  curious  information  in  the  text. 


PROCEDUBE  AT  COUET  OF  THE  SAVOY.  27 1 

jury.  These  presentments  are  brought  about  as  follows  : —  Ch.  VIII. 
If  any  inhabitant  thinks  that  a  neighbour's  house  is  unsafe, 
or  that  a  house  is  disorderly,  or  the  like,  he  complains  verbally 
or  otherwise  to  the  foreman  of  the  jury  for  the  time  being. 
The  foreman  calls  the  jury  together,  and  they  satisfy  them- 
selves in  any  way  they  please  as  to  the  matter  complained  of. 
They  then  give  notice  to  the  pS,rty  complained  of,  and  if  the 
nuisance  is  not  abated  to  their  satisfaction  the  matter  is  em- 
bodied in  the  form  of  a  presentment,  which  is  given  in  at  the 
court  day  to  the  steward.  The  steward  inspects  the  present- 
ment to  see  if  it  is  in  proper  form  and  relates  to  a  matter 
within  the  jurisdiction  of  the  court,  and  if  he  approves  of  it 
(he  informs  me  that  he  never  has  occasion  to  disapprove)  and 
if  the  jury  think  that  the  party  presented  ought  to  be  fined, 
four  of  their  number  are  appointed  affeerers,  and  they  "  affeer  " 
or  settle  the  fine.  The  finding  of  the  jury  is  thus  conclusive 
upon  the  facts,  although  they  hear  no  evidence,  examine  no 
witnesses,  and  go  through  nothing  in  the  nature  of  a  trial. 
The  leet  jury  thus  represents  that  stage  in  the  history  just 
related  at  which  ordeal  and  purgation  had  fallen  into  disuse, 
and  the  substitute  for  them  had  not  been  discovered. 

I  have  been  favoured  with  a  copy  of  the  presentments  at 
a  court  held  on  the  26th  April,  1880.  The  most  important 
of  them  states  in  language  of  the  simplest  and  most  untech- 
nical  kind,  that  in  October,  1879,  the  attention  of  the  jury 
was  called  to  a  certain  disorderly  house  kept  by  a  person 
named,  that  thereupon  they  gave  that  person  notice  to  dis- 
continue her  business  within  a  week,  that  she  did  so,  but 
afterwards  returned  and  carried  on  the  same  business.  The 
jury  accordingly  present  that  the  woman  named  does  carry 
on  the  business  in  question  and  that  her  house  is  a  common 

nuisance,  and  they  "  therefore  amerce  the  said in  the 

"sum  of  £50,"  which  said  "amercement  is  affeered  by  A.  B. 
"  C.  and  D." 

This  instance  actually  existing  amongst  us  appears  to  me 
to  throw  great  Kght  upon  the  manner  in  which  trial  by  jury 
originated.  It  is  an  institution  fit  for  a  small  precinct  where 
every  one  knows  every  one  and  can  watch  and  form  an  opinion 
upon  what  goes  on.     In  the  few  streets  which  form  the  liberty 


272  PROCEDURE  AT  COURT  OF  THE  SAVOY. 

Ch.  vili.  of  the  Savoy,  such  an  institution  is,  I  have  no  doubt,  as 
useful  and  efficient  as  it  is  curious.  If  it  were  extended  to 
a  large  town  or  county  it  obviously  could  not  be  worked 
at  all. 

Even  in  the  Savoy  it  would  probably  not  be  permitted  to 
continue  if  it  involved  a  result  more  serious  than  a  money 
fine,  or  was  applied  to  offences  less  easy  of  proof  than  keeping 
disorderly  houses,  and  other  common  nuisances  or  petty 
offences.  In  the  case  in  question  the  steward  made  an  estreat 
directed  to  the  bailiff  requiring  him  to  raise  the  £50,  and 
the  bailiff  returned  that  the  person  concerned  had  no  goods 
within  the  jurisdiction. 

If  after  this  she  continued  her  misconduct,  she  would  have 
to  be  indicted  at  the  Quarter  Sessions,  when  she  might 
be  imprisoned,  though  on  the  other  hand  she  would  be 
entitled  to  trial  by  a  petty  jury. 


CRIMINAL   TRIALS.  27c 


CHAPTER  IX. 

HISTORY  OF  THE  LAW  OF  CRIMINAL  PROCEDURE  CONTINUED. 
— LEGAL  INCIDENTS  OF  A  CRIMINAL  TRIAL — INDICT- 
MENT AND  INFORMATION — ARRAIGNMENT,  TRIAL,  AND 
VERDICT. 

Having  in  the  last  chapter  given  an  account  of  the  various  Chap.  ix. 
forms  of  accusation  and  trial  which  have  finally  merged 
into  trial  by  jury,  I  propose  in  the  present  chapter  to 
give  an  account  of  the  legal  incidents  of  a  criminal  trial. 
These  are  the  indictment  or  information,  the  arraign- 
ment of  the  prisoner,  and  his  trial  down  to  the  verdict  and 
judgment. 

Indictments. — The  indictment  was  originally  an  accusa- 
tion presented  by  the  grand  jury  upon  their  own  knowledge, 
whereby  some  person  was  charged  with  a  crime.  This, 
however,  has  long  ceased  to  be  the  case,  and  indictments  are 
now  drawn  and  proved  in  the  following  way  : — 

When  a  person  is  committed  for  trial,  some  one,  as  often  as 
not  a  police-constable,  is  bound  over  by  the  magistrate  to 
prosecute,  and  the  depositions  are  sent  to  the  clerk  of 
assize  if  the  case  is  to  be  tried  at  the  assizes,  or  to  the  clerk 
of  the  peace  if  it  is  to  be  tried  at  the  Quarter  Sessions.  A 
solicitor  is  in  practice  almost  always  employed  by  the  prose- 
cutor, and  he  as  a  rule  instructs  the  clerk  of  assize  or  clerk 
of  the  peace  to  draw  the  indictment,  the  depositions  serving 
as  instructions.  The  prosecutor,  however,  may,  if  he  prefers  it, 
have  his  indictment  drawn  by  counsel  or  by  his  own  solicitor, 
and  counsel  are  often  instructed  for  this  purpose  if  the  case 
presents  any  peculiarity.  The  indictment  being  drawn  has 
VOL.  I.  '  t 


2  74  INDICTMENTS. 

CHA.P.  IX.  endorsed  upon  it  the  names  of  the  witnesses,  and  the  solicitor 
for  the  prosecution  takes  it  and  them  to  the  grand  jury-room, 
to  which  he  is  admitted  or  not  as  the  grand  jury  think  proper. 
The  grand  jury  sit  by  themselves  and  hear  the  witnesses  one 
at  a  time,  no  one  else  being  present  except  the  solicitor  for 
the  prosecutor  if  he  is  admitted.  The  name  of  each  Avitness 
examined  before  the  grand  jury  is  initialled  by  the  foreman ; 
and  when  they  have  heard  enough  to  satisfy  themselves  that 
a  prima  facie  case  is  or  is  not  made  out  against  the  prisoner, 
they  endorse  upon  the  indictment  "  a  true  bill,"  or  "  no  true 
bill,"  as  the  case  may  be  (in  the  days  of  law  Latin  the 
endorsements  were  "Billa  Vera,"  or  "Ignoramus"),  and 
come  into  court  and  hand  the  indictments  to  the  clerk  of 
assize  or  clerk  of  the  peace,  who  says,  "  Gentlemen,  you  find 
"  a  true  bill,"  or  "no  true  bill"  as  the  case  may  be,  "against 
"  A.  B.  for  felony  or  misdemeanour."  If  the  finding  is 
"  no  true  bill,"  the  matter  drops  and  the  prisoner  is  dis- 
charged, though  he  is  liable  to  he  indicted  again.  If  the 
finding  is  "  a  true  bill,"  the  trial  proceeds  and  the  "  bill " 
becomes  an  indictment.  As  an  indictment  must  be  found  by 
a  majority  of  the  grand  jury,  and  as  it  must  also  be  found  by 
twelve  grand  jurors  at  least,  grand  juries  are  generally  composed 
of  twenty-three  persons,  so  that 'the  smallest  possible  majority 
may  consist  of  twelve.  They  may,  however,  consist  of  any 
numlDer  not  less  than  twelve. 

The  indictment  is  the  foundation  of  the  record  in  all 
criminal  cases,  and  is  indeed  the  only  document  connected 
with  the  trial  which  in  all  cases  is  in  writing.  It  is  in  the 
form  of  a  statement  upon  oath  by  the  grand  jury  that  the 
prisoner  committed  the  offence  with  which  he  is  charged.  This 
assertion  in  former  times  went  a  long  way  (as  I  have  already 
shown),  to  his  conviction.  At  present,  however,  it  is  a  mere 
accusation.  It  is  now  a  far  simpler  document  than  it  would  have 
been  in  early  times,  or  even  early  in  the  present  reign.  I  can- 
not say  when  it  was  first  enacted  that  indictments  should  be  in 
writing,     i  It  is  said  by  Keeve  that  a  statute  to  that  effect 

'  Hist,  of  Eng.  Law,  i.  424.  The  only  act  of  the  sort  I  can  find  is  13  Edw.  1, 
c.  13,  which  applies  only  to  indictments  taken  by  sheriifs  in  their  toums.  See, 
too,  1  Edw.  3,  s.  2,  c.  17. 


HISTOEY  OF  INDICTMENTS.  275 

was  passed  under  Edward  I.,  but  however  this  may  be,  I  Chap.  IX. 
think   it  is   clear  that  the   form  of  indictments,  and  the 
extreme  strictness  with  which  rules  respecting  them  have 
been    observed,    were    derived    principally   from    the    laws 
relating  to  appeals.     As  I  have  already  stated,  the  utmost 
strictness   and   particularity  was  required    of  the   appellor 
in   the  statement   of  his  case,  which  was  enrolled  before 
the    coroners,    and    variances    between    the    allegations    so 
made    and    those    made    before    the    justices    were    fatal. 
Elaborate  provisions   are   contained    in    Bracton    for    com- 
paring   the    two    sets    of    statements    together,    and    for 
settling  the  relative  authority  of  the  rolls  kept  by  different 
coroners   if    they   varied,    and   of  the    rolls   kept .  by  the 
sheriffs. 

The  history  of  indictments  is  a  branch  of  the  history 
of  the  law  of  special  pleading.  It  would  extend  this  work 
beyond  all  limits  if  I  were  to  attempt  to  enter  upon  this 
subject  at  length.  It  is  enough  to  say  that  in  all  common 
cases  the  pleadings  in  a  criminal  trial  have  always  consisted, 
and  still  consist,  of  an  indictment  engrossed  on  parch- 
ment, and  a  plea  given  by  the  accused  person  orally  in  open 
court,  of  guilty  or  not  guilty.  The  requisites  of  an  indict- 
ment at  common  law  differed  hardly  at  all  from  the  earliest 
times  till  our  own,  indeed  the  only  statutes  which  much 
affected  them  up  to  the  year  1827  were  what  was  called  the 
Statute  of  Additions  (1  Hen.  5,  c.  5),  which  provided  that 
the  names  of  the  defendants  should  be  followed  by  a  state- 
ment of  "  their  estate  or  degree  or  mystery,  and  of  the  towns, 
"  hamlets,  or  place,  and  counties,  in  which  they  were,"  and 
the  4  Geo.  2,  c.  26,  which  enacted  that  all  indictments  should 
be  in  English.  Subject  to  these  alterations  an  indictment 
under  George  IV.  was  what  an  indictment  under  Edward 
III.,  and  probably  under  Edward  I.,  had  been.  Its  requi- 
sites were,  and  subject  to  modem  amendments,  still  are, 
as  follows : — 

It  consists  of  a  commencement,  a  statement,  and  a  con- 
clusion. The  conclusion  by  recent  legislation  has  ceased 
to  be  of  importance,  but  the  rules  as  to  the  venue  and 
the  statement  are  still  important,  and  each  is  curious. 

T  2 


2  76  VENUE. 

Chap.  IX.       The  Venue. — The  venue  is  in  this  form — 

HampshiTe  )  The  jurors  for  our 

to  wit;  )      Lady      the     Queen 

or,  upon     their     oaths, 

Central  Criminal      )      present,  &c. 


Court  to  wit ; 

or, 

County  of  the  Town 

of  Nottingham 

to  wit ; 


I 


The  object  of  this  beginning  is  to  show  that  the  court  has 
jurisdiction  over  the  offence  to  be  tried,  and  the  venue  accord- 
ingly refers  to  the  local  area  over  which,  by  the  commission 
under   which  it   sits,  the  court  has  jurisdiction.     Thus  in 
the  three  examples  given,  the  first  shows  that  the  court  is 
sitting  under  commissions  of   Oyer  and  Terminer  and  gaol 
delivery  for  one  of  the  counties.  The  second,  that  the  court  is 
sitting  for  the  district  over  which  the  Central  Criminal  Court 
has  jurisdiction,  extending  over  all  Middlesex,  the  City  of 
London,  and  parts   of  several  neighbouring  counties.     The 
last,  that  the  court  is  sitting  under  commissions  of  Oyer 
and  Terminer  and  gaol  deliverj',  for  the  county  of  the  town  of 
Nottingham.  The  jurisdiction  of  the  court,  and  the  knowledge 
of  the  grand  jury  by  which  it  is  informed  are  supposed  to  be 
co-extensive.     The  Queen  sends  her  commissioners  to  learn 
what  crimes  have  been  committed  in  a  given  county.     The 
grand  jury  from  their  local   knowledge   give   the   required 
information.     It  is  true  that  the  High  Court  of  Justice  and 
the  courts  by  which  peers  are  tried  for  fekny  have  jurisdic- 
tion wherever  the  crime  may  have  been  committed,  but  their 
jurisdiction  arises  only  upon  an  indictment  found  by  a  grand 
jury  for  the  body  of  the  county,  or  upon  an  impeachment  in 
the  nature  of  an  indictment  found  by  the  House  of  Commons. 
The  Queen's  Bench  Division  of  the  High  Court  of  Justice 
might  sit  in  any  county  in  England,  or  try  at  Westminster  or 
elsewhere  offences  broughtbefore  it  by  certiorari  from  any  such 
county,  but  in  all  cases  it  would  have  to  try  indictments  found  by 
a  grand  jury  of  the  county  in  which  the  crime  was  committed. 
In  short,  the  theory  of  trial  by  the  neighbourhood  (vicineium — 
visne — venue)  has  been  inflexibly  adhered  to,  though  it  has 


HISTORY  OF   VENUE.  2/7 

been  subjected  to  many  exceptions.     It  was  originally  carried  Chvp.  IX. 
out  so  far,  that  at  common  law,  and  down  to  the  passing  in 
1548  of    the  statute  2  &  3  Edw.  6,  c.  24,  if  a  man  was 
wounded  in  one  county  and  died  in  another,  the  person  who 
gave  the  wound  was  indictable  in   neither,  "  for  that,"  to 
quote  the  preamble  of  the  statute  referred  to,  "  by  the  custom 
"  of  this  realm,  the  jurors  of  the  county  where  such  party 
"  died  of  such  stroke,  can  take  no  knowledge  of  the  said 
"  stroke,  being  in  a  foreign  county,"  .  .  .  .  "  ne  the  jurors 
"  of  the  county  where  the  stroke  was   given  cannot  take 
"  knowledge  of  the  death  in  another  county."    The  preamble 
goes  on  to  say,  "  And  also  it  is  a  common  practice  amongst 
"  ^  errant  thieves  and  robbers  in  the  realm,  that  after  they 
"  have  robbed  or  slain  in  one  county,  they  will  convey  their 
"  spoil  or  part  thereof  so  robbed  and  stolen,  unto  some  of 
"  their    adherents    into    some    other  county,"  .  .  .  .  "  who 
"  knowingly  receiveth  the  same,  in  which  case,  although  the 
"  principal  felon  be  after  attainted  in  one  county,  the  acces- 
"  sory  escapeth  by  reason  he  was  accessory  in  another  county, 
"  and  that  the  jurors  of  the  said  other  county  by  any  law 
"  yet  made  can  take  no  knowledge  of  the  principal  attainder 
"  in  the  first  county."     It  is  difficult  to  understand  how  such 
defects  as  these  should  have  been  permitted  to  continue  as 
long    as   they  did,  but  there   were  many  others,  which,  if 
rather  less    obvious,    were    quite    as   discreditable.      Thus, 
for  instance,  there  are  crimes  as  to  which  it  is  generally  im- 
possible to  prove  where  they  were  committed.    The  county  in 
which  a  man  committed  a  forgery  would  usually  be  unknown. 
It  would  generally  be  extremely  difficult   to   say  where   a 
conspiracy  was  formed,  the  existence  of  which  was  inferred 
from  acts  done  in  different  places,  and  so,  of  many  other  cases. 
^  The  result  is  that  in  a  large  number  of  statutes  by  which 
offences  are  defined,  special  provisions  are  made  as  to  the  place 
in  which  the  venue  may  be  laid.    The  only  general  interest  at- 
taching to  these  exceptions  is  that  they  prove  that  the  general 
principle  which  requires  so  many  exceptions  must  be  wrong. 
Other  inconveniences  of  the  general  doctrine  are  shown 

^  This  shows  the  meaning  of  the  expression  an  "arrant  rogue," — a  rogue 
who  wandered  about  the  country,  a  rogue,  so  to  speak,  in  eyre. 
"  Dig.  Crim.  Proc.  art.  244,  and  oh.  ix.  and  x.' 


278 


INCONVENIENCES  OF  DOCTRINE  OF  VENUE. 


Chap.  IX.  by  another  class  of  exceptions,  arising  not  from  the  nature  of 
particular  crimes,  but  from  uncertainty  as  to  the  place  where 
they  are  committed ;  such  are  crimes  committed  on  a  journey 
or  on  the  boundary  of  a  county.  These  cases  are  provided  for  • 
by  7  Geo.  4,  c.  64,  ss.  12  and  13,  under  which  a  person  charged 
with  a  crime  committed  during  a  journey  in  any  conveyance 
by  land  or  water,  may  be  indicted  in  any  county  over  which  the 
conveyance  passed  during  the  journey,  and  a  person  charged 
with  a  crime  committed  within  500  yards  of  the  boundary 
between  two  counties,  may  be  indicted  and  tried  in  either. 

In  cases  of  theft  the  law  of  venue  was  found  so  inconvenient 
that  a  doctrine  was  invented  before  the  time  of  ^  Hale,  that 
if  a  man  steals  property  and  carries  it  from  place  to  place 
he  goes  on  stealing  it  as  long  as  he  keeps  possession  of  it, 
and  so  may  be  indicted  in  any  county  into  which  he  con- 
veys it.  This  doctrine  has  been  made  the  subject  of  several 
subordinate  refinements,  which  it  is  unnecessary  to  mention. 

A  rule  which  requires  eighteen  statutory  exceptions,  and 
such  an  evasion  as  the  one  last  mentioned  in  the  case  of  theft 
— the  commonest  of  all  offences — is  obviously  indefensible.  It 
is  obvious  that  all  courts  otherwise  competent  to  try  an  offence 
should  be  competent  to  try  it  irrespectively  of  the  place  where 
it  was  committed,  the  place  of  trial  being  determined  by 
the  convenience  of  the  court,  the  witnesses,  and  the  person 
accused.  Of  course,  as  a  general  rule,  the  county  where  the 
offence  was  committed  would  be  the  most  convenient  place 
for  the  purpose.^ 

Before  leaving  this  matter  I  may  refer  to  a  few  statutes 

1  Hale,  p.  G.  507.  2  2)igr.  Qrim.  Proc.  art.  82. 

^  In  the  Draft  Code  for  1879  provision  was  made  for  obtaining  this  object  by 
section  504.  "  Jurisdiction  of  Courts. — Every  court  competent  to  try  offences 
'  triable  in  England  or  Ireland,  as  the  case  may  be,  shall  be  competent  to  try 
'  all  such  offences  wherever  committed,  if  the  accused  is  found  or  apprehended 
'  or  is  in  custody  within  the  jurisdiction  of  such  court,  or  if  he  has  been  com- 
'  mitted  for  tl-ial  to  such  court  or  ordered  to  be  ti-ied  before  such  court,  or 
'  before  any  other  court  the  jurisdiction  of  which  has  by  lawful  authority 
'  been  transferred  to  such  first-mentioned  court  under  any  act  for  the  time 
'  being  in  force  :  Provided  that  nothing  in  this  act  shall  authorise  any  court 
'  in  England  to  try  any  person  for  any  offence  committed  entirely  in  Ireland, 
'  or  any  court  in  Ireland  to  try  any  person  for  any  offence  committed  entirely 
'  in  England,  or  any  court  either  in  England  or  Ireland  to  try  any  person  for 
'  any  offence  committed  entirely  in  Scotland.  No  proceeding  before  any 
'  court  shaU  be  held  invalid  only  because  it  took  place  in  any  other  district 
'  than  the  one  in  which  the  court  ought  to  have  sat,  unless  it  is  made  to 
'  airoear  affirmatively  that  the  accused  was  actually  prejudiced  thereby." 


STATUTES  AS  TO   VENUE.  279 

by  which  the  rules  as  to  the  local  jurisdiction  of  the  ordinary^  Chap.  IX. 
courts  are  varied.  

^  Many  cities  and  towns  are  counties  in  themselves.  Most, 
but  not  all,  of  these  are  also  county  towns  in  which  the 
assizes  are  held  for  the  county  in  which  they  are  situated. 
For  instance,  York  is  a  county  in  itself,  and  is  also  the  county 
town  for  the  East  and  North  Hidings  of  Yorkshire.  Hull  is 
a  county  in  itself,  but  no  assizes  are  now  or  have  for  a  great 
length  of  time  been  held  there. 

With  regard  to  all  cities  and  towns  which  are  counties  in 
themselves  it  is  ^  enacted  (1)  that  indictments  for  offences 
committed  in  them  may  be  preferred  before  the  grand  jury 
of  the  next  adjoining  county,  and  (2)  that  indictments  found 
by  the  grand  juries  of  such  counties  of  towns  or  cities,  and 
inquisitions  found  by  the  coroners  there,  may  be  ordered  by 
the  court  having  jurisdiction  to  be  tried  in  the  next  adjacent 
county. 

Hull  being  adjacent  to  both  Yorkshire  and  Lincolnshire,  and 
Newcastle  to  both  Northumberland  and  Durham,  it  is  directed 
that  for  this  purpose  Hull  shall  be  deemed  to  be  adjacent 
to  Yorkshire,  and  Newcastle-on-Tyne  to  Northumberland. 

This  act  does  not  apply  to  London. 

It  is  further  ^  enacted,  that  when  a  person  is  committed 
for  any  offence  not  triable  at  Quarter  Sessions  to  the  gaol  of 
any  county  of  a  city  or  town  corporate  for  which  no  separate 
commission  has  been  issued  since  *  1846,  the  trial  should  be 

^  The  following  is,  I  tMnk,  a  complete  list.  The  towns  whose  names  are 
printed  in  ordinary  type  are  also  assize  towns  for  the  counties  in  which  they  are 
situated.  The  towns  whose  names  are  italicised  are  not.  Of  these  Bristol 
is  the  only  one  for  which  separate  commissions  of  Oyer  and  Terminer  and  gaol 
deliveiy  are  now  issued.  Bristol,  Canterbury,  Chester,  Coventry,  Exeter, 
Gloucester,  Lincoln,  Litchfield,  I^orwich,  Worcester,  York,  Caermarthen, 
Haverfordwest,  Hull,  Newcastle-on-Tyne,  Nottingham,  Poole,  SoutJmmpton. 
Before  the  act  referred  to  in  the  text  was  passed,  the  separate  jurisdictions  of 
counties  of  cities  was  a  great  abuse,  as  commissions  of  gaol  delivery  for  such 
counties  were  issued  only  at  long  intervals.  This  is  noticed  by  Howard  in  his 
State  of  the  Prisons  in  England  and  Wales  (fourth  edition,  1792,  p.  15).  He  says 
that  "  at  Hull  they  used  to  have  the  assize  but  once  in  seven  years.  Peacock, 
"  a  murderer,  was  in  prison  there  near  three  years  ;  before  his  trial  the  principal 
"  witness  died,  and  the  murderer  was  acquitted.  They  now  have  it  once  in 
"  three  years." 

2  38  Geo.  3,  c.  52,  sa.  2,  3,  9 ;  and  see  51  Geo.  3,  c.  100,  s.  1,  and  5  &  6 
Will.  4,  c.  76,  superseded  by  45  &  46  Vic.  c.  50,  s.  188. 

3  14  &  15  Vic.  c.  55,  s.  19. 

'  Five  years  next  before  the  passing  of  this  act,  i.e.  Aug.  1,  1851. 


2  8o  palmer's  act. 

Chap.  IX    at  the  next  adjoining  county,  as  defined  in  the  Municipal 
Corporations  Act,  1835  (5  &  6  Will.  4,  c.  76),  Schedule  C. 

The  Queen's  Bench  Division  of  the  High  Court  of  Judica- 
ture is  said  to  have  power  at  common  law  to  order  a  change 
of  venue  if  a  fair  trial  cannot  be  had  in  the  county  where 
a  crime  is  committed,  but  I  do  not  think  this  power  has  ever 
been  exercised  in  fact.  On  the  occasion  of  the  trial  of  the 
notorious  William  Palmer  for  poisoning,  an  act  (19  Vic.  c.  16, 
1856)  was  passed  enabling  the  Court  of  Queen's  Bench  to 
make  an  order  for  the  trial  of  any  indictment  at  the  Central 
Criminal  Court.  The  act  is  very  elaborate.  It  is  seldom  put 
in  force. 

In  1862  a  soldier  shot  his  officer,  I  think  at  Aldershot,  and 
various  persons  having  contended  that  the  minds  of  soldiers 
would  be  greatly  impressed  if  the  punishment  of  such  offences 
were  a  little  more  speedy,  an  act  (25  &  26  Vic.  c.  65) 
was  passed,  drawn  on  the  model  of  the  act  last  mentioned. 
It  provides  that  if  any  person  subject  to  the  Mutiny  Act 
commits  murder  or  manslaughter  on  any  other  such  person 
he  may  be  ordered  to  be  tried  at  the  next  session  of  the 
Central  Criminal  Court. 

This  is  a  singular  illustration  of  the  capricious  casual 
character  of  English  legislation.  I  never  heard  of  the 
act  being  put  in  force.  It  is  elaborate  enough  to  have  set 
the  whole  law  of  venue  on  a  rational  footing  five  times  over. 

^  The  Statement. — The  statement  sets  out  all  the  ingre- 
dients of  the  offence  with  which  the  defendant  is  charged, 
namely,  the  facts,  circumstances,  and  intent  which  constitute 
it.  These  matters  must  be  set  forth  with  certainty,  and 
without  repugnancy,  and  the  defendant  must  be  directly  and 
positively  charged  with  having  committed  the  offence.  The 
name  of  the  defendant  must  be  correctly  set  forth,  also  his 
rank  in  life  and  his  occupation  (by  the  Statute  of  Additions, 
but  it  does  not  matter  whether  they  are  or  not).  Moreover, 
the  name  of  the  party  injured,  and  if  the  offence  relates  to 
property,  the  name  of  the  owner  of  the  property  must  be 
stated  correctly,  or  if   he  is  unknown  the  fact  that  he  is 

^  See  Dig.  Grim.  Proc.  ch.  xxx.  arts.  242-253.  The  chapter  referred  to  is 
somewhat  differently  arranged  from  tlie  statement  in  the  text.  I  have  followed 
in  the  text  the  usual  arrangement. 


STATEMENT  OF  OFFENCES  IN  INDICTMENTS.  28 1 

unknown  must  be  stated.  At  common  law,  every  material  Chap.  IX. 
fact,  that  is  every  fact  which  formed  an  ingredient  in 
the  offence,  had  to  be  alleged  to  be  done  at  a  particular 
place  and  time.  This  was  called  the  "  special  venue,"  and 
was  usually  effected  by  introducing  the  words  "  then  and 
"  there  "  after  every  averment  subsequent  to  the  first,  and  in 
very  early  times  it  was  necessary  that  the  special  venue  should 
show  that  the  act  to  which  it  applied  was  done  in  the  town, 
hamlet,  or  parish,  manor,  castle,  forest,  or  other  place  whence 
the  jurors  were  to  come  who  were  to  try  the  case — a  singular 
illustration  of  the  extent  to  which  the  jurors  were  originally 
regarded  as  witnesses. 

All  the  facts  and  the  intent  constituting  the  offence  were 
also  to  be  stated  with  certainty, — that  is  to  say,  with  a 
degree  of  detail  and  specification  regulated  by  circumstances. 
^  Coke  explains  what  is  meant  by  certainty.  There  are 
three  degrees  of  certainty: — Certainty  to  a  certain  in- 
tent in  every  particular.  Where  this  is  required  the 
court  will  presume  the  negative  of  everything  which  the 
pleader  has  not  expressly  afSrmed,  and  the  affirmative  of  every- 
thing which  he  has  not  expressly  negatived.  In  other  words 
the  pleader  must  expressly  exclude  every  conclusion  against 
him.  The  lowest  degree  of  certainty  is  certainty  to  a  common 
intent,  and  where  this  is  required  the  court  will  presume  in 
favour  of  the  pleader  every  proposition  which  by  reasonable 
intendment  {i.e.  according  to  the  common  use  of  language) 
is  impliedly  included  in  the  pleading,  though  not  expressed. 

Between  these  there  is  a  third  degree  of  certainty,  called 
"  certainty  to  a  certain  intent'  in  general,"  which  cannot  be 
otherwise  described  than  by  saying  that  it  does  not  require 
quite  so  much  explicit  statement  as  certainty  to  a  certain 
intent  in  every  particular,  and  that  it  requires  more  than 
certainty  to  a  common  intent.  It  is  this  middling  kind  of 
certainty  mat  is  required  in  indictments.  It  is  said  that, 
where  it  is  required,  everything  which  the  pleader  should 
have  stated,  and  which  is  not  either  expressly  alleged  or  by 

'  Co.  Litt.  303a,  and  see  Long's  case,  5  Eep.  121a.  The  explanation  or 
expansion  of  Coke's  language  is  given  in  Archbold,  57.  Dig.  Grim.  Proc. 
arts.  242,  243.) 


282 


EULES  OF  PLEADING — FORMAL   CONCLUSION. 


Chap.  IX.  necessary  implication  included  in  what  is  alleged,  must  be 
presumed  against  him.  Words,  however,  are  in  this  case 
construed  rather  less  artificially  and  technically  than  in  the 
case  of  certainty  to  a  certain  intent  in  every  particular. 

As  an  illustration,  written  instruments  had  to  be  set  out 
verbatim,  and  chattels  had  to  be  described  correctly.  If  a. 
man  were  charged  with  stealing  a  sheep,  that  would  be  held 
to  mean  a  living  sheep  and  not  the  dead  body  of  a  sheep. 
A  boot  must  not  be  called  a  shoe,  and  money  originally 
had  to  be  described  as  so  many  pieces  of  the  current  gold  or 
silver  or  copper  coin  of  the  realm  called  sovereigns,  shillings, 
or  pence,  as  the  case  might  be. 

There  are  besides  certain  technical  words  which  must  be 
used  in  charging  certain  crimes.  The  words  "  murder," 
"ravish,"  "steal,  take,  and  carry  away,"  or,  in  the  case  of 
cattle,  "  drive  or  lead  away,"  and  "burglariously"  cannot  be 
replaced  by  any  equivalents. 

There  are  some  other  rules  as  to  the  drawing  of  indictments, 
of  which  I  need  only  mention  one.  Indictments  must  not  be 
double.  No  one  count  ought  to  charge  more  than  one  offence. 

The  Conclusion. — Formerly  the  rule  was  that  the  in- 
dictment must  conclude,  if  it  was  for  an  offence  at  common 
law,  with  the  words  "against  the  peace  of  our  Lady  the 
"  Queen,"  to  which  are  always  added,  in  fact,  though  they 
are  not  essential,  "  her  crown  and  her  dignity."  If  the 
offence  was  by  statute  the  proper  ending  was  "against  the 
form  of  the  statute  (or  statutes)  in  that  case  made  or  provided." 
When  indictments  were  in  Latin  the  form  used  always  was- 
"  contra  formam  statut',"  and  it  was  held  that  "  statut' " 
would  do  equally  well  whether  it  ^  ought  to  have  been 
"  statuti "  or  "  statutorum."  After  the  4  Geo.  2,  c.  26  (1730), 
which  required  indictments  to  be  in  English,  this  convenient 
ambiguity  became  unlawful,  and  it  was  necessary  to  say  either 
"  the  statute "  or  "  the  statutes."  At  last  it  was  enacted 
(14  &  15  Vic.  c.  100,  s.   24)  that  no  objection  should  be 

1  This  act  camp  into  force  in  1733.  It  was  repealed  by  42  &  43  Vic.  c.  59, 
schedule  1,  but  it  has  not  been  contended  that  the  common  law  has  revived, 
though  none  of  the  words  in  s.  4  (4)  seems  to  meet  the  case  quite  plainly. 
I  suppose,  however,  that  the  rule  that  indictments  must  be  ia  Latin  would  in 
case  of  need  be  held  to  be  an  "  usage,"  "  practice,"  or  "procedure." 


VAEIANCES.  283 

taken  on   the   ground   that  it  ought  to   have   been   either  Chap.ix. 
"  statute  "  instead  of  "  statutes,"  or  "  statutes  "  instead  of      ~~ 
"  statute. '     Indeed  it  is  now  unnecessary  to  have  "  a  proper 
"  and  formal  conclusion"  at  all. 

These  were,  and  to  some  extent  still  are,  the  leading 
requisites  as  to  the  contents  of  an  indictment.  In  order  to 
appreciate  the  matter  fully  it  must  be  remembered  that, 
subject  to  some  ^  few  exceptions,  it  is  necessary  to  prove  the 
averments  of  an  indictment  as  they  are  laid,  so  that  if  a  man  is 
indicted  for  the  murder  of  John  Smith,  and  is  proved  to  have 
murdered  James  Smith,  this  is  a  fatal  "variance,"  and  he  is 
entitled  to  be  acquitted,  unless  the  defect  is  amended,  though 
he  might  afterwards  be  indicted  again  for  the  murder  of  James. 
The  effect  of  the  two  rules  that  an  indictment  must  contain 
certain  averments,  and  that  each  averment  must  be  proved  as 
laid,  was,  before  late  alterations,  to  introduce  into  the  adminis- 
tration of  justice  ah  element  of  arbitrary  uncertainty  not 
unlike  that  which  the  Roman  augurs  introduced  into  Roman 
public  affairs  by  their  supposed  knowledge  of  the  omens. 
To  give  one  instance  where  a  thousand  might  be  given.  ^  A 
man  who  had  from  mere  wantonness  stabbed  a  lady  whom 
he  met  in  St.  James'  Street,  was  indicted  under  a  statute  of 
George  I.  (6  Geo.  1,  c.  23,  s.  11),  for  "  maliciously  assaulting 
her  with  intent  to  cut  her  clothes,"  which  was  then  a  capital 
felony.  The  indictment  stated  that  on  the  18th  January,  1790, 
at,  &c.,  Williams  assaulted  Ann  Porter  with  intent  to  cut  her 
clothes,  and  that  "Williams  on  the  said  18th  January,  1790, 
at,  &c.,  did  [then  and  there  was  here  omitted]  cut  the  clothes 
of  the  said  Ann  Porter,  to  wit,  a  silk  gown  and  a  pair  of  stays, 
and  a  silk  petticoat  and  a  linen  petticoat,  and  a  linen  shift. 
It  was  objected  that  it  did  not  appear  from  this  that  the  assault 

^  It  was  never  necessary  to  prove  the  special  venue  as  laid,  but  it  was  enough 
if  the  fact  stated  was  shown  to  have  happened  within  the  jurisdiction  of  the 
coui't.  For  instance,  in  an  indictment  against  an  Indian  official  for  receiving 
presents,  a  fact  which  happened  at,  say,  Madras,  had  to  be  alleged  to  have 
happened  to  wit,  at  Bow,  in  the  County  of  Middlesex,  but  inasmuch 
as  the  court  had  by  statute  jurisdiction  over  acts  done  at  Madras  it  was 
sufficient  to  prove  that  the  offence  really  did  happen  at  Madras  and  not  at  Bow. 

2  "Williams's  case,  1  Leach,  529  (a.d.  1790).  The  picturesque  part  of  the 
story  is  to  found  in  the  Newgctte  Calendar,  iii.  161,  which  contains  an  account 
of  "  Renwick  Williams,  commonly  called  the  Monster."  His  peculiar  title 
to  infamy  was  his  taste  for  stabbing  in  various  places  women  whom  he  did  not 
know. 


284 


FLAWS   IN   INDICTMENTS. 


Chap.  tx.  and  the  cutting  the  clothes  were  all  one  act,  and  that  as  far 
as  the  indictment  went  the  assault  might  have  been  in  the 
morning  and  the  cutting  of  the  clothes  in  the  evening,  which 
flaw  would  have  been  avoided  by  inserting  the  words  "  then 
and  there,"  between  "  did  "  and  "  cut,"  and  this  objection  was 
held  to  be  fatal. 

I  do  not  think  that  anything  has  tended  more  strongly 
to  bring  the  law  into  discredit  than  the  importance  attached 
to  such  technicalities  as  these.  As  far  as  they  went  their 
tendency  was  to  make  the  administration  of  justice  a  solemn 
farce.  Such  scandals  do  not  seem,  however,  to  have  been 
unpopular.  Indeed,  I  have  some  doubt  whether  they  were  not 
popular,  as  they  did  mitigate,'though  in  an  irrational,  capricious 
manner,  the  excessive  severity  of  the  old  criminal  law. 

There  was  a  strange  alternation  in  the  provisions  of 
the  law  upon  this  subject,  by  which  irrational  advantages 
were  given  alternately  to  the  Crown  and  to  the  prisoner. 
In  favour  of  the  prisoner  it  was  provided  that  the  most 
trumpery  failure  to  fulfil  the  requirements  of  an  irrational 
system  should  be  sufficient  to  secure  him  practical  impunity 
for  his  crime.'  On  the  other  hand,  in  favour  of  the  Crown,  it 
was  provided  that  the  prisoner  should  not  be  entitled  to  a  copy 
of  the  indictment  in  cases  of  felony,  but  only  to  have  it  read 
over  to  him  slowly,  when  he  was  put  up  to  plead,  a  rule  which 
made  it  exceedingly  difficult  for  him  to  take  advantage  of  any 
defect.  But  then  again,  any  person  might  point  out  such  a  flaw, 
and  it  was  in  a  sort  of  way  the  duty  of  the  judge  as  counsel 
for  the  prisoner  to  do  so.  On  the  other  hand,  some  flaws  were, 
and  others  were  not,  waived,  by  pleading  to  the  indictment. 

In  short,  it  is' scarcely  a  parody  to  say,  that  from  the  earliest 
times  to  our  own  days,  the  law  relating  to  indictments  was 
much  as  if  some  small  proportion  of  the  prisoners  convicted 
had  been  allowed  to  toss  up  for  their  liberty. 

In  practice  this  system  is  to  a  great  extent  a  thing  of  the 
past.  Legally  it  is  still  in  full  force  except  so  far  as  it  has 
been  relaxed  by  a  few  specific  sections  of  acts  of  parliament. 

'  I  say  practical  impunity  because  the  chance  of  his  being  indicted  a  second 
time  and  of  the  prosecution  being  able  to  prove  that  the  flaw  in  the  first  in- 
dictment \¥as  such  that  he  had  never  been  legally  in  peril,  and  so  could  not 
plead  autrefois  acquit,  wa.s  not  great. 


ACTS  OF  1828  AND  1851.  285 

The  following  are  the  practically  important  sections  : —         Chap.  IX 

By    7    Geo.  4,   c.  64  (1826),  ss.    14—18  inclusive,  it  is       

enacted  that  the  property  of  a  number  of  articles  (as  to 
which  it  is  difficult  to  say  to  whom  they  belong),  may  in  any 
indictment  be  laid  in  particular  persons,  e.g.  the  property  in 
things  provided  for  the  repair  of  a  county  bridge,  may  by 
s.  15  be  laid  in  the  inhabitants  of  the  county,  and  none  of 
them  need  be  named.  These  provisions  have  saved  a  great 
deal  of  petty  trouble. 

By  s.  19  misnomers  and  wrong,  additions,  or  the  want 
of  an  addition,  are  rendered  practically  unimportant. 

By  9  Geo.  4,  c.  15  (1828),  variances  between  allegations 
in  indictments  as  to  the  contents  of  documents  written  or 
printed,  and  the  documents  proved  on  the  trial,  may  be 
amended  in  cases  of  misdemeanour,  and  are  therefore 
rendered  unimportant.  This  is  extended  to  felonies  by 
11  &  12  Vic.  c.  46,  s.  4  (1848).  The  acts  applied  only  to 
the  superior  courts,  and  their  provisions  were  extended  to 
the  Courts  of  Quarter  Sessions  in  1849,  by  12  &  13  Vic. 
c.  45,  s.  10. 

In  1851  an  act  was  passed  which  went  further  in  the  way 
of  removing  technicalities,  but  it  did  so  by  an  enumeration 
of  them,  so  technical  and  minute,  that  no  one  could  pos- 
sibly understand  it  who  had  not  first  acquainted  himself  with  all 
the  technicalities  which  it  was  meant  to  abolish.  This  is  14  & 
15  Vic.  c.  100.  Section  1  enables  the  court  to  amend  many 
specified  variances  between  the  indictment  and  the  evidence, 
and  especially  all  variances  in  the  descriptions  of  either 
persons  or  things,  and  in  the  ownership  of  property.  The 
effect  of  this  is,  that  if  a  man  is  indicted  for  stealing  a  sheep 
the  property  of  James  Smith,  and  is  proved  to  have  stolen  a 
lamb  the  property  of  John  Smith,  the  court  may  amend  the 
indictment  if  it  thinks  it  not  material,  i.e.  if  it  thinks  that 
the  prisoner  has  not  been  misled.  This  has  practically 
relaxed  very  greatly  the  rule  about  "certainty  to  a  certain 
"  intent  in  general,"  already  referred  to. 

By  ss.  5  and  18  it  was  provided  that  documents  might  be 
described  by  their  common  names  without  setting  out  copies, 
and  that  bank-notes  might  be  described  as  money,  and  it  was 


286  EESULT   OF  AMENDING  ACTS. 

Chap.  IX.  provided  that  it  should  be  uo  variance  to  prove  a  theft,  &c.,  of 
coin  in  an  indictment  for  stealing,  &c.,  a  bank-note.  Bys.  23 
special  venues  were  abolished.  By  s.  24  it  was  provided  that 
indictments  were  not  to  be  held  bad  for  the  want  of  any  one 
of  fifteen  specified  formal  phrases  such  as  "  as  appears  by  the  - 
record,"  "with  force  and  arms,"  "against  the  peace,"  &c. 
Some  of  these  are  noticeable  as  matter  of  curiosity.  For 
instance,  the  want  of  "  the  averment  of  any  matter  unneces- 
"  sary  to  be  proved,"  was  in  effect  declared  to  be  no  longer  a 
defect.  This  did  away  with  the  statements  that  the  crime 
was  committed  by  a  person  "  not  having  the  fear  of  God 
"before  his  eyes,"  and  "at  the  special  instigation  of  the 
"  devil."  By  s.  25  it  was  provided  that  every  objection  in 
respect  of  any  formal  defect  patent  on  the  face  of  the  indict- 
ment must  be  taken  before  plea,  and  the  court  was  empowered 
to  amend  any  such  defect.  The  result  of  this  was  to  make 
such  defects  unimportant,  as  they  can  now  be  noticed  only 
imder  such  circumstances  that  they  can  be  at  once  amended. 
'  The  effect  of  these  complicated  and  narrowly  guarded 
amendments  was  to  leave  the  greater  part  of  the  law  relating 
to  indictments  in  a  blurred  half-defaced  condition,  like  a  slate 
the  greater  part  of  the  writing  on  which  has  been  half  rubbed 
out.  They  added  greatly  in  one  sense  to  the  intricacy  of  the 
law,  for  nothing  can  be  more  intricate  than  a  system  of 
unwritten  rules  qualified  by  numerous  written  exceptions. 
For  instance,  it  was  formerly  enough  to  know  what  was 
meant  by  a  special  venue.  Now,  if  the  law  is  to  be  fuUy 
understood,  you  must  both  know  what  a  special  venue  was, 
and  what  effect  was  produced  by  its  abolition.  It  was  once 
enough  to  know  what  is  meant  by  certainty  to  a  certain 
intent  in  general,  and  to  know  that  it  is  required  in  all  thp 
averments  in  an  indictment,  but  to  this  there  ought  now  to 
be  added  a  knowledge  of  the  many  exceptions  to  that  rule 
introduced  by  statute.  Practically  no  one  takes  the  trouble 
to  learn  the  law  so  elaborately.  A  general  impression  has 
been  produced  that  quibbles  about  indictments  have  come  to 

^  Dig.  Grwi.  Froc.  ah.  xxz.  gives  as  accurate  a  statement  of  this  as  I  could 
make.  See  especially  the  rule  as  to  certainty,  art.  242,  the  exceptions,  art. 
243.  The  rules  and  exceptions  as  to  descriptions  in  art.  246,  as  to  ownership, 
art.  249,  as  to  powers  to  amend,  art.  250. 


INDICTMENTS   FOR  MUEDEE. 


>S7 


an  end.     It  has  ceased  to  be  the  fashion  to  make  them,  and  if  Chap.  IX 
they  are  made  they  do  not   succeed.      This  is  practically 
-convenient,  but,  on  the  other  hand,  it  is  a  very  slovenly  state 
■of  things. 

Besides  the  provisions  to  which  I  have  referred,  a  certain 
number  of  special  provisions  have  been  made  as  to  indict- 
ments for  particular  offences.  Thus,  it  was  formerly  necessary 
upon  an  indictment  for  murder,  to  set  out  in  minute  detail 
all  the  circumstances  of  the  crime,  and  it  was  usual  to  vary 
the  details  in  different  counts,  so  as  to  meet  possible  variations 
in  the  proof.  Thus,  in  one  count  it  would  be  stated  that  A 
made  an  assault  upon  B  with  a  knife  which  A  held  in  his 
right  hand,  and  gave  B  one  mortal  wound  in  the  breast,  of 
•such  a  length  and  depth,  of  which  B  languished  for  so  many 
^ays,  "  and  languishing  did  live,"  and  on  such  a  day  did  die. 
Another  count  would  vary  this  by  alleging  that  the  knife  was 
held  in  the  left  hand.  A  third,  that  it  was  held  in  the  hand 
without  saying  either  right  or  left,  and  so  on.  These 
variations  extended  the  indictment  to  an  enormous  length, 
and  made  it  ^grotesque  beyond  belief  By  24  &  25  Vic. 
c.  100,  s.  6,  re-enacting  an  earlier  act,  it  was  enacted  that  it 
should  be  sufficient  in  indictments  for  murder  to  charge 
generally  that  the  defendant  did  feloniously,  wilfully,  and  of 
his  malice  aforethought,  kill  and  murder  the  deceased. 

So  in  indictments  for  forgery,  it  used  to  be  necessary  not 
only  to  allege  an  intent  to  defraud,  but  to  specify  the  person 
intended  to  be  defrauded.  This  was  often  a  matter  of  great 
difficulty,  and  numerous  counts  were  introduced,  each  of 
which  specified  a  different  person  as  having  be^n  intended 
to  be  defrauded.  Now  by  24  &  25  Vic.  c.  98,  s.  44,  it  is 
-enough  to  allege  in  general  terms  an  intent  to  defraud.  It 
would  be  foreign  tq  my  purpose,  however,  to  enumerate  every 
statutory  provision  of  this  sort.     It  is  enough  to  say,  that 

1  I  have  been  informed  that  in  the  case  of  Daniel  Good,  who  murdered  a 
maidservant  at  Eoehampton  and  burnt  her  body  afterwards  so  as  to  leave  the 
precise  manner  in  which  the  crime  was  committed  uncertain,  the  indictment 
•contained  nearly  seventy  counts,  the  last  aveiying  (which  was  no  doubt  true) 
that  the  woman  was  murdered  by  means  to  the  said  jurors  unknown.  It  must 
be  remembered  in  reference  to  this  that  the  clerks  of  assize  and  other  officers 
who  drew  indictments  were  paid  by  fees,  and  that  each  count  in  an  indictment 
-was  charged  for  separately. 


2  88  INDICTMENTS  FOR  PEEJUEf. 

Chap.  IX.  though  a  good  many  convenient  exceptions  to  the  old  rigour 
of  the  law  have  been  made,  enough  of  it  still  remains  to 
make  criminal  pleading  intricate  and  technical  to  the  last 
degree.     I  will  give  a  few  illustrations  of  this. 

The  rule  of  pleading  which  requires  all  the  elements  of  a 
crime  to  be  set  out  in  an  indictment,  still  in  full  force,  in 
cases  in  which  no  statutory  exception  applies,  causes  extreme 
intricacy  and  elaboration  in  indictments.  For  instance,  an 
indictment  for  perjury  must  set  forth  the  following  matters  : 
First,  the  jurisdiction  of  a  competent  tribunal.  Secondly,  the 
taking  by  the  defendant  of  an  oath  duly  administered. 
Thirdly,  that  the  truth  of  the  matter  deposed  to  became 
and  was  a  question  material  to  the  decision  of  the  matter 
before  the  court.  Fourthly,  that  the  defendant  swore  such 
and  such  matters  relating  to  it  (these  averments  are  called 
assignments  of  perjury).  Fifthly,  that  each  matter  assigned 
as  perjury  is  false  in  fact.  To  give  a  copy  of  such  an  indict- 
ment would  be  tedious,  but  the  following  is  a  much  abridged 
skeleton  of  one. 

The  jurors  for  our  Lady  the  Queen  present  that  at  Q-  to  put 
it  shortly)  the  assizes  held  on  the  20th  July,  1880,  at  York, 
before  such  a  judge,  B  was  indicted  for  the  murder  of  C, 
which  indictment  came  on  to  be  tried  before  a  jury  duly 
sworn,  and  upon  the  trial  thereof  A  "  took  his  corporal  oath 
"  on  the  Holy  Gospel  of  God,"  that  the  evidence  which  he 
should  give  should  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  and  upon  the  trial  it  became  a 
material  question  whether  at  mid-day,  on  the  1st  March, 
1880,  A  saw  B  at  Westminster  Hall,  in  the  City  of 
Westminster,  and  A  "  falsely,  corruptly,  knowingly,  wilfully, 
"and  maliciously"  swore  that  he  did  see  B  at' mid-day,  on 
the  1st  March,  1880,  at  Westminster  Hall,  in  the  City  of 
Westminster,  whereas  in  truth  and  in  fact,  A  did  not  see  B 
at  mid-day,  or  at  any  other  hour  on  the  said  first  day  of 
March,  1880,  at  Westminster  Hall,  aforesaid,  "  and  so  the 
"  jurors  aforesaid,  upon  their  oath  aforesaid,  say  that  the  said 
"  A,  on  the  said  20th  July,  1880,  before  the  said  Sir  E.  F., 

'  A  number  of  particulars  as  to  tlie  commiasion  under  wliicli  the  court  sits 
would  in  practice  be  set  forth. 


INDICTMENT   FOR  FALSE  PRETENCES.  289 

"  SO  being  such  judge  as  aforesaid,  by  his  own  act  and  consent,  Chap.  ix. 
"  and  of  his  own  most  wicked  and  corrupt  mind,  in  manner 
"  and  form  aforesaid,  falsely,  wickedly,  wilfully,  and  corruptly, 
"  did  commit  wilful  and  corrupt  perjury  against  the  peace  of 
"  our  Lady  the  Queen,  her  crown,  and  her  dignity." 

This  form  tells  one  story  three  times  over,  namely,  once  in 
averring  materiality,  again  in  assigning  perjury,  and  for  a 
third  time,  in  negativing  the  truth  of  the  assignments  of 
perjury.  It  adds  nothing  to  what  any  one  would  learn  from 
the  following  statement : — "  The  jurors  for  our  Lady  the 
"  Queen  present,  that  at  the  assizes  held  at  York,  before  such  a 
"  judge,  on  such  a  day,  B  was  indicted  for  the  murder  of  C, 
"  and  that  A  upon  the  trial  of  that  indictment  committed 
"  peijury  by  swearing  that  he  saw  B,  at  mid-day,  on  the 
"  1st  March,  1880,  at  Westminster  Hall,  in  the  City  of  West- 
"  minster,  which  statement  was  material  to  the  indictment 
"  under  trial,  and  was  false  to  the  knowledge  of  A." 

An  indictment  for  false  pretences  is  also  an  intricate 
matter,  as  the  nature  of  the  pretence  must  be  set  out  and 
its  falsehood  averred  in  such  a  way  as  to  repeat  the  story 
twice  :  thus,  "  A  did  falsely  pretend  to  B  that  A  had  been 
"  sent  to  B  by  0  for  £5  which  C  wanted  to  borrow  of  B,  by 
"  means  of  which  said  false  pretence  A  did  obtain  from  B 
"  £5,  whereas  in  truth  and  in  fact  A  was  not  sent  to  B  by  C 
"  for  £5  which  C  wanted  to  borrow  of  B  or  for  any  other  sum 
"  of  money  whatever."  Moreover,  the  rule  that  averments 
must  be  proved  as  laid  makes  it  necessary  to  vary  the 
description  of  the  false  pretence  in  a  variety  of  ways,  so 
that  one  at  least  may  correspond  with  the  evidence.  The 
operation  of  these  rules  frequently  swells  indictments  for 
obtaining  goods  by  false  pretences  to  a  length  at  once 
inconvenient  and  absurd. 

Perjury  and  false  pretences  afford  perhaps  the  commonest 
illustrations  of  the  bad  effects  produced  by  the  rules  of 
special  pleading  still  in  force  as  regards  indictments,  but 
there  is  another  rule  which  has  never  been  made  the  subject 
of  any  statutory  qualification,  and  which  is  the  cause  of  much 
greater  prolixity,  obscurity,  and  expense.  This  is  the  rule 
that  indictments  must  not  be  "  double."     That  is  that  each 

VOL.  I.  V 


290  INDICTMENTS   NOT   TO   BE   DOUBLE. 

Chap.  IX.  count  must  charge  one  offence  and  no  more.  A  policeman 
tries  iio  apprehend  a  burglar  who  fires  a  pistol  in  his  face  and 
gives  him  a  serious  wound  in  the  mouth,  knocking  out  a 
front  tooth.  This  act  is  an  offence  under  24  &  25  Vic.  c. 
100,  s.  18,  and  might,  though  in  practice  it  would  not,  be 
made  the  subject  of  the  following  counts : — 

(1)  Wounding  with  intent  to  maim. 

(2)  Wounding  with  intent  to  disfigure. 

(3)  Wounding  with  intent  to  disable. 

(4)  Wounding  with  intent  to  do  some  grievous  bodily 
harm  other  than  those  above  specified. 

(5)  Wounding  with  intent  to  resist  lawful  apprehension. 

(6)  Woutiding  with  intent  to  prevent  lawful  apprehension. 

(7)  Wounding  with  intent  to  resist  lawful  detainer. 

(8)  Wounding  with  intent  to  prevent  lawful  detainer. 

(9 — 16  inclusive)  Causing  grievous  bodily  harm  with  each 
of  the  eight  intents  before  stated. 

(17 — 24  inclusive)  Shooting  at  the  policeman  with  each  of 
the  eight  intents  before  mentioned. 

Another  count  might  be  added  under  s.  14  for  shooting 
with  intent  to  murder,  and  another  under  s.  15  for  attempting 
to  murder  otherwise  than  in  the  five  ways  specified  in  s.  14. 
These  would  make  in  all  twenty-six  different  counts  for  a 
single  act. 

This  is  an  illustration  of  the  principal  cause  of  the  enor- 
mous length  and  intricacy  of  indictments.  Indictments  for 
fraudulent  misdemeanours  sometimes  consist  of  more  than  a 
hundred  counts,  differing  from  each  other  almost  imperceptibly 
by  minute  shades  of  meaning  and  expression.  No  one  ever 
reads  them  except  the  clerk  who  compares  the  draft  with 
the  engrossed  copy.  The  draftsman  draws  one  count  as  a 
pattern  of  the  class,  and  directs  the  counts  to  be  varied  by  a 
short  note  such  as  I  have  given.  The  judge  never  looks  at 
the  indictment  unless  his  attention  is  directed  to  some 
particular  point.  The  counsel  look  at  abstracts  like  the  one 
just  given,  which  ^  show  the  sense  of  the  indictment.     No 

'  I  have  heard  of  a  very  eminent  special  pleader  who,  when  he  had  drawn  a 
.specially  long  indictment,  used  to  "  shuffle  his  counts,"  so  that  his  opponent 
might  find  it,  humanly  speaking,  impossible  to  understand  what  the  in- 
dictment did  and  did  not  contain.     The  short  illustration  I  have  given  will 


JOINDER  OF  COUNTS.  29 1 

undefended  prisoner  would  get  the  least  information  from  it,   Chap.  ix. 
and  the  document  is  of  infinitely  less  use  as  a  record  of  the 
transaction  than  a  short  and  simple  one  would  be. 

To  complete  the  specification  of  the  causes  why  indict- 
ments are  still  intricate  and  technical  documents,  notwith- 
standing such  efforts  as  have  been  made  at  their  improve- 
ment, I  must  mention  the  ^rule  as  to  what  is  called  the 
joinder  of  counts,  that  is  as  to  including  more  charges  than 
one  in  the  same  indictment.  The  rule  is  that  you  may 
theoretically  join  in  the  same  indicttnent  any  number  of 
counts  for  felony,  and  any  number  of  counts  for  misde- 
meanour. But  a  count  for  a  felony  can  in  no  case  be  joined 
with  a  count  for  a  misdemeanour.  One  reason  of  this 
rule  was  that  when  felonies  were  in  almost  every  case 
punishable  by  death  it  would  have  been  absurd  to  join  a 
charge  which  if  established  would  involve  capital  punish- 
ment with  a  charge  which  would  at  most  involve  fine 
and  imprisonment.  Another  reason  is  that  the  incidents  of 
trials  for  felony  and  misdemeanour  differ.  It  would  be 
obviously  inconvenient,  if  not  impracticable,  to  indict  a  man 
for  two  offences  for  one  of  which  he  might  challenge  twenty 
jurors  peremptorily,  whilst  he  had  no  right  to  challenge  on 
the  other.  There  is,  however,  a  further  distinction.  The 
right  to  charge  any  number  of  felonies  in  the  same  indict- 
ment is  subject  to  the  ^  doctrine  of  election — a  doctrine  intro- 
duced simply  by  the  practice  of  the  courts.  This  doctrine 
is  that  if  it  should  appear,  either  upon  the  face  of  an  in- 
dictment or  when  the  evidence  is  given,  that  the  different 
counts  in  an  indictment  for  felony  relate  to  more  transac- ' 
tions,  than  one,  and  are  not  different  ways  of  describing  the 
same  transaction,  the  court  will  compel  the  prosecutor  to 
confine  his  evidence  to  one  of  the  transactions.  No  such 
rule  applies  to  misdemeanours.  The  result  of  this  is  that 
counts  charging  any  number  of  misdemeanours  each  charged 
in  any  number  of  different  ways  may  be  included  in  a  single 

show  how  confusing  this  would  he.  If,  for  instance,  counts  charging  wound- 
ing with  various  intents,  were  mixed  up  just  as  it  happened  with  counts 
charging  causing  grievous  bodily  harm  and  counts  charging  shooting,  the 
patience  of  most  men  would  break  down  before  they  had  ascertained  precisely 
what  the  indictment  charged. 

i  Dig.  Crim.  Proe.  arts.  236-241.  ^  Ih.  art.  240. 

U   2 


292  PROPOSED  ALTERATIONS  IN  LAW. 

Chap.  IX.  indictment,  and  this  is  the  cause  of  the  enormous  prolixity 
of  indictments  for  mercantile  frauds  and  of  the  trials  which 
ensue  upon  them.  I  have  known  cases  in  which  indictments 
on  the  Fraudulent  Debtors'  Act  have  charged  each  of  ten  or 
twelve  acts  in-ieach  of  ten  or  twelve  ways. 

The  defects  of  this  system  need  no  remark,  and  a,s  to  the 
manner  in  which  they  might  be  removed,  it  will  be  enough 
to  refer  to  the  Draft  Code;  prepared  in  1878-9  by  the  Criminal 
Code  Commissioners.  An  account  of  this  and  of  some 
other  proposals  ol  theirs  for  the  simplification  of  criminal 
procedure  will  be  found  ^  below. 

An  information,  differs  from  an  indictment,  so  far  as  the 
rules  of  pleading  are  concerned,  only  in  the  circumstance  that 
it  is  a  formal  statement  made  by  the  Attorney- General  that 
the  defendant  is  guilty  of  a  misdemeanour  instead  of  being 
a  formal  statement  upon  oath  by  a  grand  jury  that  the 
person  accused  is  guilty  of  felony  or  misdemeanour. 

^  If  a  person  is  indicted  when  he  is  not  in  custody  a  cer- 
tificate of  the  indictment  may  be  procured  by  the  prosecutor 
from  the  officer  of  the  court  before  which  the  indictment  is 
found,  and  upon  the  production  of  the  certificate  to  a  magis- 
trate a  warrant  for  the  apprehension  of  the  person  accused 
must  be  issued,  and  upon  his  identification  the  person  accused 
must  be  committed  for  trial.  If  he  cannot  be  apprehended 
he  may  (in  theory)  be  ^  outlawed,  which  in  cases  of  treason 
and  felony  has  the  effect  of  a  conviction.  Outlawry,  how- 
ever, has  gone  completely  out  of  use.  The  principal  import- 
ance of  it  was  that  it  involved,  as  indeed  *  it  still  involves, 
forfeiture,  but  forfeitures  have  not  in  practice  been  exacted 
(except  in  very  exceptional  cases)  in  modern  times,  and  for 
other  purposes  outlawry  is  useless.  The  effect  of  extradition 
treaties  is  that  a  criminal  can  be  arrested  for  most  of  the 
graver  offences  in  almost  any  part  of  the  world,  and  if  a  man 
is  driven  from  his  native  country  and  cannot  be  found 
elsewhere  there  is  no  use  in  obtaining  a  formal  conviction 
against  him. 

Notwithstanding  aU   the  pedantry  and   technicalities  by 

'  Pp.  511-513.  2  D^g   Crwn.  Froc.  arts.  193-194. 

'  lb.  art.  233.  ^  33  &  34  Vie.  0.  23,  s.  1. 


MERIT   OF  OLD  SYSTEM  OF  INDICTMENTS.  293 

which  the  law  relating  to  indictments  was  disfigured,  it  ought  Chap.  ix. 
to  be  said  that  they  had  at  least  one  valuable  feature.  The 
rule  that  the  indictment  must  set  out  all  the  elements  of  the 
offence  charged,  was  some  sort  of  security  against  the  arbi- 
trary multiplication  of  offences  and>  extension  of  the  criminal 
law  by  judicial  legislation  in  times  when  there  were  no 
definitions  of  crimes  establish-ed  by  statute,  or.  indeed  by  any 
generally  recognised  authority.  If,*  for  instance,  it  had  been 
lawful  to  indict  a  man  in  general  terms,  say  for  high  treason, 
and  if  the  judges  had  had  to  say  what  constituted  high  treason, 
the  law  might  have  been  stretched  to  almost  any  extent.  The 
necessity  for  setting  forth  that  the  prisoner  imagined  the 
death  of  the  king,  and  manifested  such  imagination  by  such  and 
such  overt  acts,  was  a  considerable  security  against  such  an 
extension  of  the  law,  though,  as  the  history  of  the  crime  of 
treason  will  show,  it  was  not  a  >  cornplete  one.  The  same 
principle  was  illustrated  by  indictments  for  libel  in  the  latter 
part  of  the  last  century,  and^«ven  in  our  own  days  instances 
may  be  found  in  indictments  for  conspiracy  in  which  laxity 
of  pleading  might  have  had  serious  consequences  to  the 
accused.  The  fact  is  .that  looseness  in  the  legal  definitions 
of  crimes  can  be  met  only  by  strictness  and  technicality  in 
indictments,  and  that  indictments  may  be  reduced  with 
safety  to  perfect  simplicity  as  soon  as  the  law  has  either  been 
codified  or  reduced  to  certainty  by  authoritative  writings 
which  practically  supply  the'place  of  a  code. 

In  concluding  the  subject  of  indictments  and  informations, 
I  must  say  something  of  the  right  to  prefer  them.  Indict- 
ments, as  I  have  already  shown,  are,  properly  speaking, 
accusations  made  by  the  grand  jury,  who  are  called  together 
to  acquaint  the  court  before  which  they  are  assembled  with 
the  crimes  committed  in  their  district.  Any  one,  however, 
may  appear  before  them  with  a  bill  or  draft  indictment  and 
witnesses  to  prove  its  truth.  Theoretically,  or  at  least  accord- 
ing to  the  earliest  theory  upon  the  subject,  the  court  does 
not  look  beyond  the  grand  jury.  The  result  is  that  in  this 
country  any  one  and  every  one  may  accuse  any  one  else, 
behind  his  back  and  without  giving  him  notice  of  his  inten- 
tion to  do  so,  of  almost  any  crime  whatever.     Till  very  lately 


294  MALICIOUS  INDICTMENTS  ACTS. 

Chap.  IX.  the  word  "  almost "  ought  to  have  been  omitted,  but  in  1859 
one  of  those  small  reforms  was  made  which  are  characteristic  of 
English  legislation.  In  that  year  it  was  provided  by  ■^  22  &  23 
Vic.  c.  17,  that  no  persoii  should  indict  another  for  perjury,  sub- 
ornation of  perjury,  conspiracy,  obtaining  money  by  false  pre- 
tences, keeping  a  gambling  house,  keeping  a  disorderly  house, 
or  any  indecent  assault,  unless  he  is  permitted  to  do  so  by  a 
judge  or  the  Attorney  or  Solicitor.  General,  or  unless  he  is  bound 
over  to  prosecute  by  a  magistrate.  These  provisions  were 
extended  to  libels  by  44  &  45  Vic.  c.  60,  s.  6.  It  is  impossible 
to  give  any  reason  why  the  limitation  so  imposed  on  a  dan- 
gerous right  should  not  be  carried  much  further,  indeed  it 
obviously  ought  to  be  imposed  on  all  accusations  whatever. 
It  is  a  monstrous  absurdity  that  an  indictment  may  be  brought 
against  a  man  secretly  and  without,  notice  for  taking  a  false 
oath  or  committing  forgery  but  not  for  perjury ;  for  cheating 
but  not  for  obtaining  money  by  false  pretences ;  and  for  any 
crime  involving  indecency  or  immorality  except  the  three 
above  specified,  namely,  keeping  gambling  houses,  keeping 
disorderly  houses,  and  indecent  assaults.  There  are  many 
such  offences  (rape,  for  instance,,  and  abduction)  which  are 
quite  as  likely  to  be  made  the-  subject  of  vexatious  indict- 
ments intended  to  extort  money.  The  Criminal  Code  Com- 
missioners of  1878-9  recommended  that  this  act  should  be 
applied  to  all  indictments  whatever,  and  that  the  power  of 
secret  accusation,  which  came  into  existence  only  by  an 
accident,  should  be  altogether  taken  away. 

2  Criminal  Informations. — The  right  to  prefer  a  criminal 
information  is  restricted,  both  as  regards  the  offences  for 
which  and  the  persons  by  whom  it  may  be  preferred.  It 
may  be  preferred  only  for  misdemeanours,  and  only  by 
the  Attorney  or  Solicitor  General,  or  by  the  Master -of  the 
Crown  Office  acting  under  the  orders  of  the  Queen's  Bench 
Division,  upon  a  motion  made  in  open  court. 

Two  conflicting  accounts  are  given  of  the  origin  of 
criminal  informations.  One  view  of  the  subject  is  stated 
in   the    case   of    ^R.    ^.    Berchet    and    others    (1689),    in 

^  See,  too,  30  &  31  Vic.  c.  35,  ss.  1  &  2. 

^  For  present  law,  see  Dig.  Crim.  Proc.  ch.  xxiii.  arts.  195-206. 

2  1  Showers,  106-121. 


EARLY  HISTORY  OF  INFORMATIONS.  295 

an  elaborate  argument  which  Sir  B.  Shower  intended  to  Chap.  IX. 
deliver  on  the  question  whether  a  criminal  information 
would  lie  at  the  suit  of  a  private  person  for  a  riot.  The 
argument  refers  to  a  great  number  of  records  of  infor- 
mations from  the  reign,  of  Edward  I.  to  the  Eevolution  which 
show  that  throughout  the  whole  of  that  period  the  king's 
officers  exercised  the  right  of  putting  persons  on  their  trial 
for  all  sorts  of  misdemeanours  in  the  Court  of  King's  Bench 
without  any  indictment  by  a  grand  jury.  Such  a  course  was 
certainly  taken  before  the  Council  Board  and  the  Court  of 
Star  Chamber,  as  I  have  already  shown,  and  it  thus  appears 
that  from  the  earliest  times  the  king  accused  persons  of 
offences  not  capital  in  his  own  court  by  the  agency  of  his 
immediate  legal  representatives  without  the  intervention  of 
a  grand  jury. 

The  other  view  is  advanced  in  ^Barbery's  case,  which 
also  contains  an  undelivered  argument.  According  to 
this  view  criminal  informations  are  only  a  vestige  of  one 
of  the  provisions  by  which  Henry  VII.  increased  the 
stringency  of  the  administration  of  criminal  justice  at 
the  beginning  of  his  reign.  In  1494  an  act  was  passed 
(11  Hen.  7,  c.  3)  which  authorised  the  Courts  of  Assize 
and  Quarter  Sessions,  "upon  information  for  the  king  to 
"hear  and  determine  all  offences  and  contempts  (saving 
"treason,  murder,  and  felony)  committed  by  any  person 
"against  the  effect  of  any  statute  made  and  not  repealed." 
This  act  was  the  one  under  which  Empson  and  Dudley 
earned  their  obscure  infamy.  It  was  repealed  in  the  year 
1509  (1  Hen.  8,  c.  6).  In  the  interval  between  1494  and 
1509  informations  were  common,  but  they  were  afterwards 
disused  except  in  the  Court  of  Star  Chamber,  till  they 
were  revived  in  the  time  of  Charles  I.,  when  an  informa- 
tion was  filed  against  Elliot,  HoUis,  and  others,  for  words 
spoken  in  Parliament,  the  object  of  that  mode  of  procedure 
being  to  avoid  the  unpopularity  of  a  Star  Chamber  prosecu- 
tion. After  the  abolition  of  the  Court  of  Star  Chamber,  it  is 
said  there  was  another  interruption  in  the  use  of  informations 
till  the  reign  of  Charles  II.,  during  which  they  were  not 
1  20  St.  Tr.  866, 


296  LATER  HISTORY  OF  INFORMATIONS. 

Chap.  IX.  very  common.  After  the  Revolution  they  became  common, 
and  were  regulated  by  statute.  It  would  be  impossible  to 
determine  which  if  either  of  these  accounts  is  true,  without 
a  full  examination  of  the  rolls ;  but  for  practical  ptirposes  the 
inquiry  is  of  little  importance,  as  no  one  in  the  present  day 
would  question  the  legality  of  criminal  informations.  For 
upwards  of  200  years  they  have  been  in  use,  and  they  have 
been  recognised  and  regulated  by  several  acts  of  parliament. 
Whatever  may  have  been  its  origin,  the  power  to  file  criminal 
informations  in  the  Court  of  King's  Bench  was  used,  not  merely 
by  the  Attorney  and  Solicitor  General  in  cases  of  public  import- 
ance, but  also  by  the  Master  of  the  Crown  Office,  who  appears 
to  have  lent  his  name  to  any  one  who  wished  to  use  it.  Thus 
all  private  persons  were  able  to  prosecute  criminally  any  person 
who  had  offended  them  by  any  act  which  could  be  treated  as 
a  misdemeanour,  without  the  sanction  of  a  grand  jury.  This 
led  to  abuses  in  the  way  of  frivolous  malicious  prosecutions^ 
in  which  the  defendants  recovered  no  costs.  This  abuse  was 
effectually  remedied  by  4  Will.  &  Mary,  c.  18  (a.d.  1692), 
which  enacts  that  the  Master  of  the  Crown  Office  shall  file 
no  criminal  information  "  without  express  order  to  be  given 
"  by  the  said  Court  in  open  court"  and  upon  certain  con- 
ditions as  to  costs.  The  practical  result  of  this  statute  has 
been  to  make  a  motion  for  a  criminal  information  practi- 
cally equivalent  to  a  proceeding  before  magistrates  in  order 
to  the  committal  of  the  accused.  It  is  usually  resorted  to  in 
cases  of  a  grave  public  nature,  as,  for  instance,  where  a  person 
holding  an  official  position  is  libelled  and  wishes  to  have,  not 
only  a  speedy  remedy  for  the  wrong  done  to  him,  but  the 
opportunity  of  justifying  his  conduct  and  character  upon 
affidavit. 

The  power  of  the  law  officers  of  the  Crown  to  file  criminal 
informations  is,  or  rather  was,  commonly  exercised  in  the 
case  of  offences  likely  to  disturb  the  public  peace  or  the 
established  order  of  things.  Such  offences  are,  however,  now 
more  frequently  prosecuted  by  indictments.  Throughout  the 
latter  part  of  the  last  and  the  beginning  of  the  present 
century  the  hardships  to  which  defendants  were  or  were  said 
to  be  exposed  upon  criminal  informations  were  the  subject 


PLEAS.  297 

of  frequent  complaints,  and  ^  some  legislation  took  place  on  Chap.  ix. 
the  subject  to  -which  it  is  needless  to  refer  in  detail. 

Pleas. — The  next  step  to  the  indictment  is  the  arraign- 
ment, or  calling  of  the  accused  person  to  the  bar  to  plead  to 
the  charge  made  against  him.  There  are  now  only  four 
pleas  in  bar  which  an  accused  person  can  make,  namely,  not 
guilty,  guilty,  autrefois  acquit,  and  autrefois  convict.  The 
onlj  case  in  which  a  special  plea  can  be  pleaded  is  upon  trials 
for  libel,  as  to  which  some  remarks  will  be  made  in  reference 
to  that  offence.  The  plea  of  not  guilty  puts  the  prosecutor 
upon  the  proof  of  everything  necessary  to  prove  the  prisoner's 
guilt.  The  plea  of  guilty  admits  everything  and  supersedes 
all  further  proceedings.  The  pleas  of  autrefois  acquit  and 
convict  simply  allege  a  previous  acquittal  or  conviction  for 
the  same  offence  as  the  one  charged  in  the  indictment.  A 
pardon  might  also  be  pleaded,  and  if  a  peer  of  parliament 
were  arraigned  for  felony  before  any  court  other  than  the 
House  of  Lords  or  the  Court  of  the  Lord  High  Steward,  or 
if  a  person  were  arraigned,  e.g.  for  murder  before  a  Court  of 
Quarter  Sessions,  he  might  plead  to  the  jurisdiction,  but  in 
practice  such  pleas  are  never  heard  of 

Nothing  more  need  be  said  here  of  the  effect  of  these  \ 
pleas,  but  some  matters  of  considerable  historical  interest  are 
connected  with  the  subject  of  pleading  in  criminal  cases. 
For  reasons  which  it  is  now  difficult  to  represent  clearly 
to  the  mind,  it  seems  to  have  been  considered  in  early 
times  that  criminals  accused  of  felony  could  not  be  properly 
tried  unless  they  consented  to  the  trial  by  pleading 
and  "  putting  themselves  on  the  country."  The  prisoner 
was  first  required  to  hold  up  his  hand,  and  having  done  so, 
or  having  otherwise  owned  himself  to  be  the  person  indicted, 
the  substance  of  the  indictment  was  stated  to  him,  and  he 
was  asked  the  question,  "How  say  you,  are  you  guilty  or  not 
"guilty?"  If  he  said,  "Not  guilty,"  the  answer  was, 
"  2  Culprit,  how  will  you  be  tried  ? "  to  which  the  prisoner  had 

1  See  60  Geo.  3,  and  1  Geo.  i,  c.  4,  "An  Actto  prevent  delay  in  tlie 
administration  of  justice  in  cases  of  misdemeaaour." 

2  Blackstone  gives  a  curious  account  of  the  word  "  culprit. "  The  word,  h", 
says,  was  coined  out  of  two  abbreviations  used  in  taking  notes  in  the  indict- 
ment for  making  up  the  record,  if  necessary.     When  the  prisoner  pleaded 


298  PUTTING  HIMSELF  ON  THE  COUNTEY. 

Chap.  IX.  to  reply,  "  By  God  and  my  country."  Sacramental  import- 
ance  was  attached  for  centuries  to  the  speaking  of  these 
words.  If  a  prisoner  would  not  say  them,  and  even  if  he 
wilfully  omitted  either  "By  God"  or  " by  my  country,"  he 
was  said  to  stand  mute,  and  a  jury  was  sworn  to  say  whether 
he  stood  "mute  of  malice"  or  "mute  by  the  visitation  of 
"  God."  If  they  found  him  mute  by  the  visitation  of  God 
the  trial  proceeded.  But  if  they  found  him  mute  of  malice, 
if  he  was  accused  of  treason  or  misdemeanour,  he  was  taken 
to  have  pleaded  guilty,  and  was  dealt  with  accordingly.  If 
he  was  accused  of  felony,  he  was  condemned,  after  much  ex- 
hortation, to  the  jpeiiie  forte  et  dure,  that  is,  to  be  stretched, 
naked  on  his  back,  and  to  have  "iron  laid  upon  him  as 
much  as  he  could  bear  and  more,"  and  so  to  continue,  fed 
upon  bad  bread  and  stagnarffc  water  on  alternate  days,  till  he 
either  pleaded  or  died.  This  strange  rule  was  in  force  till 
the  year  1772,  when  it  was  abolished  by  12  Geo.  3,  c.  20, 
which  made  standing  mute  in  cases  of  felony  equivalent  to 
a  conviction.  In  1827  it  was  enacted,  by  7  &  8  Geo.  4,  c.  28, 
s.  2,  that  in  such  cases  a  plea  of  not  guilty  should  be 
entered  for  the  person  accused.  ^  A  case  in  which  pressing 
was  actually  practised  occurred  in  1726,  when  one  Burn  water, 
accused  at  Kingston  Assizes  of  murder,  refused  to  plead,  and 
was  pressed  for  an  hour  and  three  quarters  with  nearly  four 
hundredweight  of  iron,  after  which  he  pleaded  not  guilty, 
and  was  convicted  and  hanged.  In  1658  Major  Strangeways 
was  pressed  to  death  in  about  ten  minutes,  a  wooden  frame 
and  weights  being  placed  anglewise  over  his  breast,  and 
several  ^  persons  standing  on  the  frame  to  hasten  his  death. 

"not  guilty,"  the  clerk  of  assize  wrote  on  the  indictment  the  two  words  Twn 
cul.;iox  "non"  or  " nient  culpable"  not  guilty.  The  officer  of  the  court 
then  joined  issue  on  behalf  of  the  king  by  saying  that  the  prisoner  was  guUty 
and  that  he  (the  officer)  was  ready  to  prove  it.  The  note  which  was  made  of 
this  was  "  cul.,"  for  "  culpable,"  guilty  ;  and  "  prlt.,"  which  was  the  abbrevia- 
tion for  " paratus  verificare,"  the  two  abbreviations  making  "cul.  prtt."  In 
the  present  day,  for  some  reason  which  I  do  not  pretend  to  understand,  as 
soon  as  a  prisoner  pleads  "  not  guilty  "  the  clerk  of  assize  writes  on  the  in- 
dictment the  word  "  puts."  Does  this  mean  "  puts  himself  on  the  country," 
or  can  it  in  any  way  be  connected  with  the  old  "prtt"  1  The  forms  used  in 
court  are  all  very  old  and  mostly  extremely  curious.  They  are  preserved  all 
the  more  carefully  because  they  are  mere  forms  the  significance  of  which  is 
not  usually  understood  by  those  who  use  them.  The  derivation  of  "  culprit " 
given  in  dictionaries  is  "culpatus."  (See  Johnson's  Dictionary  by  Latham; 
Bkeat's  Etymological  Dictionary  and  Imperial  Dictionary. 
1  Pike's  History  of  Crime,  ii.  195,  283.  ^  "Were  they  guilty  of  murder  ? 


PEINE  FORTE   ET  DURE,  '  299 

The  object  of  refusing  to  plead  was  that  as  in  that  case  there  Chap.  ix. 
was  no  conviction,  no  forfeiture  took  place,  and  the  property 
of  the  accused  person  was  thus  preserved  for  his  heir. 

This  practice  of  the  "peine  forte  et  dicre,"  as  it  was  called, 
is  one  of  the  most  singular  circumstances  in  the  whole  of  the 
criminal  law.  ^Its  origin  probably  is  to  be  found  in  the 
times  when  ordeals  were  abolished  and  petty  juries  introduced. 
As  I  have  already  observed,  to  be  tried  by  an  inquest  instead 
of  being  tried  by  ordeal  was  at  first  an  exceptional  privi- 
lege, for  which  money  was  paid  to  the  king.  The  ordeal 
being  abolished,  it  is  possible  that  it  was  thought  hard  to 
put  a  man  to  death  upon  a  bare  accusation  without  any  kind 
of  trial,  and  that  it  appeared  to  be  contrary  to  the  nature  of  an 
inquest  to  appoint  a  jury  to  try  the  prisoner  unless  he  applied 
for  it.  If,  therefore,  an  accused  person  said  nothing  at  all,  the 
court  felt  embarrassed.  They  could  not  put  him  to  death  upon 
what  was  felt  with  increasing  distinctness  to  be  a  mere  accusa- 
tion. They  could  not  make  an  inquest  pass  upon  him  without 
his  consent.  Theydetermined  accordingly  to  extort  his  consent. 

Mr.  Pike  produces  some  evidence  to  show  that  in  the 
early  part  of  Edward  I.'s  reign,  people  who  refused  to  put 
themselves  on  their  trial  were  executed,  but  this  practice  was 
opposed  to  the  statute  3  Edw.  1,  c.  12  (a.d.  1275),  which 
provided  that  "notorious  felons"  {felouns  escriez),  "and 
"  which  openly  be  of  evil  name  and  will  not  put  themselves 
"  in  inquests  of  felonies  that  men  shall  charge  them  with 
"  before  the  justices  at  the  king's  suit,  shall  have  strong  and 
"  hard  imprisonment,  as  they  which  refuse  to  stand  to  the 
"  common  law  of  the  land.  But  this  is  not  to  be  understood 
"  of  such  prisoners  as  be  taken  of  light  suspicion."  According 
to  ^  Barrington  this  meant  that  the  prisoner  who  refused  to 
plead  was  to  be  starved  till  he  did,  but  not  tortured,  and 
he  quotes  in  proof  of  it  a  pardon  granted  in  the  reign  of 
Edward  III.  to  a  woman  who  "pro  eo  quod  se  tenuit 
"  mutam,"  was  put  "  in  arcta  prison^,"  and  there  lived 
without  eating  or  drinking  for  forty  days,  which  was 
regarded   as   a  miracle.     ^The  case  which  I  have  already 

1  This  was  pointed  out,  I  ttink,  for  the  first  time  inVike's  History  of  Orwie, 
i   210   &c.  ^  Observations  on  the  Statutes,  p.  83. 

"  3   Tear-Booh,  SO  &  31  Edw.  1,  p.  531.     Siopra,  p.  260. 


300  PEINE  FORTE  ET  DURE. 

Chap.  IX  referred  to  of  the  trial  of  Hugo  for  rape,  in  1303,  also  favours 
~~'  this  view,  for  when  Hugo  refused  to  plead  the  justice  said  to 
him,  "  Si  vos  velitis  legem  communem  refutare  vos  portabitis 
"  poenam  inde  ordinatam.  Scilicet  uno  die  manducabitis 
"  et  alio  die  bibebitis  ;  et  die  quo  bibitis  non  manducabitis,  et 
"  e  contra  ;  et  manducabitis  de  pane  ordeaceo  et  non  salo  et 
"  aqua,  &c."  Nothing  seems  to  have  been  said  about  pressing 
to  death.  There  is  a  passage  in  ^  Britton  to  the  same  effect. 
Indeed  the  rule  as  to  eating  and  drinking  on  alternate  days 
implies  that  pressing  was  an  innovation.  A  man  could 
not  be  subjected  to  such  a  process  for  days  together.  The 
practice  of  pressing  to  death  was,  according  to  ^Barrington, 
introduced  in  the  reign  of  Henry  IV.,  the  object  being  to  get 
on  with  business,  which  would  be  impossible  if  the  Assize 
Court  had  to  go  on  sitting  till  an  obstinate  prisoner  was  tired 
of  bread  and  water  on  alternate  days.  The  practice  was 
afterwards  supplemented  by  tying  the  thumbs  with  whip- 
cord, a  milder  form  of  torture  which  might  render  pressing 
unnecessary. 

The  whole  law  of  England  presents  no  more  characteristic 
incident  than  this.  It  exemplifies  the  extreme  scrupulosity 
of  its  founders,  their  occasional  and  rather  capricious  indif- 
ference to  the  infliction  of  pain,  the  power  of  tradition  and 
practice  to  vary  even  the  plain  meaning  of  a  statute,  and  the 
astonishing  tenacity  of  legal  forms.  Ordeals  were  abolished 
about  1215,  yet  the  question  of  the  ofiicer  of  the  court, 
"  Culprit,  how  will  you  be  trifed  ?  "  and  the  prisoner's  answer, 
"  By  God  and  my  country,"  preserved  the  memory  of  them 
down  to  the  year  1827.  "  By  God  "  no  doubt  once  meant 
"  by  ordeal,"  "  my  country "  always  meant  the  inquest  or 
jury,  and  the  "  and  "  marks  the  period  at  which  "  by  God  " 
became  a  merely  conventional  phrase,  preserving,  though  used 
in  a  different  sense,  the  memory  of  an  extinct  institution. 

^  1  Britton,  26  (by  Nicholls).  "  Et  si  il  ne  se  veulent  aijuitter  si  soint  mis  a 
"  leur  penaunce  jekes  autant  qe  il  le  prient.  La  penaunce  soit  tele  qe  et 
"  soint  dechaneez  et  sauntz  ceijnture  et  saunz  chaperon  en  pyer  liu  de  la 
"  prisoun  sur  la  neuve  terre  assiduelment  jour  et  nuyt  et  qe  il  ne  mangeusent 
"  for  qe  pagn  de  orge  ou  de  bien  et  qe  il  ne  beyvent  mie  le  jour  qe  il  mange- 
"  runt  et  le  jour  qe  il  beyvent  ue  mangerunt  mie  et  qe  il  ne  beyvent  for  qe 
"  del  eur  et  il  soint  en  fyrges  "  (i.e.  fers). 

'^  P.  84.  A  man  was  compelled  to  plead  by  having  his  thumbs  tied  at  the 
Old  Bailey  in  1734. 


CHALLENGING  JUEOES.  3OI 

There  must  have  been  a  time  when  the  prisoner  answered,  Chap.  IX, 
"  by  God,"  if  he  had  not  bought  a  licence  to  have  a  jury, 
and  meant  to  go  to  the  ordeal,  and  "  by  my  country  "  if  he 
had,  and  so  avoided  the  ordeal.' 

1  Impanneling  the  Jury.— The  prisoner  having  pleaded, 
the  next  step  is  that  of  impanneling  the  jury  by  whom  he  is 
to  be  tried.  It  follows  from  what  I  have  already  said  as  to 
the  origin  of  trial  by  jury  that  the  impanneling  of  the  jury 
was  in  very  ancient  times  equivalent  to  the  choice  of  the 
witnesses  by  whom  matters  of  fact  were  to  be  determined. 
The  old  law  of  evidence  consisted  perhaps  mainly,  at  all 
events  largely,  of  rules  by  which  certain  classes  of  witnesses 
were  rendered  incompetent,  and  the  rules,  whatever  they  were, 
as  to  challenging  jurors,  must  have  been  in  fact  rules  whereby 
the  parties  were  enabled  to  exclude  testimony,  though  we 
cannot  now  say  how  far  the  fact  that  a  man  was  successfully 
objected  to  as  a  juryman  operated  to  prevent  him  from 
giving  those  who  were  sworn  the  benefit  of  any  evidence  he 
might  have  it  in  his  power  to  give. 

The  right  of  challenge  is  mentioiied  by  Bracton  incidentally 
and  in  very  general  terms.  In  the  passage  already  commented 
upon  he  says,  ^  "Cum  igitur  procedendum  sit  de  hujusmodi 
"  ad  inquisitionem  ut  ad  judicium  securius  procedatur,  et  ut 
"  periculum  et  suspicio  tollatur  justitiarius  dicat  indictato 
"  quod  si  aliquem  ex  duodecim  juratoribus  suspectum  habeat 
"  ilium  justa  ratione  amoveat.  Et  illud  idem  dicatur  de 
"  villatis  ut  si  capitales  inimicitise  fuerint  inter  aliquos  ipsorum 
"  et  indictatum  vel  si  ob  cupiditatem  terrae  habendse,  ut 
"  predictum  est,  qui  omnes  amovendi  sunt  ex  justei  suspicione 
"  ut  inquisitio  absque  omni  suspicione  procedat." 

There  are  also  references  to  challenges  of  jurors  in  the 
passages  already  quoted  from  Britton.  Without  following 
out  the  subject  minutely,  the  following  may  be  stated  as  the 
broad  final  result:  The  prisoner  was  allowed  to  challenge 
peremptorily,  i.e.  without  showing  cause,  any  number  of 
jurors  less  than  thirty-five,  or  three  whole  juries.  "When  or 
why  he  acquired  this  right  it  is  difficult  to  say.  Neither 
Bracton  nor  Britton  mention  it,  and  it  is  hard  to  reconcile  it 
1  Dig.  Grim.  Proc.  arts.  274-282.  ^  ii.  454. 


302  crown's  eight  to  challenge. 

Chap.  IX.  with  the  fact  that  the  jurors  were  witnesses.  A  man  who 
might  challenge  peremptorily  thirty-five  witnesses  could 
always  secure  impunity.  It  probably  arose  at  a  period  when 
the  separation  between  the  duties  of  the  jury  and  the 
witnesses  was  coming  to  be  recognised.  The  earliest  statute 
on  the  subject,  33  Edw.  1,  st.  4  (a.d.  1305),  enacts  "that 
"  from  henceforth,  notwithstanding  it  be  alleged  by  them 
"  that  sue  for  the  king  that  the  jurors  of  those  inquests, 
"  or  some  of  them,  be  hot  indifferent  for  the  king,  yet  such 
"  inquests  shall  not  remain  untaken  for  that  cause,  but  if 
"  they  that  sue  for  the  king  will  challenge  any  of  those 
"  jurors,  they  shall  assign  of  the  challenge  a  cause  certain." 
This  says  and  implies  nothing  at  all  as  to  the  party's  right  of 
peremptory  challenge,  but  implies  that  before  that  time  the 
king  had  an  unlimited  right  of  peremptory  challenge,  and 
this,  though  it  may  seem  harsh,  is  intelligible  when  we 
remember  that  the  jurors  were  witnesses.  It  would  obviously 
be  right  that  the  prosecutor  should  choose  his  witnesses, 
otherwise  the  jury  might  know  nothing  of  the  matter. 

Be  this  how  it  may,  a  right  to  challenge  thirty-five  jurors 
peremptorily  did  undoubtedly,  before  Fortescue  wrote,  accrue 
to  prisoners  accused  of  felony,  for  he  describes  and  boasts 
of  it,  and  that  right  remained  unaltered  till  25  Hen.  8, 
c.  3  (1533),  when  the  number  was  limited  to  twenty  in  all 
cases  except  treason.  The  acts  of  Edward  I.  and  Henry  VIII. 
were  repealed  and  re-enacted  by  6  Geo.  4,  c.  50.  s.  29,  which 
is  still  in  force. 

There  were  at  one  time  considerable  doubts,  which  were 
not  finally  decided  till  our  own  time,  as  to  the  manner  in 
which  the  rights  of  the  Crown  and  the  prisoner  were  to  be 
regulated.  The  effect  of  various  decisions  on  the  subject  is 
this :  When,  which  rarely  happens,  the  right  of  peremptory 
challenge  is  to  be  exercised  in  the  strictest  way,  the  following 
course  is  taken :  The  officer  of  the  court  calls  over  the 
whole  pannel,  so  that  both  parties  may  know  what  jurymen 
answer  to  their  names.  The  jurors  who  answer  are  then 
called,  and  the  prisoner,  as  "each  comes  to  the  book  to  be 
"  sworn,"  must  challenge  him  either  peremptorily  or  for 
cause.      If  the  prisoner  does  not  challenge  the  juror  the 


THE   HEARING.  3O3 

Crown  may  direct  him  to  stand  by  without  assigning  any  Chap.  IX. 
cause.  When  the  whole  pannel  has  been  gone  through,  if 
twelve  have  not  been  sworn,  the  men  ordered  to  stand  by 
must  be  recalled,  and  if  the  prisoner  does  not  challenge  either 
peremptorily  or  for  cause,  the  Crown  must  show  its  cause  of 
challenge.  In  other  words,  the  prisoner  has  twenty  peremp- 
tory challenges,  and  the  Crown  has  none,  but  the  prisoner  may 
be  compelled  to  exhaust  all  his  challenges  before  the  Crown 
is  called  upon  to  show  cause  for  its  challenges.  •'■If  a  very 
large  number  of  jurors  is  returned,  the  effect  of  this  is  to  give 
the  Crown  what  is  nearly  equivalent  to  a  right  of  peremptory 
challenge.  This,  speaking  practically,  is  a  matter  of  hardly 
any  importance  in  quiet  times  in  England.  In  the  course  of 
my  experience  I  do  not  remember  more  than  two  occasions  on 
which  there  were  any  considerable  number  of  challenges. 

When  a  challenge  is  made  its  truth  is  tried  either  by  two 
persons  named  by  the  sheriff,  or  if  any  jurymen  have  been 
sworn,  then  by  the  two  last  sworn. 

A  challenge  to  the  array  is  also  possible,  though  very 
uncommon.  It  occurs  when  it  is  alleged  that  the  sheriff  has 
made  up  the  pannel  unfairly. 

^  The  Heaeing. — The  jury  being  sworn,  the  trial  proceeds. 
It  consists  of  the  following  steps.  The  prisoner  is  given  in 
charge  to  the  jury  by  the  of&cer  of  the  court.  The  counsel 
for  the  Crown  states  his  case  and  calls  his  witnesses  to  prove 
it.  If  the  prisoner  calls  no  witnesses,  or  calls  witnesses  to 
character  only,  the  counsel  for  the  Crown  may  (unless  the 
prisoner  is  undefended  by  counsel)  at  the  end  of  his  evidence 
sum  up  its  effect  to  the  jury.  The  prisoner,  or  his  counsel, 
then  makes  his  defence,  and  calls  his  witnesses.  If  he 
calls  witnesses,  the  counsel  for  the  Crown  has  a  right  to 
reply,  and  if  the  Attorney  or  Solicitor  General  prosecutes  in 
person,  he  has  a  right  to  reply  whether  the  prisoner  calls 

1  Suppose,  e.g.  150  jurymen  are  on  the  pannel.  The  prisoner  challenges 
twenty  peremptorily.  The  Crown  makes  130  stand  by.  The  130  are  then 
called,  and  the  prisoner  challenges  for  cause.  It  is  hardly  likely  that  he  will 
he  able  to  allege  a  definite  cause  of  challenge  against  more  than  a  few  ;  say, 
however,  that  he  challenges  twenty  more  for  cause.  There  still  remain  1]  0 
as  to  whom  the  Crown  must  show  cause.  The  Crown  shows  no  cause,  and  the 
first  twelve  are  sworn.  Obviously  ninety-eight  remain  whom  the  Crown  has 
practically  challenged  peremptorily.  "  Dig.  Grim.  Proc.  arts.  283-300. 


304  VERDICT— UNANIMITY   OF  JURORS. 

Chap.  IX.  witnesses  or  not.  The  judge  then  sums  up  the  evidence. 
The  jury  return  their  verdict.  If  they  acquit  the  prisoner,  he 
is  discharged.  If  they  convict  him,  he  is  asked  in  cases  of 
felony  what  he  can  say  why  judgment  should  not  be  passed 
upon  him,  and  unless  he  says  something  in  arrest  of  judgment, 
he  is  sentenced. 

Criminal  trials  as  we  know  them,  are  the  result  of  a  long 
series  of  changes  which  occurred  between  the  reign  of  Queen 
Mary,  when  the  earliest  trials  of  which  we  have  detailed 
accounts  took  place,  and  down  to  our  own  time.  These 
changes  can  be  understood  only  by  a  study  of  the  trials  them- 
selves, and  by  experience  of  the  proceedings  of  the  existing 
courts  of  justice.  I  have  thought  it  best  to  treat  this 
matter  apart  from  the  legal  incidents  of  a  trial ;  and,  accord- 
ingly, what  I  have  to  say  upon  it  will  be  found  in  Chapters 
XI.  and  XII.,  the  iirst  of  which  traces  the  development  of 
criminal  trials  through  a  period  of  about  200  years,  whilst  the 
second  describes  contemporary  trials.  I  mention  the  matters 
above  referred  to  here  in  order  to  preserve  the  continuity 
of  this  chapter. 

The  Verdict. — In  relation  to  the  verdict  of  the  jury 
two  matters  only  require  notice,  namely,  the  rule  that  the 
jurors  must  be  unanimous,  and  the  right  of  the  jury  to 
return  whatever  verdict  they  thiak  right  without  being 
subject  to  be  punished  at  the  will  of  the  court. 

The  rule  which  required  unanimity  is,  I  think,  easily 
explained  historically,  and  easily  justified  on  grounds  of 
expediency.  The  historical  explanation  appears  from  the 
passages  already  quoted  from  Bracton,  Britton,  and  other 
early  authorities.  The  jurors  were  required  to  be  unani- 
mous because  they  were  witnesses,  and  the  rule  was  that 
twelve  witnesses,  or  persons  taken  as  witnesses,  must  swear 
to  the  prisoner's  guilt  before  he  could  be  convicted. 

The  justification  of  the  rule,  now  that  the  character  of  the 
jury  has  changed  from  that  of  witnesses  to  that  of  judges  of 
fact,  seems  to  me  to  be  that  it  is  a  direct  consequence  of  the 
principle  that  no  one  is  to  be  convicted  of  a  crime  unless  his 
guilt  is  proved  beyond  all  reasonable  doubt.  How  can  it  be 
alleged  that  this  condition  has  been  fulfilled  so  long  as  some 


BEMAEKS   ON  UNANIMITY  OF  JUEOES.  305 

of  the  judges  by  whom  the  matter  is  to  be  determined  do  in  chap.  jx. 

fact  doubt  ?     It  has  been  often  suggested  that  after  a  certain       

time  the  verdict  of  a  minority  should  be  taken,  as  for  instance, 
that  the  verdict  of  eleven  should  be  taken  after  one  hour, 
and  that  of  nine  after  three  hours.  Such  proposals  appear 
to  me  to  be  open  to  the  objection  that  they  diminish  the 
security  provided  by  trial  by  jury  in  direct  proportion  to  the 
occasion  which  exists  for  requiring  it.  If  a  case  is  easy 
you  require  unanimity.  If  it  is  difficult  you  accept  a  small 
majority.  If  very  difficult  a  still  smaller  one.  My  own 
opinion  is  that  trial  by  jury  has  both  merits  and  defects, 
but  that  the  unanimity  required  of  the  jurors  is  essential 
to  it.  If  that  is  to  be  given  up,  the  institution  itself 
should  be  abolished.  There  is  a  definite  meaning  in  the 
rule  that  criminal  trials  are  to  be  decided  by  evidence 
plain  enough  to  satisfy  in  one  direction  or  the  other  a 
certain  number  of  representatives  of  the  average  intelligence 
and  experience  of  the  community  at^large,  but  if  some  of 
the  members  of  such  a.  group  are  of  one  opinion  and  some- 
of  another,  the  result  seems  to  be  that  the  process  has 
proved  abortive  and  ought  to  be  repeated.  If  the  rule  as 
to  unanimity  is  to  be  relaxed  at  all,  I  would  relax  it  only 
to  the  extent  of  allowing  a  large  majority  to  acquit  after  a, 
certain,  time. 

It  is  a  remarkable  illustration  of  the  vagueness  of  the 
criminal  law  upon  points  which  one  would  have  thought 
could  not  have  remained  undecided,  that  till  very  modem 
times  indeed  it  was  impossible  to  say  what  was  the  law  as  to 
cases  in  which  the  jury  could  not  agree,  and  it  was  possible 
to  maintain  that  it  was  the  duty  of  the  presiding  judge  to 
confine  them  without  food  or  fire  till  they  did  agree.  It 
was,  however,  solemnly  determined  in  1866  in  ^  the  case  of 
Winsor  v.  R.  that  in  any  case  regarded  by  the  judge  as  a 
case  of  necessity  the  jury  may  be  discharged  and  the  prisoner 
committed  and  tried  a  second  time,  and  that  a  judge  is 
justified  in  regarding  a  case  in  which  the  jury  are  unable  to 
agree  after  a  considerable  length  of  time  as  a  case  of 
necessity.     One  result  of  this  decision  has-  practicaJIy  been  to 

1  L.  E.  1  Q.  B.  289,  and  Cam..  Sc.  390. 
VOL.  I.  X 


;o6 


BUSHELL  S   CASE — SIR   T.    SMITH. 


Chap.  IX.  obviate  the  objections  usually  made  to  the  rule  requiring 
unanimity  in  jurors,  all  of  which  turned  on  the  notion  that 
the  law  required  the  jury  to  be  starved  into  giving  a 
verdict.  Every  authority  bearing  on  the  subject  is  referred 
to  in  -the  argument.  ^  By  the  Jurors  Act  of  1870,  juries 
may  be  allowed  when  out  of  court  a  fire,  and  refreshments 
to  be  procured  at  their  own  expense. 

The  right  of  the  jury  to  return  a  verdict  according  to 
their  own  consciences,  and  without  being  subjected  in  respect 
of  it  to  any  penal  consequences  was  finally  established  by 
^  Bushell's  case  in  the  year  1670.  In  some  earlier  instances 
and  particularly  in  the  celebrated  case  of  Sir  Nicholas 
Throckmorton  in  1554,  the  jurors  were  imprisoned  and 
heavily  fined  for  acquitting  the  prisoner.  This,  however,  was 
regarded  as  a  great  stretch  of  power  even  in  those  days.  Sir 
Thomas  Smith  says — ^  "  li  they"  (the  jury)  "do  pronounce 
"  not  guilty  upon  the  prisoner  against  whom  manifest  witness 
"  is  brought  in  the  prisoner  escapeth ;  but  the  twelve  not 
"  only  rebuked  by  the  judges  but  also  threatened  of  punish- 
"  ment,  and  many  times  commanded  to  appear  in  the  Star 
"  Chamber  or  before  the  Privy  Council  for  the  matter.  But 
"  this  threatening  chanceth  oftener  than  the  execution  thereof, 
"  and  the  twelve  answer  with  most  gentle  words  they  did 
"it  according  to  their  consciences  and  pray  the  judges  to  be 
"  good  unto  them  as  they  did  as  they  thought  right  and  as 
"  they  accorded  all,  and  so  it  passeth  away  for  the  most  part." 
He  then  refers  to  cases  in  which  the  jurors  had  been  fined — 
no  doubt  having  in  his  mind  Throckmorton's  case,  and  adds, 
"  But  these  doings  were  even  then  of  many  accounted  very 
"  violent,  tyrannical,  and  contrary  to  the  liberty  and  custom 
"  of  the  realm  of  England." 

Anciently,  it  may  be,  though  the  contrary  seems  as  pro- 
bable, jurors  who  returned  a  corrupt  verdict  in  criminal  cases 
were  liable  to  what  was  called  an  attaint  at  the  suit  of  the 

1  33  &  34  Vic.  c.  77,  a.  23. 

^  6  St.  Tr.  999.  In  a  case  very  .similar  to  Bushell's,  which  happened  a  few 
years  before,  Kelyng,  C.J.,  fined  the  jury.  His  account  of  the  matter  is  long 
and  very  curious.  See  edition  of  1873,  pp.  69-75.  This  matterwas  notprinted 
m  the  old  edition. 

'  Gommonwealth  of  England,  p.  211. 


ATTAINTS.  307 

king,  though  not  at  the  suit  of  the  party.  The  attaint  was  a  chap.  IX. 
remedy  for  a  corrupt  verdict  in  civil  cases,  and  was  tried  by  a 
jury  of  twenty-four,  who,  if  they  thought  proper,  might  convict 
the  first  jury  of  a  false  verdict.  The  first  jury  were  thereupon 
subjected  to  what  was  called  the  ^ "  villain  judgment,"  namely, 
imprisonment,  infamy,  and  various  forfeitures.  This  is  referred 
to  with  applause  by  ^  Fortescue  in  the  middle  of  the  fifteenth 
century.  It  is  spoken  of  by  ^  Smith  late  in  the  sixteenth 
century  as  being  in  his  time  hardly  known.  Hale  says  some- 
what faintly,  speaking  late  in  the  seventeenth  century  of 
perverse  acquittals  in  criminal  cases :  * "  I  think  in  such 
"  cases  '  the  king  may  have  an  attaint.' "  And  ^  Lord 
Mansfield  said  in  1757,  "  The  writ  of  attaint  is  now  a  mere 
"  sound  in  every  case."  In  1825,  attaints  were  abolished 
by  6  Geo.  4,  c.  50,  s.  60. 

The  attaint  (whether  it  ever  really  applied  to  criminal  cases 
or  not)  deserves  notice  as  one  of  the  many  proofs  which  may 
be  given  of  the  fact  that  jurors  were  originally  witnesses. 
Perjury  by  a  witness  was  not  a  crime  known  to  the  law  of 
England  till  the  reign  of  Queen  Elizabeth.  The  only  form  of 
that  offence  which  was  punished  in  the  early  stages  of  our 
legal  history  was  the  perjury  of  jurors,  which  made  them 
liable  to  an  attaint. 

Judgment. — The  verdict  of  the  jury  is  followed  by  the 
judgment  of  the  Court,  which  maybe  either  that  the  prisoner 
be  discharged  or  that  he  suffer  punishment.  This  matter 
I  do  not  propose  to  consider  at  length  in  this  place,  the 
importance  of  the  subject  of  legal  punishments  and  their 
history  being  such  as  to  deserve  separate  consideration. 

1  Srd  Institute,  222.  ^  Ch.  xxvi. 

3  Bk.  iii.  cii.  2.     "  Attaints  be  very  seldom  put  in  use." 

*  2  Hale,  P.  0.  310. 

*  Bright  V.  Eynon,  1  Burr.   393.    See,  too,    Barrington  on  the  Statutes, 
100,  459. 


5  2 


308  APPEALS — WRIT   OF   EEROE. 


CHAPTER  X. 

HISTOEY  OF  THE  LAW  OF  CEIMINAL  PEOCEDUEE  CONTINUED. — 
IpEOCEEDINGS  BT  WAY  OF  APPEAL. 

Chap.  X.  HAVING  in  the  preceding  chapters  described  the  proceedings 
connected  with  a  criminal  trial  from  the  apprehension  of  the 
suspected  person  to  the  judgment,  I  proceed  to  give  an 
account  of  the  manner  in  which  the  judgment  of  the  court 
may  be  called  in  question. 

It  is  a  characteristic  feature  in  English  criminal  procedure 
that  it  admits  of  no  appeal  properly  so  called,  either  upon 
matters  of  fact  or  upon  matters  of  law,  though  there  are  a 
certain  nurdber  of  proceedings  which  to  some  extent  appear 
to  be,  and  to  some  extent  really  are,  exceptions  to  this  rule. 

The  first  of  these  exceptions  is  a  writ  of  error.  It  is  a 
remedy  applicable  to  those  cases  only  in  which  some  irre- 
gularity apparent  upon  the  record  of  the  proceedings  takes 
place  in  the  procedure. 

In  order  to  explain  this  it  is  necessary  to  describe  what  is 
meant  by  the  record.  As  I  have  already  observed  the  only 
document  connected  with  a  trial  necessarily  put  into  writing  is 
the  indictment.  Upon  this  the  clerk  of  assize  or  other  officer 
of  the  court  makes  certain  memoranda,  showing  the  plea  of  the 
prisoner  and  the  verdict  of  the  jury.  He  also  keeps  a  minute 
book  in  court  in  which  he  makes  a  note  of  the  names  of  the 
jurors  by  whom  different  sets  of  cases  are  tried,  an  abstract 
of  the  indictments,  and  a  memorandum  of  pleas,  verdicts,  and 
sentences.  This  is  a  mere  private  memorandum  book  having 
no  legal  authority,  and  kept  merely  for  the  purposes  of 
the  officer  who  keeps  it.  He  is  under  no  obligation  to 
1  Dig.  Crim.  Proc.  arts.  301-315. 


THE  EECORD.  ■  3O9 

keep  it.  No  form  is  prescribed  in  -which  it  is  to  be  kept,  and  Chap.  X. 
it  never  becomes  in  any  way  a  public  record.  In  all  cases, 
however,  except -an  infinitesimally  small  number,  it  is  the 
only  record  kept  of  criminal  trials,  and  nothing  more  meagre, 
unsatisfactory,  and  informal  can  well  be  conceived.  If,  how- 
ever, it  becomes  necessary  (to  use  the  technical  expression) 
"to  make  up  the  record,"  it  becomes  the  foundation  of  a 
history  of  the  proceedings,  set  out  with  pedantic  and 
useless  minuteness  and  detail.  The  record  in  cases  of  felony, 
says  ^Chitty,  "states  the  session  of  Oyer  and  Terminer,  the 
"  commission  of  the  judges,  the  presentment  by  the  oath  of 
"  the  grand  jurors  by  name,  the  indictment,  the  award  of  the 
"  capias  or  process  to  bring  in  the  offender,  the  delivery  of  the 
"  indictment  into  Court,  the  arraignment,  the  plea,  the  issue, 
"  the  award  of  the  jury  process,  the  verdict,  the  asking  the 
"  prisoner  why  sentence  should  not  be  passed  upon  him, 
"  and  the  judgment.  "^  All  this  matter  is  stated  with  the 
utmost  elaboration  and  detail,  and  the  special  matter  which 
is  of  real  importance  and  on  which  error  is  to  be  assigned 
comes  in  in  its  place  in  the  midst  of  a  quantity  of  matter 
which  is  of  no  sort  of  practical  use.  As  the  record  takes  no 
notice  either  of  the  evidence  or  of  the  direction  given  by  the 
judg^  to  the  jury  the  grossest  errors  of  fact  or  of  law  may 
occur  without  being  in  any  way  brought  upon  the  record,  and 
as  the  writ  of  error  affirms  that  there  is  error  on  the  record, 
no  error  which  is  not  so  recorded  can  be  taken  advantage 
of  by  those  means. 

The  history  of  writs  of  error  in  criminal  cases  is  given  by 
Lord  Mansfield  in  ^  Wilkes's  case.  It  is  shortly  this.  Till 
the  third  year  of  Queen  Anne  writs  of  error  in  all  such  cases 
were  issued  entirely  as  a  matter  of  favour,  and  were  the- 
means  by  which  the  Crown  when  so  minded  caused  a  con- 
viction to  be  reversed.  The  defendant  brought  his  writ  of 
error.  The  Attorney-General  admitted  that  there  was  error. 
The  court  accepted  his  admission  and  the  conviction  was  set 

J  1  Or.  Law.  719. 

2  In  Orton's  case  the  main  question  was  whether  cumulative  punishment 
could  be  awarded  for  two  oflfenoes  charged  in  separate  counts  of  the  same 
indictment.  The  record  was  a  parchment  roll  of  monstrous  size,  setting  forth 
together  with  much  other  wholly  unimportant  matter,  every  order  made  by  the 
court  for  the  adjournment  of  the  trial  to  the  next  sitting.  ^  4  Buj^_  2550. 


3IO  MOTIONS   FOR   NEW   TEIALS. 

Chap.  X.  aside.  But  in  the  third  year  of  Queen  Anne's  reign  the  court 
held,  on  the  one  hand,  that  in  cases  of  misdemeanour  writs 
of  error  ought  to  be  granted  as  a  matter  of  justice  if  there 
was  probable  ground  to  think  that  there  actually  was  any 
error  in  the  proceedings,  and  that  if  the  Attorney-General 
refused  to  grant  his  fiat  for  the  issue  of  such  a  writ  they 
would  direct  him  to  grant  it :  they  held  on  the  other  hand, 
that  when  the  writ  was  issued  they  would  not  be  contented 
with  the  Attorney-General's  admission  of  error,  but  would 
judicially  determine  whether  error  existed  or  not.  In  cases 
of  felony  and  treason,  however,  the  issue  of  a  writ  of  error 
was  and  always  continued  to  be  exclusively  matter  of  favour. 
In  more  modern  times  this  distinction  has  practically  passed 
into  oblivion.  A  writ  of  error  still  issues  upon  the  fiat  of  the 
Attorney- General,  but  it  is  never  refused  when  any  point 
which  can  be  regarded  as  arguable  arises,  whether  in  cases  of 
felony  or  of  misdemeanour,  and  when  such  a  case  does  arise 
it  is  always  judicially  decided  as  a  matter  of  course,  whether 
error  exists  or  not. 

Writs  of  error  are  for  the  reasons  above  given  so  limited 
in  their  application  that  they  are  but  rarely  used. 

^  Besides  writs  of  error  motions  for  new  trials  are  permitted 
in  some  cases  of  misdemeanour,  namely,  cases  of  misdemeanour 
tried  before  the  Queen's  Bench  Division  in  the  exercise  of 
its  original  jurisdiction,  or  sent  down  by  that  division  to  be 
tried  at  the  Assizes  on  the  Nisi  Prius  side.  If  a  mis- 
demeanour is  tried  before  Commissioners  of  Oyer  and 
Terminer  at  the  Assizes  or  at  the  Quarter  Sessions,  the 
Queen's  Bench  Division  will  not  after  verdict  remove  the 
case  by  certiorari,  with  a  view  to  granting  a  new  trial. 
If  the  parties  wish  to  have  the  possibility  of  applying 
for  a  new  trial,  or  to  have  a  special  jury,  their  course 
is  to  apply  for  a  certiorari  before  the  case  comes  on  to  be 
tried.  If  the  court  is  satisfied  that  questions  of  difficulty 
are  likely  to  arise  they  will  issue  a  certiorari,  and  either 
have  the  case  tried  before  the  Queen's  Bench  Division  at 
Westminster,  or.  send  it  down  to  be  tried  as  a  Nisi  Prius 
record  at  the  Assizes  or  in  the  City  of  London.  When  the 
1  Chitty,  a.  L.  653—660. 


NEW  TRIALS  ON   QUEEN'S  BENCH  RECOEDS.  311- 

case  is  so  tried  a  new  trial  may  be  moved  for  on  the  ground    Chap.  X. 
of  misdirection,  that  the  verdict  was  against  the  evidence,  or 
on  other  grounds   on   which    new  trials  are   moved  for    in 
civil  cases.     According  to  Chitty,  the  first  instance  of  such 
a  new  trial  was  in  the  year  1655. 

^  One  case  only  has  occurred  in  which  a  new  trial  was 
granted  for  felony,  and  that  case  was  afterwards  disapproved 
of  and  not  followed  by  the  Judicial  Committee  of  the  Privy 
Council  in  R.  v.  Bertrand  (L.  R.  1  P.  C.  520).  It  is  very 
remarkable  that  in  the  argument  upon  R.  v.  Scaife,  no 
notice  was  taken  of  the  novelty  of  the  proceeding. 

^  When  the  jury  return  an  imperfect  special  verdict  in  any 
criminal  case  a  new  jury  may  be  summoned  and  the  matter 
reheard  (by  a  proceeding  called  a  venire  de  novo).  Special 
verdicts  are  verdicts  in  which  the  jury  not  wishing  to  decide 
upon  the  law  find  the  facts  specially,  referring  it  to  the  court 
to  say  whether  upon  those  facts  the  prisoner  is  or  is  not  guilty 
of  the  crime  for  which  he  is  indicted. 

Special  verdicts  have  now  gone  almost  entirely  out  of  use, 
having  been  superseded  by  the  establishment  of  a   court 
called  the  Court  for  Crown  Cases  Reserved.     The  history  of 
this  court  is  as  follows.     From  very  early  times  a  practice 
had  prevailed  that  a  judge  before  whom  any  criminal   case 
of  difficulty  arose  at  the  Assizes  or  elsewhere,  should  respite 
the  execution  of  the  sentence  or  postpone  judgment,  and 
report  the  matter  to  the  other  judges.    The  question  reserved 
was  argued  before  the  judges  by  counsel,  not  in  a  court  of 
justice  but  at  Serjeant's  Inn  of  which  all  the  judges  were 
members.     If  they  thought  that  the  prisoner  had  been  im- 
properly convicted  he  received  a  free  pardon.     If  not,  the 
sentence  was  executed  or  judgment  was  passed.     No  judg- 
ment was  delivered  and  no  reasons  were  given  in  such  cases, 
the  whole  proceeding  being  of  an  informal  kind.     When  a 
case  was  tried  at  the  Quarter  Sessions  no  means  for  ques- 
tioning the  result  existed.     ^In  1848  this  informal  tribunal 
was  erected  into  a  court  called  the  Court  for  Crown  Cases 
Reserved.     It  consists  of  all  the  judges ;  but  five,  of  whom 

1  E.  V.  Scaife,  17  Q.  B.  238  (1861).  ^  Chitty,  C.  L.  654. 

3  11  &  12  Yio.  c.  78. 


312  COURT   FOR   CROWN   CASES   RESERVED. 

Chap.  X.  the  ^Lord  Chief  Justice  must  be  one,  are  a  quorum.  If, 
however,  the  five  judges  differ,  the  minority  are  not  bound 
by  the  decision  of  the  majority,  but  any  one  of  them  may 
•  require  the  matter  to  be  referred  to  the  whole  body  of 
fifteen.  This  course  was  taken  in  the  well-known  case  of 
R.  V.  Keyn.  .It  is  obviously  extremely  inconvenient,  and  it 
may  be  doubted  whether  those  who  framed  the  statute 
intended  it  to  be  taken.  Any  judge  or  chairman,  or 
recorder  of  a  Court  of  Quarter  Sessions,  may  state  a  case 
for  the  opinion  of  the  court  "  as  to  any  question  of  law 
"  which  shall  have  arisen  at "  any  "trial,"  either  committing 
or  bailing  the  prisoner  in  the  meanwhile.  The  court  hears 
the  case  argued,  delivers  judgment,  and  may  either  reverse 
the  judgment  (if  any)  or  confirm  it,  or  direct  the  court  by 
which  the  case  was  stated  to  give  judgment.  This  court  can 
determine  questions  of  law  arising  at  the  trial,  but  cannot 
take  notice  of  questions  of  fact,  and  it  is  absolutely  in  the 
discretion  of  the  presiding  judge  at  a  trial  whether  he  will 
or  will  not  reserve  a  point  for  its  decision. 

The  result  of  the  whole  is  that  a  provision,  sufficient  though 
intricate  and  technical,  is  made  for  the  decision  of  questions 
of  law  arising  at  the  trial  by  courts  in  the  nature  of  appellate 
tribunals  ;  but  it  must  be  added  that  the  criminal  law  is  now 
for  the  most  part  so  well  settled  and  understood  that  this 
is  a  matter  of  little  practical  importance.  "Writs  of  error 
^  are  of  rare  occurrence,  and  the  Court  for  Crown  Cases  Re- 
served sits  only  three  or  four  times  a  year  for  a  day,  or  more 
often  half  a  day,  at  a  time,  and  probably  does  not  determine 
twenty  cases  a  year. 

It  is  a  much  more  important  circumstance  that  no  pro- 
vision whatever  is  made  for  questioning  the  decision  of  a 
jury  on    matters   of  fact.      However    unsatisfactory   such  a 

^  Till  the  abolition  of  those  offices  the  Lord  Chief  Justice  of  the  Common 
Pleas,  or  the  Lord  Chief  Baron  of  the  Exchequer,  or  the  Lord  Chief  Justice  of 
the  Queen's  Bench,  was  to  be  one  of  the  judges. 

^  The  writ  of  error  in  Orton's  case,  decided  in  March,  1881,  and  the 
writ  of  error  in  Bradlaugh  v.  R.  in  1878,  are  the  only  writs  of  error  in 
criminal  cases  which  have  been  decided  for  a  considerable  time.  I  could 
never  understand  upon  what  ground  it  was  thought  necessary  to  grant  a 
writ  of  eiTor  in  Orton's  case.  No  one  of  the  thi'ee  courts  before  wmoh  the 
matter  came  felt  the  smallest  doubt  upon  any  of  the  points  raised  in  it. 


POWERS  OF  HOME  SECRETARY.  3^3 

verdict  may  be,  whatever  facts  may  be  discovered  after  the  Chap.  X. 
trial,  which  if  known  at  the  trial  would  have  altered  the 
result,  no  means  are  at  present  provided  by  law  by  which  a 
verdict  can  be  reversed.  All  that  can  be  done  in  such  a  case 
is  to  apply  to  the  Queen  through  the  Secretary  of  State  for 
the  Home  Department  for  a  pardon  for  the  person  supposed 
to  have  been  wrongly  convicted. 

This  is  one  of  the  greatest  defects  in  our  whole  system  of 
criminal  procedure.  To  pardon  a  man  on  the  ground  of  his 
innocence  is  in  itself,  to  say  the  least,  an  exceedingly  clumsy 
mode  of  procedure  ;  but  not  to  insist  upon  this,  it  cannot  be 
denied  that  the  system  places  every  one  concerned,  and  espe- 
cially the  Home  Secretary  and  the  judge  who  tried  the  case 
(who  in  practice  is  always  consulted),  in  a  position  at  once 
painful  and  radically  wrong,  because  they  are  called  upon  to 
exercise  what  really  are  the  highest  judicial  functions  with- 
out any  of  the  conditions  essential  to  the  due  discharge  of 
such  functions.  They  cannot  take  evidence,  they  cannot 
hear  arguments,  they  act  in  the  dark,  and  cannot  explain 
the  reasons  of  the  decision  at  which  they  arrive.  The  evil 
is  notorious,  but  it  is  difficult  to  find  a  satisfactory  remedy. 
The  matter  has  been  the  subject  of  frequent  discussion,  and 
it  was  carefully  considered  by  the  Criminal  Code  Commission 
of  1878 — 9.  I  have  nothing  to  add  to  the  following  obser- 
vations which  occur  in  their  Report  as  to  the  reforms  which 
seem  to  be  required  in  regard  to  the  whole  matter  of  appeals 
in  criminal  cases. 

After  describing  the  different  forms  of  appeal  now  in  use 
much  as  I  have  described  them  above,  though  in  other  words, 
1  the  Report  proceeds  :  "  It  seems  to  us  that  in  order  to  form 
"  a  complete  system  these  various  forms  of  proceeding  ought 
"  to  be  combined.  For  this  purpose  we  propose,  in  the  first 
"place,  to  constitute  a  single  Court  of  Criminal  Appeal 
"closely  resembling  the  Court  for  Crown  Cases  Eeserved, 
"  but  with  two  important  differences.  We  propose  that,  as 
"in  other  courts,  the  minority  should  be  bound  by  the 
"majority.  A  court  composed  of  fifteen  judges  is  incon- 
"  veniently  large.     If  on  a  point  of  importance  a  court  of 

1  Pp.  38—40. 


3^4  PROPOSALS   OF   CRIMINAL  CODK  COMMISSION. 

Cha?.  X.  "  five  should  be  divided,  it  might  be  desirable  that  a  further 
"  appeal  should  be  possible.  We  accordingly  propose  that 
"  the  court  should  have  power  to  permit  an  appeal  to  the 
"  House  of  Lords. 

"We  do  not  interfere  with  the  present  practice  as  to  trials 
"  in  the  Queen's  Bench  Division,  and  we  propose  that  in  the 
"  case  of  such  trials  the  Queen's  Bench  Division  should  be 
"  the  Court  of  Appeal,  and  that  it  should  have  power  to  give 
"  leave  to  appeal  to  the  House  of  Lords. 

"  As  to  the  power  to  appeal  and  the  cases  in  which  an 
"  appeal  should  lie,  the  Draft  Code  proposes  to  make  consider- 
"  able  changes  in  the  existing  law  as  regards  both  matter  of 
"  law  and  matter  of  fact.  With  regard  to  matter  of  law,  the 
"judge  has  at  present  absolute  discretion  as  to  reserving  or 
"  not  reserving  questions  which  arise  at  the  trial  and  do  not 
"  appear  on  the  record.  This  we  think  ought  to  be  modified. 
"  We  propose  accordingly  that  the  judge  shall  be  bound  to 
"  take  a  note  of  such  questions  as  he  may  be  asked  to 
"  reserve,  unless  he  considers  the  application  frivolous.  If 
"  he  refuses  to  grant  a  case  for  the  Court  of  Appeal,  the 
"  Attorney-General  may  in  his  discretion  grant  leave  to  the 
"  person  making  the  application  to  move  the  Court  of  Appeal 
"  for  leave  to  appeal,  and  the  court  may  direct  a  case  to  be 
"  stated.  The  court  on  hearing  the  case  argued  may  either 
"  confirm  the  ruling  appealed  from,  or  grant  a  new  trial,  or 
"  direct  the  accused  to  be  discharged  ;  in  a  word,  it  may  act 
"  in  all  respects  as  in  a  civil  action  when  the  question  is  one 
"  of  law,  and  that  on  the  application  of  either  side.  This  in 
"  some  ways  is  favourable,  and  in  others  unfavourable,  to 
"  accused  persons.  By  the  existing  law  the  prisoner's  right 
"  to  appeal  on  a  point  of  law  is,  generally  speaking,  subject 
"  to  the  absolute  discretion  of  the  judge ;  but  if  he  is  per- 
"  mitted  to  appeal,  and  if  the  court  above  decides  in  his 
"  favour,  the  conviction  is  quashed,  although  in  a  civil  case 
"  he  would  gain  nothing  but  a  right  to  a  new  trial.  Under 
"  section  542  the  prisoner  would  be  able  to  appeal,  with  the 
"  leave  of  the  Attorney-General,  against  the  will  of  the 
"judge,  but  if  he  succeeded  he  would  in  many  cases  only 
"  obtain  a  new  trial.     If  the  matter  appealed  upon  was  a 


PROPOSALS  OP  CRIMINAL   CODE  COMMISSION.  315 

"  mere  irregularity,  immaterial  to  the  merits  of  the  case,  the    chap.  X. 

"  Court  of  Appeal  would  have  power  to  set  it  right.     All       

"this  Would  diminish  the  value  of  the  right  of  appeal  to 
"  prisoners,  though  it  would  increase  its  extent.  It  must  be 
"  observed,  too,  that  the  right  of  appeal  on  questions  of  law 
"  is  given  equally  to  both  sides.  The  Commissioners  as  a 
"  body  express  no  opinion  on  the  expediency  of  this.  If  it 
"  is  thought  proper  to  confine  the  right  to  the  accused,  the 
"  alteration  of  a  few  words  in  the  section  would  affect  that 
"  object.  In  dealing  with  appeals  upon  matter  of  law  little 
"  is  wanted  beyond  an  adaptation  of  the  existing  law. 

"It  is  more  difficult  to  provide  in  a  satisfactory  way  for  an 
"  appeal  upon  matters  of  fact.  It  is  obvious  that  the  only 
"  practicable  means  of  giving  such  an  appeal  is  by  permitting 
"  convicted  persons  to  move  under  certain  circumstances  for  a 
"  new  trial,  either  on  the  ground  that  the  verdict  was  against 
"  the  evidence,  or  on  the  ground  that  the  verdict  has  been 
"  shown  to  be  wrong  by  facts  discovered  subsequently  to  the 
"  trial.  If  the  ground  on  which  a  new  trial  is  sought  for  is 
"  that  the  verdict  was  against  the  evidence,  the  case  is  com- 
"  paratively  simple.  In  such  cases  the  judge  before  whom 
"  the  case  was  tried  ought  to  have  power  to  give  leave  to 
"  the  convicted  person  to  apply  to  the  Court  of  Appeal  for  a 
"  new  trial.  If  the  convict  had  an  absolute  right  to  make 
"  such  an  application,  it  would  be  made  whenever  the  convict 
"  could  afford  it.  By  making  the  leave  of  the  judge  who 
"  tried  the  case  a  condition  for  such  an  application,  such 
"  motions  would  be  practically  confined  to  cases  in  which  the 
"judge  thought  the  jury  had  been  harsh  towards  the  prisoner. 
"  However,  when  the  application  was  made  the  Court  of 
"  Appeal  could  deal  with  it  as  in  civil  cases. 

"  A  much  more  difficult  question  arises  in  relation  to  cases 
"  which  occur  from  time  to  time,  where  circumstances  throw- 
"  ing  doubt  on  the  propriety  of  a  conviction  are  discovered 
"  after  the  conviction  has  taken  place.  It  these  cases  it  was 
"provided  by  ^the  bill  that  the  Secretary  of  State  should 
"  have  power  to  give  leave  to  the  person  convicted,  to  apply 

^  This  was  a  Draft  Code  prepared  by  me,  and  introduced  into  Parliament 
hy  Sir  Jolin  Holker  in  1878. 


3l6  PROPOSALS  OP  CRIMINAL  CODE  COMMISSION. 

Chap.  X.  "  to  the  Court  of  Appeal  for  a  new  trial.  Upon  the  fuUest 
''  consideration  of  the  subject  we  do  not  think  that  such  an 
"  enactment  would  be  satisfactory.  In  such  a  case  the  Court 
"  of  Appeal  must  either  hear  the  new  evidence  itself,  or  have 
"  it  brought  before  it  upon  affidavit.  In  the  former  case  the 
"  court  would  substantially  try  the  case  upon  a  motion  for  a 
"new  trial,  and  this  is  opposed  to  the  principle- of  trial  by 
"jury.  In  the  latter  case  they  would  have  no  materials  for 
"  a  satisfactory  decision.  It  is  impossible  to  form  an  opinion 
"on  the  value  of  evidence  given  on  affidavit  and  ex  parte 
"until  it  has  been  checked  and  sifted  by  independent  inquiry. 
"  Such  duties  could  not  be  undertaken  by  a  Court  of  Appeal. 
"  If  the  Secretary  of  State  gave  leave  to  a  convict  to  move 
"  the  Court  of  Appeal  for  a  new  trial  on  evidence  brought 
"  before  the  court  by  affidavit,  the  only  well-ascertained  fact 
"  before  the  court  would  be  that  the  Secretary  of  State 
"  considered  that  there  were  grounds  for  such  an  application. 
"  This  would  make  it  difficult  to  refuse  the  application.  The 
"  Secretary  of  State  would  be  responsible  only  for  granting 
"leave  to  move  the  court  for  a  new  trial.  The  court,  in 
"  granting  a  new  trial,  would  always  in  fact  take  into  account 
"  the  opinion  indicated  by  the  Secretary  of  State's  conduct. 
"  It  must  also  be  remembered  that  a  court  of  justice  in  de- 
"  ciding  upon  such  applications  would,  in  order  to  avoid 
"great  abuses,  be  obliged  to  bind  itself  by  strict  rules, 
"  similar  to  those  which  are  enforced  in  applications  for  new 
"trials  in  civil  cases  on  the  ground  of  newly-discovered 
"evidence.  Such  applications  cannot  be  made  at  all  after 
"the  lapse  of  a  very  short  interval  of  time,  and  are  not 
"  granted  if  the  applicant  has  been  guilty  of  any  negligence  ; 
"  and  this  stringency  is  essential  to  the  due  administration  of 
"justice  and  to  the  termination  of  controversies.  It  would 
"  be  unsatisfactory  to  apply  such  rules  to  applications  for  new 
"trials  in  criminal  cases.  No  matter  at  what  distance  of 
"  time  the  innocence  of  a  convicted  person  appeared  probable, 
"  — no  matter  how  grossly  a  man  (suppose  under  sentence  of 
"  death)  had  mismanaged  his  case,  it  would  be  impossible  to 
"  refuse  him  a  fresh  investigation  on  the  ground  of  such  lapse 
"of  time  or  mismanagement.     Cases  in  which,  under  some 


PROPOSALS  OF  CRIMINAL   CODE  COMMISSION.  317 

"  peculiar  state  of  facts,  a  miscarriage  of  justice  takes  place.   Chap.  X. 
"  may  sometimes  though  rarely  occur ;  but  when  they  occur  it 
"  is  under  circumstances  for  which  fixed  rules  of  procedure 
"  cannot  provide. 

"Experience  has  shown  that  the  Secretary  of  State  is  a 
"  better  judge  of  the  existence  of  such  circumstances  than  a 
"  court  of  justice  can  be.     He  has  every  facility  for  inquiring 
"  into  the  special  circumstances ;  he  can  and  does,  if  neces- 
"  sary,  avail  himself  of  the  assistance  of  the  judge  who  tried 
"  the  case,  and  of  the  law  officers.     The  position  which  he 
"  occupies  is  a   guarantee   of  his   own  fitness   to  form  an 
"  opinion.     He  is  fettered  by  no  rule,  and  his  decision  does 
"  not  form  a  precedent  for  subsequent  cases.     We  do  not  see 
"  how  a  better  means  could  be  provided  for  inquiry  into  the 
"  circumstances  of  the  exceptional  cases  in  question.     The 
"  powers  of  the  Secretary  of  State,  however,  as  to  disposing 
"  of  the  cases  which  come  before  him  are  not  as  satisfactory 
"  as   his  power  of  inquiring  into  their  circumstances.     He 
"  can  advise  Her  Majesty  to  remit  or  commute  a  sentence; 
"  but,  to  say  nothing  of  the  inconsistency  of  pardoning  a  man 
"  for  an  offence  on  the  ground  that  he  did  not  commit  it, 
"  such  a  course  may  be  unsatisfactory.     ^  The  result  of  the 
"  inquiries  of  the  Secretary  of  State  may  be  to  show,  not 
"  that  the  convict  is  clearly  innocent,  but  that  the  propriety 
"  of  the  conviction  is  doubtful ;  that  matters  were  left  out  of 
"  account  which  ought  to  have  been  considered ;  or  that  too 
"  little  importance  was  attached  to  a  view  of  the  case  the 
"  bearing  of  which  was  not  sufficiently  apprehended  at  the 
"  trial ;  in   short,    the   inquiry   may  show  that  the  case  is 
"  one;  on  which  the  opinion  of  a  second  jury  ought  so  be 
"  taken,     If  this  is  the  view  of  the  Secretary  of  State,  he 
"  ought,  we  think,  to  have  the  right  of  directing  a  new  trial 
"on  his  own  undivided  responsibility.      Such  a  power  we 
"  accordingly  propose  to  give  him  by  section  545. 

"  With  respect  to  the  materials  to  be  laid  before  the  Court 
"  of  Appeal  we  propose  to  abolish  the  present  record.  It 
"  is  extremely  technical   and   gives  little  real  information. 

^  As  an  illustration  of  these  remarks,  see  the  case  of  Smethurst  at  the  end  of 
Vol.  III. 


3^8  PROPOSALS  OF  CRIMINAL   CODE  COMMISSION. 

Chap.  X.  "  Instead  of  it,  we  propose  that  a  book  to  be  called  the  Crown 
"  Book  should  be  kept  by  the  officer,  which  should  record  in 
"  common  language  the  proceedings  of  the  court.  In  prac- 
"  tice  the  record  is  hardly  ever  made  up,  and  if  it  is  necessary 
"  to  make  it  up,  the  officer's  minute-book  affords  the  only 
"  materials  for  doing  so.  Our  proposal  is  practically  to 
"  substitute  the  original  book  for  the  record  which  is  made 
"  up  from  it,  and  is  merely  a  technical  expansion  of  the 
"  original. 

"  We  also  propose  that  the  Court  of  Appeal  should  have 
"power  to  call  for  the  judge's  notes,  and  to  supply  them  if 
"  they  are  considered  defective  by  any  other  evidence  which 
"  may  be  available, — a  shorthand  writer's  notes  for  instance. 
"  We  consider  the  statutory  recognition  of  the  duty  of  the 
"  judge  to  take  notes  as  a  matter  of  some  importance.  Upon 
"  the  subject  of  appeal  there  is  not  much  difference  between 
"  the  Draft  Code  and  the  Bill.  The  provisions  of  the  former 
"  are  more  simple." 


HISTORY  OF   CRIMINAL  TRIALS.  "  3I9 


CHAPTER  XI. 

HISTORY   OF   CRIMINAL   TRIALS   IN    ENGLAND   FROM 

1554—1760. 

In  the  earlier  chapters  I  have  given  the  history  of  each  of  Chap.  XI. 
the  steps  in  the  prosecution  of  criminals  from  the  first  mo- 
ment  when  a  person  is  suspected  down  to  the  final  conclusion 
of  the  proceedings.  I  have,  however,  intentionally  omitted 
aU  but  the  most  cursory  notice  of  the  actual  trial  by  which 
the  guilt  or  innocence  of  the  suspected  person  is  determined. 
In  attempting  to  relate  its  history  I  shall  adopt  a  somewhat 
different  method  from  that  which  I  have  hitherto  followed. 
Instead  of  treating  separately  the  history  of  the  opening 
speech  of  the  counsel  for  the  Crown,  the  prisoner's  defence, 
the  examination  of  the  witnesses,  and  the  judge's  summing 
up,  I  shall  give  an  account'  of  characteristic  trials  or  groups 
of  trials  from  the  reign  of  Queen  Mary,  when  the  earliest 
trials  of  which  we  have  detailed  reports  took  place,  till  the 
reign  of  George  III.,  when  the  system  now  in  force  was 
established  in  all  its  maia  features. 

It  may  be  said  that  the  matter  of  which  I  now  propose  to 
treat  belongs  rather  to  history  proper  than  to  law ;  but  the 
great  interest  of  English  criminal  law  lies  in  the  circum- 
stance that  it  has  been  closely  connected  with  several  of 
the  turning-points  of  English  constitutional  history,  and  the 
proceedings  have  been  recorded  in  the  State  Trials  with 
such  completeness  and  authenticity  as  to  give  to  ^that  great 

*  The  State  Trials  contain  thirty- three  volumes,  royal  8vo.,  averaging,  I 
suppose,  from  600  to  700  pages,  in  double  column  and  small  type.  The  col- 
lection extends  from  the  earliest  times  to  the  year  1822,  the  last  trials  reported 
being  those  of  Thistlewood  and  his  associates  for  the  Oato  Street  Conspiracy.    I 


320  BAGA   DE   SECEETIS. 

Chap.  XI.  collection  the  character  of  a  judicial  history  of  England.  The 
principal  groups  of  trials  of  which  accounts  have  been  pre- 
served illustrate  the  gradual  development  of  the  system 
which  at  present  exists.  They  will  he  found  to  throw 
light  on  every  part  of  it. 

One  large  class  of  cases,  namely,  trials  for  heresy  and 
other  ecclesiastical  offences,  I  pass  over  for  the  present,  as  I 
propose  to  notice  some  of  them  in  a  separate  chapter.  I  may 
observe,  however,  that  the  reports  of  some  of  them  are  the 
earliest  detailed  reports  which  we  possess  of  any  criminal 
proceedings. 

BAGA  DE  SECRETIS. 

By  way  of  introduction  to  the  first  group  of  trials  of  which 
we  have  detailed  reports,  I  will  say  a  few  words  of  the  traces 
which  still  exist  of  those  which  occurred  during  the  preceding 
seventy-seven  years,  namely,  between  1477  and  1544.  There 
are  no  reports,  properly  so  called,  of  criminal  trials  during 
this  period,  but  a  remarkable,  though  in  some  respects  dis- 
appointing, document  exists,  which  I.  refer  to  on  account 
rather  of  its  curiosity  than  on  account  of  any  positive  inform- 
ation upon  criminal  procedure  which  it  contains.  It  is  a 
translation  of  part  of  the  contents  of  the  Baga  de  Secretis  for 
the  reigns  of  Edward  IV.,  Henry  VII.,  and  Henry  VIII. 
The  contents  of  tliis  bag  consist  of  indictments  for  a  great 
variety  of  offences  tried  in  the  Court  of  King's  Bench  in 
the  years  mentioned,  the  earliest  occurring  19th  May,  1477, 
and  the  latest  13th  January,  1547.  In  our  own  times  the 
names  of  the  witnesses  always  appear  on  the  back  of  the 
bill,  but  this  practice  was  not  then  adopted,  and  the  docu- 
ments referred  to  contain  no  other  indication  of  the  nature  of 
the  evidence,  or  of  the  management  of  the  trial,  than  can  be 

think  no  more  important  addition  to  tbe  materials  for  the  history  of  our  own 
times  could  be  made  than  a  continuation  to  the  present  day.  The  great  trials 
which  have  occurred  during  the  last  sixty  years  have  been  unequalled  in  ex- 
cellence, and,  to  say  the  least,  have  been  equal  in  interest  to  any  of  those  of 
former  times.  The  trials  of  the  Bristol  rioters,  the  trial  of  O'Connell  in 
1844,  the  trials  for  treason-felony  in  England  and  Ireland  in  1848,  many 
of  the  trials  for  conspiracy,  the  trial  of  Bernard  for  the  Orsini  plot,  the 
various  proceedings  against  Governor  Eyre,  the  Fenian  trials  subsequent 
to  1866,  and  very  many  more,  are  parts,  not  only^  of  the  legal,  but  also 
of  the  political  and  generaL  history  of  England,  whicli,  ought  to  be  cajefally 


INDICTMENTS   UNDER   HENRY   VII.   AND   HENRY   VIII.  321 

found  in  the  terms  of  the  indictments.  These,  however,  are  Chap.  XI. 
not  quite  so  barren  as  such  documents  would  be  at  present. 
Some  of  them  are  so  detailed  and  circumstantial  as  to  show 
that  evidence  must  have  been  carefully  taken  before  the 
indictment  was  sent  before  the  grand  jury,  and  the  contents 
of  these  are  very  curious.  For  instance,  part  of  ^  the  indict- 
ment against  Lord  Warwick  for  high  treason,  by  conspiring 
with  Perkin  Warbeck  in  the  Tower  against  Henry  VII.,  runs 
as  follows : — "  The  Earl  and  Cleymound,  on  the  said  2nd 
"  August,  14  Henry  VII.,  being  in  the  chamber  of  the  Earl 
"  in  the  Tower  of  London,  the  said  Cleymound,  in  order  to 
"  comfort  the  said  Peter,  then  being  in  a  chamber  in  the 
"  Tower  under  their  chamber,  by  assent  of  the  said  Earl 
"  knocked  upon  the  vault  of  the  said  chamber  to  the  intent 
"  that  the  said  Peter  might  hear  the  Earl  and  Cleymound,  and 
"  Cleymound  said  to  the  said  Peter,  '  Perkin,  be  of  good 
"  '  cheer  and  comfort,'  and  further  showed  to  him  that  he 
"  had  a  certain  letter,  directed  to  the  said  Peter,  which  he 
"  had  received  from  one  James,  a  clerk  of  Flanders,  which 
"  letter  he,  Cleymound,  would,  as  he  promised,  deliver  to  the 
"  said  Peter  the  following  day,"  and  so  on,  with  many  further 
details. 

^The  indictment  against  the  Duke  of  Buckingham, 
13th  May,  1521,  is  even  more  detailed  and  circumstantial. 
Here  is  a  specimen :— "  The  Duke,  in  order  to  carry  his  inten- 
"  tion  "  (to  depose  the  King)  "  into  effect  did,  on  the  24th 
"  day  of  April,  4  Henry  VIII.,  lead  one  John  Delacourt,  late 
"  of  Thornbury,  in  the  county  of  Somerset,  to  one  Nicholas 
"  Hopkins,  a  monk  of  the  Carthusian  Priory  of  Henton,  who 
"  pretended  to  have  knowledge  of  future  events  by  certain 
"  revelations  which  he  feigned  to  have  had,  in  order  that  the 
"  Duke  might  have  further  knowledge  thereof  from  the  said 
"  Nicholas."  It  then  proceeds  to  set  out  the  particulars  of 
various  negotiations  between  the  Duke  and  Father  Nicholas. 
There  is  one  case  in  which  it  is  still  possible  to  compare  the 
indictment  with  the  evidence  given  at  the  trial.  This  is  the 
case  of  Sir  Thomas  More,  who  was  tried  on  the  1st  July, 
1535,  for  denying  the  King's  supremacy.  A  report  of  the 
1  Saga  de  Sec.  p.  216.  ^  lb.  -p-  230. 

VOL.   I.  "f 


32  2  INDICTMENT   AND   EVIDENCE   AGAINST   MORE. 

Chap.  XI.  trial  itself  is  given  in  the  State  Trials.  It  is  taken  principally 
from  the  Life  of  Sir  Thomas  More  by  his  great-grandson, 
but  it  contains  some  matter  which  is  not  to  be  found  either 
in  that  work  or  in  Hall's  Chronicle,  or  in  Lord  Herbert's 
Life  of  Henry  VIII.,  which  works  are  also  referred  to.  In 
particular  the  account  in  the  State  Trials  says  (I  know  not 
who  is  supposed  to  be  speaking,  but  I  suppose  More, 
the  great-grandson)  :— "  The  indictment  was  very  long, 
"  but  where  to  procure  a  copy  of  it  I  could  never  learn ; 
"  it  is  said  in  general  it  contained  all  the  crimes  that 
"  could  be  laid  to  the  charge  of  any  notorious  malefactor, 
"  and  Sir  Thomas  professed  it  was  so  long  that  he  could 
"  scarce  remember  the  third  part  of  what  was  objected 
"  therein  against  him."  To  judge  from  the  abstract,  which 
fills  a  folio  page,  the  indictment  was  not  at  all  long.  It 
began  by  setting  forth  the  substance  of  26  Hen.  8,  c.  1, 
which  enacts  that  Henry  VIII.  and  his  successors,  kings 
of  this  realm,  "  shall  be  taken,  accepted,  and  reputed  the 
"  only  supreme  head  on  earth  of  the  Church  of  England."  It 
then  sets  out  the  substance  of  c.  13  of  the  same  statute,  which 
makes  it  high  treason  "  if  any  person  maliciously  hath  wish  or 
"  desire,  by  words  or  writing,  to  deprive  the  king  of  his 
"  dignity,  title,  or  name  of  his  royal  estate."  It  then  avers 
that  More,  traitorously  imagining  and  attempting  to  deprive 
the  king  of  his  title  as  supreme  head  of  the  Church,  did, 
when  examined  before  Cromwell  and  others,  whether  he 
accepted  the  king  as  supreme  head  on  earth  of  the  Church 
of  England,  refuse  to  answer  directly,  saying  :  "  I  wiU  not 
"  meddle  with  any  such  matters,  for  I  am  fully  determined -to 
"  serve  God,  and  to  think  upon  his  passion,  and  my  passage 
"  out  of  this  world." 

Further,  it  sets  out  a  letter  written  by  More  to  Fisher,  and 
a  statement  made  by  More  upon  examination  at  the  Tower, 
in  each  of  which  he  said  that  the  statute  was  like  a  two- 
edged  sword,  that  if  he  answered  one  way  he  should  offend 
his  conscience,  and  if  he  answered  the  other,  lose  his  life. 

Lastly,  it  sets  out  a  conversation  between  More  and  Rich, 
the  king's  Solicitor-General,  in  which,  after  some  introductory 
matter,  More  said  that  if  a  statute  made  the  king  supreme 


CASE  OF  MORE.  B^J 

head  of  tlie  Church,  the  subject  cannot  be  obliged,  because  Chap.  XI. 
his  consent  cannot  be  given  for  that  in  Parliament.  In  the 
report  in  the  State  Trials  it  is  said  that  Rich  swore  to  the 
conversation  as  laid  in  the  indictment.  To  this  it  is  said  Sir 
Thomas  replied:  "If  I  were  a  man,  my  lords,  that  had  no  regard 
"  to  my  oath,  I  had  had  no  occasion  to  be  here  at  this  time,  as 
"  is  well  known  to  everybody,  as  a  criminal ;  and  if  this  oath, 
"  Mr.  Rich,  which  you  have  taken  be  true,  then  I  pray  I  may 
"  never  see  God's  face,  which,  were  it  otherwise,  is  an  impre- 
"  cation  I  would  not  be  guilty  of  to  gain  the  whole  world." 
The  account  proceeds :  "  More,  having  recited  in  the  face  of 
"  the  court  all  the  discourse  they  had  together  in  the  Tower 
"  as  it  truly  and  sincerely  was,"  added  bitter  reproaches  against 
Rich,  saying,  amongst  other  things :  "  You  always  lay  under 
"  the  odium  of  a  very  lying  tongue,  a  great  gamester,  and  of 
"  no  good  name  and  character  either  here"  (in  Westminster 
Hall)  "  or  at  the  Temple."  More  was  convicted  and  executed. 
^  Lord  Campbell  has  spoken  in  terms  of  almost  passionate 
indignation  of  this  trial.  He  adopts  absolutely,  and  with  no 
evidence  whatever,  More's  statement  that  Rich  committed 
perjury.  It  is  impossible  to  have  any  decided  opinion  as  to 
the  details  of  a  conversation  held  nearly  350  years  ago  ;  but 
■even  assuming  the  correctness  of  the  partial  and  unlawyerlike 
report  of  the  proceedings  which  remains,  there  are  some 
reasons  to  think  that  Rich's  evidence  was  substantially 
"true.  First,  the  reporter  does  not  give  More's  own  account 
of  the  conversation.  This  looks  as  if  it  differed  only  in 
detail  from  Rich's.  Secondly,  More's  oaths  and  his 
vehemence  against  Rich  look  as  if  Rich  had,  at  all  events, 
told  some  truth.  Thirdly,  there  can  be  no  doubt  that 
More  did  think  the  Act  of  Supremacy  wrong,  and  beyond 
-the  competency  of  Parliament,  for  in  arrest  of  judgment 
he   said   that  the  indictment  "is  founded  upon  an  Act  of 

'^  Campbell's  Chancellors,  ii.  55 — SZ.  This  deliglitful  writer,  and  most 
powerful  and  impressive  of  judges,  seems  to  me  to  be  in  his  biographies  as 
impressible  by  topics  of  prejudice  as  a  common  juryman.  More's  genius  and 
the  beauty  of  his  character  make  it  impossible  for  Lord  Campbell  to  see 
anything  but  perjury  and  oppression  in  his  trial ;  yet,  after  all,  why  is  it 
unlikely  that  he  should  have  unintentionally  expressed  an  opinion  which 
he  held  so  strongly  that  the  terms  in  which  he  moved  in  arrest  of  judgment 
were  an  act  of  high  treason  within  the  statute  ? 

Y    2 


324  CASE  OF  ANNE  BOLEYN. 

CHAr.xi.  "Parliament  directly  repugnant  to  the  laws  of  God  and  his 
"  Holy  Church."  Fourthly,  More  laid  great  stress  upon  the 
argument  that,  even  if  Eich  spoke  the  truth,  "  it  cannot  in 
"  justice  be  said  that  they  were  spoke  maliciously."  As  far 
as  the  law  goes,  I  think  the  word  "  malicious  "  in  the  statute 
could  mean  no  more  than  seriously — meaning  what  was  said — 
the  meaning  being  regarded  by  the  legislature  as  in  itself  bad. 
Whether  it  was,  under  all  the  circumstances  of  the  time,  expe- 
dient to  make  the  denial  of  the  king's  supremacy  high  treason 
is  a  question  on  which  I  have  no  opinion  for  want  of  study ; 
but  I  cannot  see  that  More's  trial  was  in  itself  unfair,  though 
no  doubt  it  was  grossly  indecent  that  the  principal  witness 
should  also  act  as  counsel  for  the  Crown,  as  Lord  Campbell 
says  Rich  did,  though  the  fact  is  not  mentioned  in  the  report 
to  which  he  refers. 

^  The  indictment  against  Anne  Boleyn  is  more  concise,  but 
the  charges  in  it  are  specific  and  pointed,  though  ^  they  do 
not  enter  into  details.  They  alleged  that  she  committed 
adultery  with  five  specified  persons  on  five  separate  occasions, 
time  and  place  being  assigned  in  each  instance.  As  to  the 
proceedings  at  the  trial  itself,  nothing  appears  beyond  a 
formal  record  of  the  verdict.  The  indictments  against 
Katharine  Howard  and  her  various  adulterers  enter  into 
greater  detail.  There  are  six  indictments,  relating  to  offences 
committed  in  Yorkshire,  Middlesex,  Lincolnshire,  the  City  of 
Lincoln,  Surrey,  and  Kent,  respectively.  One  only  (the 
Yorkshire  indictment)  is  fully  abstracted.  It  enters  into  a 
certain  amount  of  detail,  especially  as  to  Lady  Rochford's 
acting  as  a  "  common  procuress  "  between  them. 


I.— 1554— 1637. 

The  first  group  of  trials  which  I  shall  consider  are  those 
which  took  place  betweeen  1554  and  1637,  the  first  being  the 

Baga  de  Sec.  p.  244. 
^  I  have  not  referred  to  the  original,  but  the  iibstraot  suggests  a  possibility 
that  it  may  contain  some  details  omitted  from  the  abstract  from  regard  to 
decency.  It  says  that  the  Queen  "did  falsely  and  traitorously  procure,  by 
"means  of  indecent  language,  gifts,  and  othet  acts  therein  stated,  divers  of 
"  the  King's  doctors  and  familiar  servants  to  become  her  adulterers." 


TRIALS  BETWEEN    1 5 54  AND    1637.  325 

trial  of  Sir  Nicholas  Throckmorton,  and  the  last  being  the  Chap.  XI. 

proceedings  in  the  Star  Chamber  which  led  to  its  abolition.       

1  The  report  of  the  trial  of  Throckmorton  is  the  earliest 
which  is  full  enough  to  throw  much  real  light  on  the  pro- 
cedure which  then  prevailed.  All  the  trials  which  took  place 
during  this  period  seem  to  have  followed  much  the  same 
course,  and  to  have  been  conducted  in  the  same  manner. 

The  cases  of  which  reports  remain  were,  for  the  most  part, 
of  great  political  importance,  and  were  accordingly,  during 
the  early  stages  of  the  procedure,  under  the  charge  not  of  the 
justices  of  the  peace,  but  of  the  Privy  Council,  and  especially 
of  the  judges  who  were  members  of  it,  and  the  law  officers 
of  the  Crown.  The  suspected  person,  having  been  arrested, 
was  kept  in  confinement  more  or  less  close  according  to  cir- 
cumstances, and  was  examined  in  some  cases  before  the  Privy 
Council,  in  some  cases  by  the  judges,  and  in  some  instances 
by  torture.  The  evidence  of  other  persons,  and  more 
especially  the  evidence  of  every  one  who  was  suspected  of 
being  an  accomplice,  was  taken  in  the  same  manner.  When 
the  case  was  considered  ripe  for  trial  the  prisoner  was 
arraigned  and  the  jury  sworn,  after  which  the  trial  began  by 
the  speeches  of  the  counsel  for  the  Crown.  There  were  usually 
several  counsel,  who,  in  intricate  cases,  divided  the  different 
parts  of  the  case  between  them.  The  prisoner,  in  nearly 
every  instance,  asked,  as  a  favour,  that  he  might  not  be 
overpowered  by  the  eloquence  of  counsel  denouncing  him  in 
a  set  speech,  but,  in  consideration  of  the  weakness  of, his 
memory,  might  be  allowed  to  answer  separately  to  the  dif- 
ferent matters  which  might  be  alleged  against  him.  This 
was  usually  granted,  and  the  result  was,  that  the  trial  became 
a  series  of  excited  altercations  between  the  prisoner  and  the 
different  counsel  opposed  to  him.  Every  statement  of  counsel 
operated  as  a  question  to  the  prisoner,  and  indeed  they  were 
constantly  thrown  into  the  form  of  questions,  the  prisoner 
either  admitting  or  denying  or  explaining  what  was  alleged 
against  him.  The  result  was  that,  during  the  period  in  ques- 
tion, the  examination  of  the  prisoner,  which  is  at  present 
scrupulously,  and  I  think  even  pedantically,  avoided,  was  the 
1  1  St.  Tr.  395. 


326  THROCKMORTON'S   CASE. 

Chap.  XI.  very  essence  of  the  trial,  and  Ms  answers  xegulated  the  pro- 
ductiorx  of  the  evidence ;  the  whole  trial,  in  fact,  was  a  long 
argument  between  the  prisoner  and  the  counsel  for  the  Crown, 
in  which  they  questioned  each  other  and  grappled  with 
each  other's  arguments  with  the  utmost  eagerness  and 
closeness  of  reasoning.  The  judges  occasionally  took  part  in 
the  discussion ;  but,  in  the  main,  the  debate  was  between  the- 
parties.  As  the  argument  proceeded  the  counsel  would 
frequently  allege  matters  which  the  prisoner  denied  and 
called  upon  thesm  to  prov.e.  The  proof  was  usually  given 
by  reading  depositions,  confessions  of  accomplices,  letters^ 
and  the  like,;  and  this  occasioned  frequent  demands  by  the 
prisoner  to  have  his  "  accusers,"  i.e.  the  witnesses  against 
him,  brought  before  him  face  to  face,  though  in  many  cases 
the  ipiisonejs  appear  to  have  been  satisfied  with  the 
depositions.  When  the  matter  had  been  fully  inquired  into 
by  this  searching  discussion,  the  presiding  judge  "repeated"" 
or  summed  up  to  the  jury  the  matters  alleged  against  the 
prisoner,  and  the  answers  given  by  him ;  and  the  jury  gave 
their  verdict. 

I  will  give  an  account  of  a  few  of  the  most  remarkable 
trials  as  specimens. 

Sif  JST.  Throckmorton  was  tried  for  high  treason  in  1554, 
^the  .charge  against  him  being  that  he  compassed  and 
imagined  the  Queen's  death,  and  levied  war  against  her,  and 
adhered  to  her  enemies ;  the  alleged  fact  on  which  the  charge 
was  founded  being  a  conspiracy  with  Wyat  before  his  rising. 

The  trial  took  place  on  the  I7th  April,  1554.  2  The  Court 
sat  probably  from  8  AM,  till  2,  or,  ,at  any  rate,  some  time  before 
3  Pja.,  as  at  their  rising  they  adjourned  till  3,  and  the  jury 
gave  their  verdict  at  5..  The  trial  would  seem  accordingly 
to  have  lasted  altogether  for  about  six  hours.  It  consisted 
almost  entirely  of  a  verbal  duel  between  Throckmorton  and 
the  counsel  for  the  Crown,  namely,  Serjeant  Stanford,  who, 
I  suppose,  may  have  been  the  anthor  of  Stanford's  Meas  of  the 
Crmn,  and  OrifiSn,  the  Attorney-General.    ^  Stanford  took  by 

1  The  copy  of  tlie  indictment  is  Tilery  imperfect.  •  1  St.  Tr.  p.  669. 

2  In  Fortescue's  time  the  judges  usually  sat  from  8  to  11. 

3  He  was  probably  the  Prime  Seijeant,  who,  if  there  were  such  a  personage- 


THROCKMORTON  S   CASE.  327 

far  the  most  conspicuous  part  in  the  proceedings.  He  began  Chap.  xi. 
by  asking  Throckmorton  if  he  had  not  sent  Winter  to  Wyat  ' 
in  Kent  to  confer  about  taking  the  Tower  of  London 
and  about  Wyat's  rising  ?  Throckmorton  said  he  had  told 
Winter  that  Wyat  wanted  to  speak  to  him  ;  but  that  he  said 
nothing  on  the  matters  stated,  and  challenged  Stanford  to 
prove  what  he  alleged.  Stanford  read  Winter's  "  confession," 
and  offered  to  call  Winter  to  swear  to  it.  Throckmorton  said 
that,  for  the  sake  of  argument,  he  would  admit  the  "con- 
"  fession  "  to  be  true,  and  pointed  out  that  certain  parts  of  it 
were  highly  favourable  to  him,  and  that  no  part  of  it  showed 
anything  criminal  on  his  part.  Some  matters  he  explained  in 
answers  to  questions  from  the  judges  and  the  Attorney - 
General. 

Stanford  then  read  the  confession  of  Cuthbert  Vaughan, 
which,  if  true,  proved  that  Throckmorton  had  given  Vaughan 
much  information  as  to  the  designs  of  Wyat's  confederates. 
The  Attorney-General  offered  to  produce  Vaughan  to  swear 
to  his  confession.  To  which  Throckmorton  replied,  "  He  that 
"  hath  said  and  lied  will  not,  being  in  this  case  "  {i.e.,  under 
sentence  of  death),  "  stick  to  swear  and  he."  Vaughan,  how- 
ever, was  called,  swore  to  the  truth  of  his  confession,  and,  in 
answer  to  a  question  from  Throckmorton,  said  he  was  only  a 
common  acquaintance,  and  that  Wyat  had  given  him  a  letter 
of  introduction  to  Throckmorton.  Upon  this  Throckmorton 
said,  "  J£  you  have  done  with  Vaughan,  my  lord,  I  pray  you 
"give  me  leave  to  answer."  The  Chief  Justice  replied, 
"  Speak,  and  be  short."  Throckmorton  thereupon  insisted 
on  the  improbability  of  his  placing  so  much  confidence  in  a 
common  acquaintance,  and  appealed  to  Sir  E.  Southwell  (one 
of  the  Commissioners  by  whom  he  was  tried,  and  before 
whom,  as  a  Privy  Councillor,  Vaughan  had  been  examined) 
to  confirm  him  in  saying  that  Vaughan  had  varied  in  his 
evidence,  and  in  particular  that  he  had  vouched  a  witness 
who  had  not  been  examined  and  a  document  which  had 
never  been  produced.  He  also  insisted  that  Vaughan  ought 
not  to  be  beheved,  because  his  only  hope  of  escape  from  his 

in  these  days,  would  take  precedence  of  the  law  officers.     In  most  of  the 
cases  referred  to  the  Prime  Serjeant  is  leading  counsel  for  the  prosecution. 


3-2^3  Throckmorton's  case. 

Chap.  XI.   own  sentence  of  death  was  to  accuse  some  one  else.     The 
judges  hereupon  asked  if  he  meant  to  say  that  Vaughan's 
deposition    was    totally    false.       Thereupon    Throckmorton 
admitted   that  much   of  it   was   true ;   but  he   denied  the 
specially  damaging  parts  of  it,  and  explained  a  variety  of 
matters  which  were  specifically  pointed  out  to  him.     Throck- 
morton's own  "  confession  "  was  then  read  by  Stanford.     It 
admitted  in  substance  that  he  had  discussed  with   several 
persons  the  scheme  of  the  marriage  between  Queen  Mary  and 
Philip  II.,  of  which  he  and  they  strongly  disapproved ;  but  it 
went  no  further.     A  deposition  of  the  Duke  of  Suffolk  was 
next  read,  on  which  Throckmorton  remarked  that  it  stated 
only  what  the  Duke  said  he  had  heard  from  his  brother.  Lord 
Thomas  Grey,  who  "  neither  hath  said,  can  say,  nor  will  say 
"  anything  against  me.''     Certain  statements,  very  remotely 
connected  with  the  subject,  made  by  one  Arnold,  were  then 
referred  to.     They  mentioned  a  man  named  FitzWilhams. 
Throckmorton,  seeing  FitzWilliams  in  court,  desired  that  he 
might  be  sworn  as  a  witness.     FitzWilliams  offered  himself 
to  be  sworn,  but,  upon  the  Attorney-General's  application,  the 
Court  refused  to  hear  him,  and  ordered  him  out,  one  of  the 
judges  saying,  "  Peradventure  you  would  not  be  so  ready  in  a 
"  good  cause."    Finally  it  was  said  that  Wyat  had  "  grievously 
"  accused "    the  prisoner,  to   which    Throckmorton   replied, 
"  Whatsoever  Wyat  hath  said  of  me  in  hope  of  his  life,  he 
"  unsaid  it  at  his  death."    One  of  the  judges  owned  this,  but 
added  that    Wyat  said   that    all   he  had   written    and  con- 
fessed  to    the   Council  was   true.      Throckmorton   replied, 
"  Master   Wyat   said  not   so.      That   was    Master  Doctor's 
"  addition."      On  this  another  Commissioner  observed  that 
Throckmorton  had  good  intelligence.     He  answered,  "  God 
"  provided  that  revelation  for  me  this  day,  since  I  came  hither ; 
"for  I  have  been  in  close  prison  these  fifty-eight  days,  where 
"  I  heard  nothing  but  what  the  birds  told  me  which  did  fly 
"  over  my  head," — an  assertion  which   was  probably  false. 
After  this   Throckmorton   objected,  that   his   case  was  not 
brought  within  25  Edw.  3,  as  no  overt  act  of  compassing  the 
Queen's  death  was  proved  against  him ;  but  at  the  most,  pro- 
curement by  words  only  of   levying  war.     The  judges  put 


THROCKMORTON  S   CASE.  329 

various  difficulties  in  his  way,  refusing  to  have  the  statutes  Chap,  xi. 
read,  and,  ^in  at  least  one  instance,  misconstruing  their 
language  grossly  when  Throckmorton  quoted  them.  They 
held  however,  certainly  in  accordance  \vith  all  later 
authorities,  that  in  treason  there  are  no  accessories, 
all  being  principals.  Nothing  can  exceed  the  energy,  in- 
genuity, presence  of  mind,  and  vigour  of  memory  which 
Throckmorton  showed,  or  is  reported  to  have  shown,  through- 
out every  part  of  the  case,  and  especially  in  the  legal  argu- 
ment. The  Attorney-General  is  reported  to  have  appealed 
to  the  Court  for  protection.  "  I  pray  you,  my  lords  that  be 
"  the  Queen's  Commissioners,  suffer  not  the  prisoner  to  use 
"  the  Queen's  learned  counsel  thus.  I  was  never  interrupted 
"  thus  in  my  life,  nor  I  never  knew  any  thus  suffered  to  talk 
."  as  this  prisoner  is  suffered.  Some  of  us  will  come  no  more  • 
"  to  the  bar,  an  we  be  thus  handled." 

The  Chief  Justice  summed  up,  "  and,"  says  the  reporter 
(who,  no  doubt,  was  very  favourable  to  Throckmorton), 
''  either  for  want  of  good  memory  or  good  will,  the  prisoner's 
"  answers  were  in  part  not  recited,  whereupon  the  prisoner 
"  craved  indifferency,  and  did  help  the  judge's  old  memory 
^'  with  his  own  recital."  After  the  summing  up,  Throck- 
morton made  to  the  jury  a  short,  earnest,  pathetic  address, 
full  of  texts.  He  begged  the  Court  to  order  that  no  one, 
and  in  particular  none  "  of  the  Queen's  learned  counsel  be 
"  suffered  to  repair  to  them."  Whereupon  two  Serjeants 
were  sworn  to  attend  them  for  that  purpose.  After  a  deliber- 
ation of  two  hours  the  jury  acquitted  him.  They  were  com- 
mitted to  prison  for  their  verdict,  and  eight  of  them  (four  ■ 
having  submitted  and  apologised)  were  brought  before  the 
Star  Chamber  in  October  (six  months  and  more  after  the  trial), 
and  discharged  on  the  payment  by  way  of  fine  of  £220  apiece, 
and  three,  who  were  not  worth  so  much,  of  £60  apiece. 
"  This  rigour  was  fatal  to  Sir  John  Throckmorton,  who  was 
"  found  guilty  upon  the  same  evidence  on  which  his  brother 
"  had  been  acquitted." 

1  "  Proveably  attainted  by  open  deed  by  ^eqpic  of  like  condition."  People 
of  like  condition,  according  to  Bromley,  C. J.,  means  "your  accomplices  m 
"  treason— traitors  like  yourself  "—which  Throckmorton  naturally  called  '  a 
"  very  strange  and  singular  understanding." 


330  DUKE   OF   NORFOLK  S   CASE. 

Chai'.  XI.  The  next  trial  to  which  I  will  refer  is  that  of  ^  the  Duke  of 
Norfolk  in  1571.  He  was  tried  for  high  treason  by  imagining 
the  death  and  deposition  of  Queen  Elizabeth ;  the  overt  act 
being  an  endeavour  to  marry  Mary,  Queen  of  Scots,  knowing 
that  she  claimed  title  to  the  Crown  as  against  Queen  Eliza- 
beth. He  was  also  charged  with  being  concerned  in  various 
other  treasonable  enterprises,  which  are  set  out  at  great  length 
in  the  indictment.  The  case  was  tried  before  the  Court  of 
the  Lord  Bigh  Steward,  consisting  of  twenty-six  Lords  Triers.. 
The  proceedings,  though  not  so  animated  as  those  in  Throck- 
morton's case,  followed  much  the  same  course.  Serjeant 
Barham  conducted  the  greater  part  of  the  prosecution. 
After  opening  the  case,  he  urged  the  Duke  to  confess  that  he 
knew  that  Mary  claimed  the  crown  of  England.  He  ad- 
mitted that  he  knew  it,  "but  with  circumstance,"  that  is,, 
subject  to  explanation.  .Barham  contested  the  value  of  the 
explanation,  and  many  depositions  were  read,  on  the  bearing 
of  which  the  Duke  on  the  one  side,  and  Barham  on  the 
other,  argued,  questioned  each  other,  and  exchanged  expla- 
nations at  great  length.     Here  is  a  single  specimen  : — 

"  Serjeant :  Now  for  the  matter  of  taking  the  Tower.. 
"  Duke :  I  deny  it.  Serjeant :  Was  it  not  mentioned  unto- 
"  you  in  the  way  when  you  came  from  Titchfield,  by  one  that 
"  came  to  you  and  moved  you  a  device  between  you  and 
"  another  for  taking  the  Tower  ?  BuJce :  I  have  confessed 
"  that  such  a  motion  was  made  to  me,  but  I  never  assented 
"to  it.  Serjeant:  You  concealed  it;  and  to  what  end 
"  should  you  have  taken  the  Tower  but  to  have  held  it  against 
"  the  Queen  by  force  ?  "  &c. 

After  Barham  had  finished  the  part  of  the  case  which  he 
was  to  manage,  other  charges  were  enforced  in  the  same  way 
by  the  Attorney-General,  and  others  again  by  the  Solicitor- 
General.  After  which  "  Mr.  Wilbraham,  the  Attorney  of 
'■'  the  Wai'ds,"  made  a  speech  ending  with  a  burst  of  patriotic 
eloquence  as  to  how  under  circumstances  the  English  would 
have  beaten  certain  Walloons.  On  this  the  reporter  observes, 
"  This  point  Mr.  Attorney  spoke  with  such  a  grace,  such 
"  cheerfulness  of  heart  and  voice,  as  if  he  had  been  ready  to 
1  1  St.  Tr.  957—1042. 


OTHER   CASES   UNDER   ELIZABETH.  33 1 

"  be  one  at  the  doing  of  it,  like  a  hearty  true  Enghshman,  a  Chap.  xi. 
"  good  Christian,  a  good  subject,  a  man  enough  for  his 
"religion,  prince,  and  country."  After  this  Wilbraham,  like 
his  leaders,  had  an  argument  at  length  with  the  prisoner,  who 
was  thus  expected  to  deal  successively  with  no  less  than 
four  eminent  counsel. 

Some  of  the  Duke's  observations  throw  much  light 
on  the  position  of  a  prisoner  in  those  days.  At  one  point 
he  said,  "  There  is  too  much  for  me  to  answer  without  book  ; 
"for  my  memory  is  not  so  good  to  run  through  everything, 
"  as  they  do  that  have  their  books  and  notes  lying  before 
"  them.  Therefore,  I  pray  you,  if  I  forget  to  answer  to  any- 
"  thing,  remind  me  of  it."  The  Duke,  like  Throckmorton, 
argued  with  mtich  reason  that  no  overt  act  of  compassing 
the  Queen's  death  had  been  proved  against  him,  and  quoted 
some  authorities,  and  in  particular  Bracton.  The  Attorney- 
General  was  indignant  at  his  audacity.  "  You  complained 
"  of  your  close  keeping  that  you  had  no  books  to  provide  for 
"  your  answer :  it  seemeth  you  have  had  books  and  counsel ; 
"  you  allege  books,  statutes,  and  Bracton.  I  am  sure  the 
"study  of  such  books  is  not  your  profession."  The  Duke 
humbly  said,  "  I  have  been  in  trouble  these  two  years ;  think 
"  you  that  in  all  this  time  I  have  not  had  cause  to  look  for 
"  mj'self  ?  "     The  Duke  was  convicted  and  executed. 

Many  other  trials  in  Queen  Elizabeth's  time  were  con- 
ducted in  the  same  way.  I  may  mention  those  of  ^  Cam- 
pion and  other  Jesuits  in  1581,  those  of  ^  Abington  and 
others  in  1586,  that  of  ^Lord  Arundel  in  1589,  and  a 
very  remarkable  one  of  *  Udaie,  for  felony  in  writing  the 
libel  called  Martin  Marprelate  in  1590.  In  Udale's  case 
there  was  really  no  evidence,  or  hardly  anything  which 
could  by  courtesy  be  called  levidence,  except  the  fact  that 
Vvh.en  examined  before  the  Privy  Council  he  would  not  deny 
having  written  the  book]  and  that  when  the  judge  who 
tried  him  offered  to  direct  an  acquittal  if  he  would  only 
say  he  did  not  write  it,  he  refused  to  do  so. 

Under  James  I.  the  character  of  the  procedure  remained 

1  1  St.  Tr.  1049—1088.        "  lb.  1141—1162.        '  2b.  1253. 
4  lb.  1271—1315. 


332  CASE   OF   ELWES. 

Chap.  XI.  unchanged,  as  may  be  '  seen  by  reference  to  the  cases  of 
1  Ealeigh  in  1603,  the  trials  for  the  ^  Gunpowder  Plot  in 
1606,  and  those  of  ^  Overbury's  murderers  in  1615. 
The  trials  of  *  Lord  Somerset  and  ^  Sir  Jervase  Elwes 
are  perhaps  the  best  illustrations  of  the  old  procedure. 
Each  affords  a  striking  instance  of  the  importance  which 
then  attached  to  the  examination  of  the  prisoner.  *The 
argument  between  Lord  Somerset  and  the  different  counsel 
and  members  of  the  court  is  exceedingly  curious  and  minute, 
but  its  effect  cannot  be  given  shortly.  Elwes,  who  was 
Lieutenant  of  the  Tower,  and  had  delivered  the  Countess  of 
Somerset's  poisons  to  Over  bury,  defended  himself  on  the 
ground  that  he  did  not  know  what  they  were,  though  he 
admitted  that  he  knew  that  at  one  time  one  of  the  subordinate 
agents  had  thoughts  of  committing  the  crime.  '^He  de- 
fended himself  with  so  much  energy  and  skill  that  he  might 
perhaps  have  escaped  had  not  Coke,  the  presiding  judge, 
cross-examined  him  as  to  some  expressions  in  his  letters 
which  he  was  unable  to  explain,  ^  and  (which  is  even  more 
at  variance  with  our  modern  views)  produced  against  him, 
after  his  defence  had  been  made,  a  "  confession "  by  one 
Franklin,  who  had  made  the  confession  privately  and  not 
even  upon  oath  before  Coke  himself,  at  five  o'clock  that 
morning,  before  the  court  sat.  The  "  confession,"  if  true,  no 
doubt  proved  Elwes's  guilt  beyond  all  doubt,  but  put  upon 
him  as  it  was  at  the  very  last  moment,  when  he  had  no 
opportunity  to  inquire  about  it,  or  even  to  cross-examine 
Franklin  without  inquiry,  it  is  not  surprising  that  "  he  knew 
"  not  what  to  answer."  If  Elwes's  dying  speech  is  rightly 
reported,  he  confessed  his  guilt  at  the  gallows,  and,  with- 
out making  any  complaint  on  the  subject,  ascribed  its 
discovery  to  Coke.  ^  "  I  displeased  God,  being  transported 
"  with  over-much  pride  of  my  pen ;  which  obsequious  quill 
"  of  mine  procured  my  just  overthrow  upon  the  knitting  of 
"  my  Lord  Chief  Justice's  speech  at  my  arraignment,  by 
"  reason  of  two   or   three   passages   at   the   bottom   of  my 


1  2  St.  Tr.  1—60. 

-  lb.  159—359. 

3  n.  911—1022. 

4  lb.  965—1022. 

'-  lb.  936. 

"  lb.  992—994. 

'  lb.  939—940. 

8  lb.  941. 

9  lb.  946. 

RALEIGH  S   CASE.  333 

"  letter  subscribed  with  my  own  band,  which  I  utterly  had  Chap.  XI. 

"  forgotten,  because  I  felt  not  my  sin."  

Of  all  the  trials  which  I  have  mentioned,  however,  that 
of  Raleigh  is  by  far  the  most  remarkable.  He  was  accused 
of  treason  by  conspiring  with  Lord  Cobham  to  make 
Arabella  Stuart  Queen  of  England  through  the  agency  of 
the  Archduke  of  Austria  and  his  ambassador.  The  whole 
evidence  against  Raleigh  was  a  "confession"  or  examination 
of  Cobham  before  the  Privy  Council,  and  a  letter  which  he 
wrote  afterwards.  Both  in  the  confession  and  in  the  letter, 
Cobham  charged  Raleigh  with  this  plot  by  obscure  allusions 
and  implications,  and  with  no  details.  Some  few  trifling  bits 
of  hearsay  were  proved,  I  suppose  by  way  of  corroboration. 
For  instance,  ^  Dyer,  a  pilot,  swore  that  he  accidentally  met 
some  one  in  Lisbon,  who  said  that  Cobham  and  Raleigh 
would  cut  King  James's  throat  before  he  could  be  crowned. 
The  extreme  weakness  of  the  evidence  was  made  up  for  by 
the  rancorous  ferocity  of  Coke,  who  reviled  and  insulted 
Raleigh  in  a  manner  never  imitated,  so  far  as  I  know,  before 
or  since  in  any  English  court  of  justice,  except  perhaps  in 
those  in  which  Jefferies  presided.^  The  trial  is  extremely 
curious,  but  its  great  interest  in  a  legal  point  of  view  lies 
in  the  discussion  which  occupied  most  of  it  on  Raleigh's 
right  to  have  Cobham  called  as  a  witness.  He  knew  that 
Cobham  had  retracted  his  confession,  and  he  had  actually 
received  from  him  a  letter  saying,  "  I  protest  upon  my  salva- 
"  tion  I  never  practised  with  Spain  by  your  procurement. 
"  God  so  comfort  me  in  this  my  affliction  as  you  are  a  good 
"subject,  for  anything  I  know."     For  these  reasons,  and  also 

1  2  St.  Tr.  25. 

"  lb.  26: — "Att.:  Thou  art  the  most  vile  and  execrable  traitor  that 
"  ever  lived.  BaUigh :  You  speak  indiscreetly,  barbarously,  and  uncivOly. 
"  Att.  :  I  want  words  sufficient  to  express  thy  viperous  treasons.  Baleigh  : 
"  I  think  you  want  words,  indeed,  for  you  have  spoken  one  thing  half  a  dozen 
"  times.  Att.  :  Thou  art  an  odious  fellow.  Thy  name  is  hateful  to  all  the 
"  realm  of  England  for  thypride.  Raldfjh  :  It  will  go  hard  to  prove  a measur- 
"  ing  cast  between  you  and  me,  Mr.  Attorney.  Att.  :  AVell  I  will  now  make 
"  it  appear  that  there  never  lived  a  viler  viper  upon  the  face  of  the  earth 
'•  than  thou."  In  the  case  of  Wraynham  before  the  Star  Chamber  for  slander- 
ing Lord  Bacon,  Coke  said,  "  Take  this  from  me,  that  what  grief  soever 
"  a  man  hath,  ill  words  work  no  good,  and  learned  counsel  never  use  them." 
— -2  St.  Tr.  1073.  As  to  Raleigh's  trial  viewed, historically,  see  Gardiner's 
Hist.  ofEng.  i.  93-109. 


334  ealeigh's  case. 

Chap.  XI.  because  as  he  said  he  felt  sure  that  Cobham  would  not 
"  venture  to  state  openly  and  on  oath  what  he  had  confessed 
before  the  Council,  Raleigh  earnestly  pressed  for  his  pro- 
duction. He  put  his  demand  partly  on  two  statutes  of 
Edward  VI.  (1  Edw.  6,  c.  12,  s.  22,  and  5  &  6  Edw.  6, 
c.  11,  s.  11).  The  first  act  provides  that  no  one  is  to  be 
indicted,  arraigned,  or  convicted  of  treason  unless  he  be 
accused  by  two  sufficient  and  lawful  witnesses.  The  second 
act  is  to  the  same  effect,  but  uses  the  words  "lawful 
"accusers,"  which  ^Coke  himself  afterwards  interpreted  as 
meaning  witnesses,  "  for  other  accusers  have  we  none  in 
"  the  common  law."  It  also  provides  that  the  accusers 
shall,  at  the  time  of  the  arraignment,  be  brought  in 
person  before  the  accused.  Of  these  statutes  Coke  de- 
clares that  they  were  grounded  on  the  common  law, 
which  "  herein  is  grovinded  upon  the  law  of  God,  expressed 
"  both  in  the  Old  and  New  Testament  '  in  ore  duorum  vel 
"  '  trium  testium,'  &c."  ^  In  Raleigh's  trial,  Coke  insinuated 
that  these  statutes  were  no  longer  in  force,  and  ^  Chief 
Justice  Popham  expressly  said  that  they  were  repealed, 
adding,  "  It  sufficeth  now  if  there  be  proofs  made  either 
"  u.nder  hand  or  by  testimony  of  witnesses,  or  by  oaths."  As 
for  having  Cobham  produced  in  court.  Lord  Salisbury  (Robert 
Cecil)  said  that  the  commissioners  ought  to  know  from  the 
judges  whether  Raleigh  had  a  right  to  demand  his  production, 
or  whether  it  was  matter  of  favour  ?  Upon  this  the  follow- 
ing remarkable  statements  were  made  : — 

*  "  Lord  Chief  Justice :  This  thing  cannot  be  granted,  for 
"  then  a  number  of  treasons  should  flourish  :  the  answer 
"  may  be  drawn  by  practice  whilst  he  is  in  person.  Justice 
"  Gawdy :  The  statute  you  speak  of  concerning  two  wit- 
"  nesses  in  case  of  treason  is  found  to  be  inconvenient ; 
■"  therefore  by  another  law  it  was  taken  away.  Baleigh : 
"  The  common  trial  of  England  is  by  jury  and  witnesses. 
"Lord  Chief  Justice:  No,  by  examination:  if  three  con- 
"  spire  a  treason  and  they  all  confess  it,  there  is  never  a 
"  witness,  yet  they  are  condemned.  Justice  Warhurton : 
"'  I  marvel.  Sir  Walter,  that  you,  being  of  such  experience 
1  Zrdlnst.  25—26.  ^  2  St.  Tr.  14.  3  lb.  1.5.  «  lb.  18. 


Raleigh's  case — rules  of  evidence.  335 

*'  and  wit,  should  stand  on  this  point :  for  so   many  horse-   Chap.  XI. 

*'  stealers' may  escape,  if  they  may  not  be  condemned  without 

•"  witnesses.    If  one  should  rush  into  the  king's  privy  chamber 

"  whilst  he  is  alone  and  kill  the  king  (which  God  forbid),  and 

"  this  man  be  met  coming  with  his  sword  drawn  all  bloody, 

"  shall  not  he  be  condemned  to  death  ?    My  Lord  Gobham 

"  hath  perhaps  been  laboured  in  that,  and  to  save  you,  his  old 

"'  friend,  it  may  be  that  he  will  deny  all  that  he  hath  said  ? " 

The  result  was  that  Cobham  was  not  produced,  and  that 
Ealeigh  was  convicted  and  executed  on  the  29th  October, 
1618,  just  fifteen  years  after  his  trial.  The  avowed  reason 
for  keeping  back  Cobham  was  that,  if  called,  he  would  have 
withdrawn  what  he  had  said.  It  is  right,  however,  to  observe 
that  in  the  letter  which  he  wrote  he  made  one  charge  against 
Raleigh  which  may  probably  have  been  true.  "  Raleigh,"  he 
«aid,  "was  to  have  a  pension  of  £1,500  a  year  for  which  he 
"  promised  that  no  action  should  be  against  Spain,  the  Low 
"  Countries,  or  the  Indies,  but  he  would  give  knowledge 
"  beforehand."  The  Chief  Justice  asked  Raleigh  what  he 
said  to  this.  Raleigh  replied,  "  I  say  that  Cobham  is  a  base, 
""  dishonourable,  poor  soul ; "  and  he  then  produced  the  letter 
already  quoted,  in  which  Cobham  withdrew  all  his  accusations. 
He  did  not,  however,  deny  the  charge  about  the  pension. 

Of  Coke's  share  in  this  matter  nothing  need  be  said 
except  that  it  was  infamous ;  but  the  observations  of  the 
judges  as  to  the  right  of  the  prisoner  to  have  the  witness 
produced  before  him  face  to  face,  and  their  assertion  that  the 
statutes  of  Edward  VI.  had  been  repealed,  and  that  the  trial 
at  common  law  was  by  examination  and  not  by  a  jury  and 
witnesses,  are  extremely  curious.  That  the  judges  of  that 
time  were  subservient  to  the  Crown  must  be  admitted  ; 
that  they  would  venture  to  put  forward  as  undoubted 
law  and  ordinary  practice  that  for  which  there  was  no  sort 
of  colour  of  law  is  most  improbable.  The  explanation 
which  I  should  be  inclined  to  put  upon  the  opinions  just 
quoted  is  as  follows.  The  meaning  of  the  assertion  that 
the  statutes  of  Edward  VI.  Piad  been  repealed  was,  that  by  a 
statute  of  Philip  and  Mary  (1  &  2  Phil.  &  Mary,  c.  10)  it 
~^vas  enacted  that  for  the  future  all  trials  for  treason  "  shall 


33^  TRIAL   BY   EXAMINATION   AND   BY   WITNESSES. 

Chap.  XT.  "  be  had  and  used  only  according  to  the  due  order  and  course 
"  of  the  common  law."  The  statutes  requiring  two  witnesses 
in  treason  were  regarded  as  an  innovation  upon  the  common 
law,  and  were  thus  considered  as  being  repealed  implicitly  by 
the  Act  of  Philip  and  Mary.  The  rule  as  to  the  two  witnesses 
seems  to  have  been  construed  as  referring  to,  the  trial  by  wit- 
nesses as  it  existed  under  the  civil  law,  which  seems  to  have 
been  regarded  in  England  as  a  trial  in  which  two  eye  or 
ear-witnesses  to  the  fact  constituting  the  crime  itself  were 
required — a  condition  so  difficult  of  fulfilment  that  it  was 
in  practice  supplemented  by  torture,  a  confession  so  ob- 
tained being  regarded  as  sufficient  for  a  conviction.  With 
this  trial  by  witnesses  trial  by  jury  was  frequently  contrasted 
(as,  for  instance,  by  ^  Fortescue,  Be  Zaudibus  Legum  Anglice) ; 
and  the  opinion  seems  to  have  prevailed  that  if  a  trial  by 
witnesses  according  to  all  the  rigour  attributed  to  the  civil 
law  was  not  to  be  insisted  upon,  the  only  alternative  was  that 
the  jury  should  form  their  opinion  as  they  could,  whether 
upon  their  own  knowledge  or  upon  any  sort  of  materials 
which  might  be  supplied  to  them,  of  which  materials  the 
examination  of  the  accused  would  probably  be  the  commonest 
and  most  natural.  It  should  be  observed  that  the  remarks 
of  the  judges,  and  especially  the  illustration  given  by  Judge 
Warburton  as  to  a  murder  being  proved  by  the  fact  that  the 
prisoner  was  seen  with  a  bloody  sword  in  his  hand  leaving 
the  room  where  the  murder  was  committed  immediately 
after  the  crime,  show  that  the  judges  of  that  day  recognised 
no  distinction  between  different  kinds  of  evidence,  except  the 
distinction  between  the  evidence  of  an  eye-witness  to  the 
actual  crime  and  everything  else.  They  seem  to  have 
thought  that  if  the  evidence  of  two  such  eye-witnesses  was 
dispensed  with,  no  other  line  could  be  drawn.  There  w.as  no 
reason  why  the  most  remote  and  insignificant  hearsay  should 
not  be  admitted  even  as  to  the  contents  of  written  docu- 
ments, or  why  the  prisoner  should  not  be  convicted  solelv 
on  the  impression  derived  by  the  jury  from  the  way  in  which 
he  sustained  his  examination.     The  only  rules  of  evidence  as 

1  Chapters  xxi.— xxvii.  pp.  .37—60  ;    and  see  28  Hen.   8,  c.   15.     As  to 
tlip.  trial  of  pirafes,  post.  Vol.  II.  p.  18. 


THE   STAR  CHAMBER  PROCEDURE.  337 

to  matters  of  fact  recognised  in  the  sixteenth  century  seem  Chap.  XI. 
to  have  been  the  clumsy  rules  of  the  mediaeval  civil  law, 
which  were  supposed  to  be  based  on  the  Bible.  If  they  were 
set  aside,  the  jury  were  practically  absolute,  and  might  decide 
upon  anything  which  they  thought  fit  to  consider  evidence. 
On  the  other  hand,  as  the  prisoner  had  no  counsel,  no  books 
no  means  of  procuring  evidence,  and  no  right  to  give  it  if  he 
did  procure  it,  the  jury  were  practically  in  the  hands  of  the 
court,  especially  as  there  was  a  possibility  (as  Throck- 
morton's case  showed)  of  their  being  fined  if  they  gave  an 
unwelcome  verdict." 

Before  leaving  these  trials  I  may  make  an  observation  on 
the  judges.  Most  of  the  trials  to  which  I  have  referred  were 
before  Commissioners  of  Oyer  and  Terminer.  Such  com- 
missions are  still  addressed  not  only  to  the  judges  who  are  to 
go  on  circuit  and  to  the  Queen's  Counsel  who  on  occasion 
sit  for  them,  but  also  to  a  number  of  distinguished  persons 
who  are  probably  not  aware  that  they  are  included  in  the 
commission.  This  is  a  mere  relic  of  what  was  once  an  im- 
portant matter.  In  the  sixteenth  century  the  lay  commis- 
sioners took  a  prominent  part  in  the  trials.  In  Raleigh's 
case,  for  instance,  there  were  eleven  commissioners,  of  whom 
four  were  judges  and  seven  laymen.  Lord  Salisbury  (Robert 
Cecil)  and  Lord  Henry  Howard,  especially  the  former,  took  a 
prominent  part  in  the  trial.  ^  Cecil  in  particular  got  into  a 
dispute  with  Coke,  who  "  sat  down  in  a  chafe,  and  would  speak 
"  no  more  until  the  Commissioners  urged  and  entreated  him." 

I  now  pass  from  the  proceedings  before  the  Courts  of 
Common  Law  to  those  which  took  place  before  the  Star 
Chamber. 

I  have  already  given  some  account  of  the  history  and  of 
the  jurisdiction  of  that  court.  I  will  now  notice  some  of  the 
cases  which  led  to  its  abolition.  Its  function  as  a  criminal 
court  was  to  try  cases  of  misdemeanour  which  were  not,  or 
were  supposed  not  to  be,  sufficiently  recognised  or  punished 
at  the  common  law.  Its  procedure  was  founded  upon  an  in- 
formation, generally  by  the  Attorney-General,  who  drew  up 
a  charge  like  a  Bill  in  Chancery  against  the  defendant.  The 
^  Gom'inonwealth  of  F,ngland,  212.  ^-  2  St.  Tr.  26. 

VOL.    I.  Z 


338  REMARKS  ON  STAR  CHAMBER  CASES. 


00 


Chap.  XI.  defendant  put  in  his  answer  also  in  the  form  of  an  Answer  in 
Chancery.  He  might  be  examined  upon  interrogatories,  and 
was  liable  to  be  required  to  take  what  was  called  the  ex  officio 
oath.  This  was  an  oath  in  use  in  the  Ecclesiastical  Courts,  by 
which  the  person  who  took  it  swore  to  make  true  answer  to 
all  such  questions  as  should  be  demanded  of  him.  The  evi- 
dence of  witnesses  was  given  upon  affidavit.  When  the  case 
was  ripe  for  hearing  it  came  on  for  argument  much  in  the 
way  in  which  cases  are  argued  in  the  Chancery  Division  of  the 
High  Court.  The  parties  appeared  by  counsel ;  the  informa- 
tion, answer,  and  depositions  were  read  and  commented  upon  ; 
and  finally  each  member  of  the  court  pronounced  his  opinion 
and  gave  his  judgment  separately — a  point  worth  noticing 
because  it  stands  in  marked  contrast  to  the  practice  of  the 
modern  Judicial  Committee  of  the  Privy  Council,  which  in  a 
certain  sense  represents  the  Star  Chamber. 

The  Star  Chamber  proceedings  reported  in  the  /Stefo  Trials 
leave  a  singular  impression  on  my  mind.  As  far  as  the 
mere  management  in  court  of  the  different  cases  went,  it 
cannot  be  denied  that  they  are  for  the  most  part  calm  and 
dignified,  though  the  strange  taste  and  violent  passions  of 
the  time  give  them  occasionally  a  grotesque  appearance  ;  but 
the  severity  of  the  "censures"  or  sentences  is  in  these  days 
astonishing.  A  few  instances  may  be  mentioned.  In  1615 
^  Sir  John  Hollis  and  Sir  John  Wentworth  were  prosecuted 
"  for  traducing  the  public  justice."  Weston  had  been  hanged 
for  the  murder  of  Sir  Thomas  Overbury,  to  whom  he  had 
administered  poison.  Wentworth  and  Hollis  went  to 
Weston's  execution,  where  Wentworth  asked  Weston  whether 
he  really  did  poison  Overbury,  and  pressed  him  to  answer, 
"  saying  he  desired  to  know,  that  he  might  pray  with  him." 
Hollis  "  was  not  so  miich  of  a  questioner,"  but,  "  like  a  kind 
"  of  confessor,  wished  him  to  discharge  his  conscience  and 
"  satisfy  the  world."  Hollis  moreover,  when  the  jury  gave 
their  verdict,  said,  "  If  he  were  on  the  jury, .  he  would 
"  doubt  what  to  do."  It  is  difiicult  to  see  how  this  could 
be  regarded  as  in  any  sense  criminal  conduct ;  but  it 
seems  to  have  been  thought  that  Wentworth's  question 
1  2  St.  Tr.  1022. 


HOLLIS'S  CASE — SHEEFIELD'S  CASE.  339 

and  HoUis's  remarks  remotely  implied  that  Weston's  guilt  Chap.  XI. 
might    perhaps    be   not    absolutely    certain,    notwithstand-       ^~ 
ing   his   conviction.      Lord   Bacon    (then  Attorney-General) 
developed  this  view   of    the   subject   at   length,    and   with 
characteristic  grace,  calmness,  and  power.     The  defendants 
excused   themselves   in  a  polite  manner ;   Sir  John  Hollis 
observing   that    "Mr.    Attorney   had    so   well    applied    his 
"  charge  against  him  that,  though  he  carried  the  seal  of  a 
"  good   conscience  with  him,   he  would   almost  make   him 
"believe  he  was  guilty."    As  for  what  he  had  said  to  Weston, 
he  was  there  "  carried  with  a  general  desire  which  he  had  to 
"  be  at  the  execution  as  he  had  done  in  many  like  cases 
"before."     It   was   a   common   thing  on   such   occasions  to 
question  the  person  about  to  be  executed,  and  he  had  only 
followed  his  usual  practice.     Coke  pronounced  sentence.     He 
referred  to  Abimelech,  to  cases  of  poisoning  in  the  Year-books, 
as  to  which  he  remarked  that   "  from   Edward   III.   to   22 
"  Henry  VII.  (which  was  a  great  lump  of  time)  no  mention 
"  is  made  of  poisoning  any  man."     As  to  going  to  executions, 
he  said  that  "  ever  since  he  was  a  scholar  and  bad  read  those 
"  verses  of  ^  Ovid,  Trist.  iii.  5,  '  Ut  lupus  et  vulpes  instant  mori- 
" '  entibus  et  qusecumque  minor  nobilitate  fera  est,'  he  did 
"  never  like  it,  and  he  did  marvel  much  at  the  use  of  Sir 
John,"  to  whom  he  applied,  "  with  a  little  alteration,"  Virgil's 
line,   "  Et   quse    tanta    fuit    Tyburn   tibi    causa    videndi." 
Finally  by  way   of   "censure"   Sir  John  Hollis  was  fined 
£1,000  and  Sir  John  Wentworth    1,000   marks,  and   each 
was  imprisoned  a  year  in  the  Tower. 

^In  1632  Mr.  Sherfield  was  prosecuted  before  the  Star 
Chamber  for  breaking  a  glass  window  in  St.  Edmond's  Church 
in  Salisbury.  He  admitted  that  he  had  done  so,  but  justified  his 
conduct  on  the  ground  that  the  window  "  was  not  a  true  re- 
"  presentation  of  the  Creation ;  for  that  it  contained  divers 
"  forms  of  little  old  men  in  blue  and  red  coats,  and  naked  in 
"  the  head,  feet,  and  hands,  for  the  picture  of  God  the  Father, 
"  and  the  seventh  day  he  therein  hath  represented  the  like 

1  Tristia,  iii.  6,  35,  36.     The  first  line  is  both  incorrect  and  imperfect. 
It  is  "Ut  lupus  et  turpes  instant  morientibns  ursi." 

2  3  St.  Tr.  519. 

Z   2 


34°  CHAMBEES'S   CASE — PEYNNE'S   CASE. 

Chap.  XI.  "  image  of  God  sitting  down  taking  his  rest,  whereas  the 
"  defendant  conceiveth  this  to  be  false."  The  window  con- 
tained many  other  inaccuracies.  Eve,  for  instance,  was  repre- 
sented as  being  taken  whole  out  of  Adam's  side,  whereas  in  fact 
a  rib  was  taken  and  made  into  Eve.  Besides,  as  to  the  days, 
"  he  placed  them  preposterously,  the  fourth  before  the  third, 
"  and  that  to  be  done  on  the  fifth,  which  was  done  on  the  sixth 
"  day."  For  these  reasons  the  defendant  made  eleven  holes 
in  the  window  with  his  pikestaff,  and,  said  one  of  the  witnesses, 
"  the  staff  broke  and  he  fell  down  into  the  seat  and  lay 
"  there  a  quarter  of  an  hour  groaning."  For  this,  after  a 
long  and  decorous  discussion,  Sherfield  was  fined  £500. 

^Mr.  Richard  Chambers,  a  merchant  of  London,  who  had  a 
dispute  with  some  under  officers  at  the  Custom  House,  was 
summoned  before  the  Privy  Council  at  Hampton  Court,  where 
he  said  to  the  Council,  "  that  the  merchants  are  in  no  part  of 
"  the  world  so  screwed  and  wrung  as  in  England ;  that  in 
"  Turkey  they  have  more  encouragement."  For  this  little 
bit  of  grumbling,  directed  solely  against  under  officers,  he 
was  fined  £2,000,  and  required  to  make  a  written  sub- 
mission or  apology,  which  he  refused  to  do.  For  his  refusal 
Jie  was  imprisoned  for  six  years. 

These  proceedings,  were  sufficiently  severe,  but  those  which 
made  the  Court  utterly  intolerable  and  brought  about  its 
abolition  were  the  sentences  upon  libellers,  and  the  proceed- 
ings connected  with  them.  The  best  known  of  these  may  be 
shortly  noticed. 

"  In  1632  William  Prynne  was  informed  against  for  his 
book  called  Histrio  Mastix.  Prynne's  answer  was,  amongst 
•other  things,  that  his  book  had  been  licensed,  and  one  of  the 
counsel,  Mr.  Holbourn,  apologised,  not  without  good  cause, 
for  his  style.  ^"For  the  manner  of  his  writing  he  is 
"heartily  sorry,  that  his  style  is  so  bitter,  and  his  impu- 
"  tations  so  unlimited  and  general."  The  book  certainly 
was  a  bitter  and  outrageous  performance,  and  it  is  probable 
that  a  moderate  sentence  upon  the  author  would,  at  the  time, 
have  been  approved.  His  trial  was,  like  the  other  Star 
Chamber  proceedings,  perfectly  decent  and  quiet,  but  the 
>  3  St.  Tr.  373.  ^  j^_  gg^^  s  jj_  572. 


PRYNNE,  BASTWICK,  AND  BURTON.  341 

sentence  can  be  described  only  as  monstrous.  He  was  sen-  Chap.  XI. 
tenced  to  be  disbarred  and  deprived  of  his  university  degrees ;  ~~- 
to  stand  twice  in  the  pillory,  and  to  have  one  ear  cut  off  each 
time ;  to  be  fined  £5,000 ;  and  to  be  perpetually  imprisoned, 
without  books,  pen,  ink,  or  paper.  One  of  the  Court,  ^  Lord 
Dorset,  was  as  brutal  in  his  judgment  as  Prynne  in  his  book. 
"  I  should  be  loth  he  should  escape  with  his  ears,  for  he  may 
"  get  a  periwig  which  he  now  so  much  inveighs  against,  and 
"  so  hide  them,  or  force  his  conscience  to  make  use  of  his  un- 
"  lovely  love-locks  on  both  sides ;  therefore  I  would  have 
"  him  branded  in  the  forehead,  slit  in  the  nose,  and  his  ears 
"  cropt  too." 

Five  years  after  this,  in  1637,  Prynne,  Bastwick,  and 
Burton,  were  tried  for  libel,  and  were  all  sentenced  to  the 
same  punishment  as  Prynne  had  received  in  1632,  Prynne 
being  branded  on  the  cheeks  instead  of  losing  his  ears. 

The  procedure  in  this  case  appears  to  me  to  have  been  as 
harsh  as  the  sentence  was  severe,  though  I  do  not  think 
it  has  been  so  much  noticed.  In  cases  of  treason  and  felony 
no  counsel  were  allowed  to  prisoners  in  the  sixteenth  and 
seventeenth  centuries,  indeed  in  cases  of  felony  they  were 
not  allowed  to  address  the  jury  for  the  prisoner  till  1837. 
The  rule  was  otherwise  in  misdemeanours,  and  by  the  prac- 
tice of  the  Star  Chamber  defendants  were  not  only  allowed 
counsel,  but  were  required  to  get  their  answers  signed 
by  counsel.  The  effect  of  this  rule,  and  probably,  its  object 
was,  that  no  defence  could  be  put  before  the  Court  which 
counsel  would  not  take  the  responsibility  of  signing — a. 
responsibility  which,  at  that  time,  was  extremely  serious. 
If  counsel  would  not  sign  the  defendant's  answer  he  was- 
taken  to  have  confessed  the  information.  Prynne' s  answer 
was  of  such  a  character  that  one  of  the  counsel  assigned  to 
him  refused  to  sign  it  at  all,  and  the  other  did  not  sign  it  till 
after  the  proper  time.  Bastwick  could  get  no  one  to  sign 
his  answer.  Burton's  answer  was  signed  by  counsel,  but  was 
set  aside  as  impertinent.  Upon  the  whole,  the  case  was  taken 
to  be  admitted  by  all  the  three,  and  judgment  was  passed  on 
them  accordingly.  There  is  something  specially  repugnant 
1  3  St.  Tr.  585. 


342  THE   EX   OFFICIO   OATH. 

Chap.  XI.  to  justice  in  using  rules  of  practice  in  such  a  manner  as  to 

debar  a  prisoner  from  defending  himself,  especially  when  the 

professed  object  of  the  rules  so  used  is  to  provide  for  his  de- 
fence. It  ought,  however,  in  fairness  to  be  admitted  that  the 
course  taken  made  no  practical  difference  to  the  defendants, 
as  they  neither  could,  nor  did  they  wish  to  deny  that  they 
were  the  authors  of  the  books  imputed  to  them,  and  the  books 
spoke  for  themselves.  They  were  asked  at  the  final  hearing 
whether  they  pleaded  guilty  or  not  guilty,  although  the  Court 
took  the  matter  of  the  information  as  admitted.  I  suppose 
this  was  to  give  them  an  opportunity  of  disavowing  the 
publication,  if  they  were  so  minded,  but  this  is  only  a 
conjecture. 

The  last  Star  Chamber  case  to  which  I  will  refer  is  notice- 
able, amongst  other  reasons,  because  it  illustrates  the  intense 
unpopularity  of  one  of  the  principal  points  in  the  procedure, 
both  of  the  Star  Chamber  and  of  the  Ecclesiastical  Courts,  from 
which,  the  Star  Chamber  probably  borrowed  it.  This  was 
what  was  known  as  the  ex  officio  oath,  already  mentioned. 
In  the  Common  Law  Courts  ^  this  oath  is  still  in  constant  use 
without  objection,  in  interlocutory  proceedings,  but  in  the  old 
Ecclesiastical  Courts  and  in  the  Star  Chamber  it  was  under- 
stood to  be,  and  was,  used  as  an  oath  to  speak  the  truth  on  the 
matters  objected  against  the  defendant — an  oath,  in  short 
to  accuse  oneself  It  was  vehemently  contended  by  those  who 
found  themselves  pressed  by  this  oath  that  it  was  against  the 
law  of  God,  and  the  law  of  nature,  and  that  the  maxim  "  nemo 
"  tenetur  ]prodere  seipsum  "  was  agreeable  to  the  law  of  God,  and 
part  of  the  law  of  nature.  In  this,  I  think,  as  in  most  other 
discussions  of  the  kind,  the  real  truth  was  that  those  who 
disliked  the  oath  had  usually  done  the  things  of  which  they 
were  accused,  and  which  they  regarded  as  meritorious  actions, 
though  their  judges  regarded  them  as  crimes.  People  always 
protest  with  passionate  eagerness  against  being  deprived 
of  technical  defences  against  what  they  regard  as  bad 
laws,  and  such  complaints  often  give  a  spurious  value  to 
technicalities  when  the  cruelty  of  the  laws  against  which 

'  Under  the  name  of  the  "ivoir "  (vrai)  "dire."'     "  You  shall  true  answer 
"  make  to  all  such  questions  as  shall  be  demanded  of  you." 


JOHN  lilbuen's  case.  343 

they  have    afforded   protection    has  come  to  be   commonly  Chap.  xi. 
admitted. 

Be  this  as  it  may,  the  extreme  unpopularity  of  the  ex  offlcio 
oath  is  set  in  a  clear  light  by  the  case  of  John  Lilburn.  Lil- 
burn  wrote  an  account  of  the  proceedings  against  him  which 
is  probably  substantially  accurate  and  is  extremely  lively  and 
circumstantial.  *  He  was  committed  to  the  Gatehouse  "  for 
"  sending  of  factious  and  seditious  libels  out  of  Holland  into 
"  England."  He  was  afterwards  ordered  by  the  Privy 
Council  to  be  examined  before  the  Attorney-General,  Sir 
John  Banks.  He  was  accordingly  taken  to  the  Attorney- 
General's  chambers,  ^ "  and  was  referred  to  be  examined  by 
"  Mr.  Cockshey  his  chief  clerk;  and  at  our  first  meeting 
"  together  he  did  kindly  entreat  me,  and  made  me  sit  down  by 
"  him,  put  on  my  hat,  and  began  with  me  after  this  manner. 
"  Mr.  Lilburn,  what  is  your  Christian  name  ? "  A  number  of 
questions  followed,  gradually  leading  up  to  the  matter  com- 
plained of.  Lilburn  answered  a  good  many  of  them,  but  at 
last  refused  to  go  further,  saying,  "  I  know  it  is  warrantable 
"  by  the  law  of  God,  and  I  think  by  the  law  of  the  land,  that 
"  I  may  stand  on  my  just  defence,  and  not  answer  your  inter- 
"  rogatories,  and  that  my  accusers  ought  to  be  brought  face 
"  to  face,  to  justify  what  they  accuse  me  of"  He  was  after- 
wards asked  by  the  Attorney-General  to  sign  his  examination, 
but  refused  to  do  so,  though  he  offered  to  write  an  answer  of 
his  own  to  what  might  be  alleged  against  him.  ^  Some  days 
after  he  was  taken  to  the  Star  Chamber  office  that  he  might 
enter  his  appearance.  He  replied  that  he  had  been  served 
with  no  subpoena,  and  that  no  bill  had  been  drawn  against  him. 
"  One  of  the  clerks  said  I  must  first  be  examined  and  then 
"  Sir  John"  (the  Attorney-General)  "would  make  the  bill." 
Lilburn  thought  the  object  of  the  examination  was  to  get 
materials  for  a  bill,  and  accordingly  when  the  head  of  the 
office  tendered  him  the  oath  "  that  you  shall  make  true  answer 
"  to  all  things  that  are  asked  you,"  he  refused  to  do  so,  say- 
ing, first,  "  I  am  but  a  young  man  and  do  not  well  know  what 
"  belongs  to  the  nature  of  an  oath."  Afterwards  be  said  he 
was  not  satisfied  of  the  lawfulness  of  that  oath,  and  after 
1  3  St.  Tr.  1315—1368.  ^  yj.  1317.  3  /j.  1320. 


344  JOHN  lilburn's  case. 

Chap.  XI.  much  dispute  absolutely  refused  to  take  it.  After  about  a 
fortnight's  delay  he  was  brought  before  the  Star  Chamber, 
where  the  oath  was  again  tendered  to  him  and  he  again 
refused  it  on  the  gronnd  that  it  was  an  oath  of  inquiry  for  the 
lawfulness  of  which  he  had  no  warrant.  'Lilburn  had  a 
fellow  prisoner,  "  old  Mr.  Wharton,"  said  intone  part  of  the 
case  to  have  been  eighty-five  years  of  age.  When  asked 
to  take  the  oath  Wharton  refused,  and  began  to  tell  them 
of  the  bishops'  cruelty  towards  him,  and  that  they  had 
"  had  him  in  five  several  prisons  within  these  two  years  for 
"  refusing  the  oath."  On  the  following  day  they  were  brought 
up  again.  Lilburn  declared,  on  his  word  and  at  length,  that 
the  charges  against  him  were  entirely  false,  and  that  the 
books  objected  to  were  imported  by  another  person  with  whom 
he  had  no  connection.  ^ "  Then,"  said  the  Lord  Keeper, 
"  thou  art  a  mad  fellow,  seeing  things  are  thus  that  thou 
"  wilt  not  take  the  oath  and  answer  truly."  Lilburn  repeated 
that  it  was  an  oath  of  inquiry  and  that  he  found  no  warrant 
in  the  word  of  God  for  an  oath  of  inquiry.  "  When  I  named 
"  the  word  of  God  the  Court  began  to  laugh  as  though  they 
"  had  had  nothing  to  do  with  it."  Failing  with  Lilburn,  the 
Court  asked  Wharton  whether  he  would'take  the  oath,  where- 
upon  getting  leave  to  speak,  "  he  began  to  thunder  it  out 
"  against  the  bishops,  and  told  them  they  required  three 
"  oaths  of  the  king's  subjects,  namely,  the  oath  of  church- 
"  wardenship,  and  the  oath  of  canonical  obedience,  and  the 
"  oath  ex  officio,  which,  said  he,  are  all  against  the  law  of 
"  the  land,  and  by  which  they  deceive  and  perjure  thousands 
"  of  the  king's  subjects  in  a  year."  "  But  the  Lords,  wonder- 
"  ing  to  hear  the  old  man  talk  after  this  manner,  commanded 
"  him  to  hold  his  peace,  and  to  answer  them  whether  he  would 
"  take  the  oath  or  no.  To  which  he  replied,  and  desired 
"  them  to  let  him  talk  a  little,  and  he  would  tell  them  by 
"  and  by.  At  which  all  the  Court  burst  out  laughing ;  but 
"  they  would  not  let  him  go  on,  but  commanded  silence  (which 
"  if  they  would  have  let  him  proceed,  he  would  have  so  pep- 
"  pered  the  bishops  as  they  never  were  in  their  lives  in  an 
"  open  Court  of  judicature)."  As  both  absolutely  refused  to 
1  3  St.  Tr.  1322.  2  xb.  1325, 


COMMON   CASES.  345 

take  the  oath  they  were  each  sentenced  to  stand  in  the  Chap.  XI 
pillory,  and  to  pay  a  fine  of  £500,  and  Lilburn  to  be  whipped 
from  the  Fleet  to  the  pillory,  which  stood  between  Westmins- 
ter Hall  Gate  and  the  Star  Chamber.  Lilburn  was  whipped 
accordingly,  receiving,  it  was  said,  upwards  of  500  lashes,  and 
was  made  to  stand  in  the  pillory  for  two  hours  after  his  whip- 
ping. In  May,  1641,  the  House  of  Commons  resolved  "  that  the 
"  sentence  of  the  Star  Chamber  given  against  John  Lilburn 
"  is  illegal,  and  against  the  liberty  of  the  subject :  and  also 
"  bloody,  cruel,  barbarous,  and  tyrannical." 

It  is  difficult  to  say  how  far  the  cases  reported  in  the 
State  Trials  can  be  regarded  as  fair  specimens  of  the  common 
course  of  the  administration  of  criminal  justice,  as  it  is  not 
unnatural  to  supposfe  that  in  cases  in  which  the  Government 
were  directly  interested  prisoners  niight  be  treated  more  harshly 
than  in  common  cases.  The  only  report  of  a  trial  for  a 
common  offence  given  in  the  State  Trials  before  the  year  1640, 
is  that  of  an  appeal  of  murder  tried  at  the  King's  Bench  bar, 
in  the  4th  Charles  I.  (1628).  The  report  is  published  in  14 
St.  Tr.  1342,  from  the  papers  of  Serjeant  Maynard.  The 
evidence  given  seems  to  have  been  with  one  strange  excep- 
tion, similar  to  the  evidence  which  would  be  given  in  the 
present  day  on  a  trial  for  murder.  It  was  proved  that  one 
Jane  Norkott  was  found  lying  dead  in  her  bed  in  a  composed 
manner,  the  bed  clothes  not  disturbed,  and  her  child  in  bed. 
Her  throat  was  cut  and  her  neck  broken.  There  was  no 
blood  on  the  bed,  but  much  at  two  distinct  and  distant  places 
on  the  floor,  and  a  bloody  knife  was  found  sticking  in  the 
floor,  the  point  towards  the  bed  and  the  haft  from  the  bed. 
These  facts  clearly  proved  that  the  case  was  one  of  murder, 
and  not  (as  was  supposed  at  first)  of  suicide.  Mary  Norkott, 
the  mother  of  the  deceased,  Agnes  Okeman,  her  sister,  and 
Okeman,  her  brother-in-law,  deposed  at  the  inquest  that  they 
slept  in  an  outer  room  through  which  her  room  was  entered, 
and  that  no  stranger  came  in  in  the  night.  Upon  this  singu- 
larly weak  evidence  they  were  suspected  of  murder,  though  a 
coroner's  jury  at  first  returned  a  verdict  of  felo  de  se.  After 
thirty  days  the  body  was  disinterred  and  a  second  inquest 
held.      Probably  (though  that  is  not  stated)  they  found  a 


346  okeman's  case. 

Chap.  XI.  verdict  of  murder  against  the  defendants,  who  were  tried  at 
Hertford  assizes  and  acquitted.  The  judge,  being  dissatisfied 
with  the  verdict,  recommended  that  the  infant  child  should 
be  made  plaintiff  in  an  appeal  of  murder  against  its  father, 
grandmother,  aunt,  and  uncle,  and  the  appeal  was  tried  ac- 
cordingly. On  the  trial  it  was  sworn  that  when  the  body  was 
disinterred  at  the  second  inquest  "  the  four  defendants  were 
"  required,  each  of  them,  to  touch  the  dead  body.  Okeman's 
"  wife  fell  upon  her  knees  and  prayed  God  to  show  tokens  of 
"  her  innocency.  The  appellant "  (sic,  but  as  the  appellant  was 
a  baby  this  seems  strange ;  probably  it  should  be  "  appellees  ") 
■ "  did  touch  the  dead  body,  whereupon  the  brow  of  the  dead, 
"  which  before  was  of  a  livid  and  carrion  colour,  began  to 
"  have  a  dew  or  gentle  sweat  arise  on  it,  which  increased  by 
"  degrees  till  the  sweat  ran  down  in  drops  on  the  face,  the 
"  brow  turned  to  a  lively  and  fresh  colour,  and  the  deceased 
"  opened  one  of  her  eyes  and  shut  it  again ;  and  this  opening 
"  the  eye  was  done  three  several  times ;  she  likewise  thrust 
"  out  the  ring  or  marriage  finger  three  times  and  pulled  it  in 
"  again,  and  the  finger  dropped  blood  on  the  grass."  These 
occurrences,  which  I  believe  (some  allowance  being  made  for 
exaggeration  and  inaccurate  observation)  are  not  unnatural 
effects  of  decomposition,  seem  to  have  excited  the  greatest 
astonishment  in  Court,  but  Serjeant  Maynard  does  not  say 
how  the  judge  dealt  with  them  in  his  charge  or  what  was  the 
result  of  the  proceedings.  If  they  are  regarded  as  miraculous, 
they  have  the  defect  of  being  wholly  uncertain  in  their 
meaning,  for  it  is  impossible  to  say  whether  they  attested 
the  innocence  of  Elizabeth  Okeman  or  her  guilt,  or  that  of 
any,  and  if  so  of  which,  of  the  other  persons  concerned. 

In  the  absence  of  reports  of  particular  trials  I  may  refer  to 
a  striking  description  of  trials  in  general  by  Sir  Thomas  Smith, 
Secretary  of  State  to  Queen  Elizabeth,  which  occurs  in  his 
Commomoealth  ofUngland,  written  during  the  author's  embassy 
to  France,  with  special  reference  to  the  difference  between 
the  institutions  of  France  and  England,  and  the  Common  and 
the  Civil  Law. 

The  following  is  his  description  of  a  trial  at  the  Assizes  : 
^  Smith's  Gommonwecdth,  cli.  xxv.  pp.  183 — 201. 


smith's  description  of  criminal  trials.  347 

Having  described  tlie  preliminary  proceedings  and  the  fixing  Chap.  XI. 
of  the  circuits  he  describes  the  Courts  themselves.  "  In  the 
"  town  house  or  in  some  open  common  place  there  is  a  tribu- 
"  nal  or  place  of  judgment  made  aloft.  Upon  the  highest 
"  bench  there  sit  the  judges  which  be  sent  down  in  commis- 
"  sion  in  the  midst.  Next  them  on  each  side  the  justices  of 
"  the  peace  according  to  their  degree.  On  a  lower  bench 
"  before  them  the  rest  of  the  justices  of  the  peace  and  some 
"  other  gentlemen  or  their  clerks.  Before  these  judges  and 
"justices  there  is  a  table  set  beneath,  at  which  sitteth  the 
"  custos  rotulorum,  or  keeper  of  the  writs,  the  escheator,  the 
"  under  sheriff,  and  such  clerks  as  do  write.  At  the  end 
"  of  that  table  there  is  a  bar  made  with  a  space  for  the  in- 
"  quests,  and  twelve  men  to  come  in  when  they  are  called, 
"  behind  that  space  another  bar,  and  there  stand  the 
"  prisoners  which  be  brought  thither  by  the  gaoler  all 
"  chained  together."  The  introductory  proceedings,  includ- 
ing the  various  proclamations  and  the  taking  of  the  pleas, 
the  challenges  and  swearing  of  the  jury,  are  next  fully 
described.  They  are  identically  the  same  as  those  which 
now  obtain,  the  very  words  of  the  proclamations  having 
remained  almost  unchanged.  The  prisoner  having  pleaded 
not  guilty,  and  the  jury  having  been  sworn,  the  crier  "  saith 
"  aloud,  If  any  can  give  evidence  or  can  say  anything  against 
"  the  prisoner,  let  him  come  now,  for  he  standeth  upon  his  de- 
"  liverance.  If  no  man  come  in,  then  the  judge  asketh  who 
"  sent  him  to  prison,  who  is  commonly  one  of  the  justices  of 
"  the  peace.  He,  if  he  be  there,  dehvereth  up  the  examina- 
"  tion  which  he  took  of  him"  (under  the  Acts  of  Philip  and 
Mary),  "  and  underneath  the  names  of  those  whom  he 
"  hath  bound  to  give  evidence  :  although  the  malefactor  hath 
"  confessed  the  crime  to  the  justice  of  the  peace,  and  that  it 
"  appear  by  his  hand  and  confirmation,  the  twelve  men  will 
"  acquit  the  prisoner,  but  they  which  should  give  evidence 
"  pay  their  recognizances.  Howbeit  this  doth  seldom 
"  chance  except  it  be  in  small  matters  and  where  the  justice 
"  of  the  peace  who  sent  the  prisoner  to  the  gaol  is  away." 
This  curious  passage  gives  a  different  impression  from 
the  reports  of  cases  in  the  State  Trials.     The  juries  in  the 


348  smith's  description  of  criminal  trials. 

Chap.  XI.  cases  I  have  referred  to  showed  little  inclination  to  acquit 
prisoners  who  had  confessed  or  had  been  accused  by  the 
confessions  of  others ;  but  Sir  Thomas  Smith's  account  clearly 
implies  that,  if  the  witnesses  did  not  appear,  the  examination 
of  the  prisoner  was  read,  and  he  probably  may  (though  this 
is  not  stated)  have  been  further  examined  upon  it.  In  such 
cases  as  Smith  refers  to,  in  the  present  day  the  judge  would 
direct  an  acquittal. 

To  resume  Smith's  account,  "  If  they  which  be  bound  to 
"  give  evidence  come  in,  first  is  read  the  examination  which 
"  the  justice  of  the  peace  doth  give  in  "  (it  is  likely  that  the 
prisoner  would  be  questioned  upon  it,  but  this  isnot  mentioned), 
"  then  is  heard  (if  he  be  there)  the  man  robbed,  what  he  can 
"  say,  being  first  sworn  to  say  the  truth,  and  after  the  con- 
"  stable,  and  as  many  as  were  at  the  apprehension  of  the 
"  malefactors,  and  so  many  as  can  say  anything  being  sworn 
"  one  after  another  to  say  truth.  These  be  set  in  such  a  place 
"  as  they  may  see  the  judges  and  the  justices,  the  inquest 
"  and  the  prisoner,  and  hear  them  and  be  heard  of  them  all. 
"  The  judge,  after  they  be  sworn,  asketh  first  the  party  robbed 
"  if  he  know  the  prisoner,  and  biddeth  him  look  upon  him  : 
"  he  saith  Yea.  The  prisoner  sometimes  saith  Nay.  The 
"  party  pursuyvant  giveth  good  ensignes,  verli  gratia,  I  know 
"  thee  well  enough  ;  thou  robbedst  me  in  such  a  place,  thou 
"  beatedst  me,  thou  tookest  my  horse  from  me,  and  my  purse  J 
"  thou  hadst  then  such  a  coat,  and  such  a  man  in  thy  company. 
"  The  thief  will  say  No,  and  so  they  stand  a  while  in  alterca- 
"  tion.  Then  he  "  (I  suppose  the  prosecutor)  "  telleth  all  that 
"  he  can  say :  after  him  likewise  all  those  who  were  at  the  ap- 
"  prehension  of  the  prisoner,  or  who  can  give  any  indices  or 
"  tokens,  which  we  call  in  our  language  evidence  against  the 
"  malefactor.  When  the  judge  hath  heard  them  say  enough, 
"  he  asketh  if  they  can  say  any  more.  If  they  say  No,  then 
"  he  turneth  his  speech  to  the  inquest.  Goodmen  (saith  he), 
"  ye  of  the  inquest,  ye  have  heard  what  these  men  say  against 
"  the  prisoner.  You  have  alfeo  heard  what  the  prisoner  can 
"  say  for  himself.  Have  an  eye  to  your  oath  and  to  your  duty> 
"  and  do  that  which  God  shall  put  in  your  minds  to  the 
"  discharge  of  your  consciences,  and  mark  well  what  is  said. 


OBSEEVATIONS.  349 

"  Thus  sometimes  witli  one  inquest  is  passed  to  the  number  Chap.  XL 
"  of  two  or  three  prisoners.  For,  if  they  should  be  charged 
"  with  more,  the  inquest  will  say.  My  lord,  we  pray  you  charge 
"  us  with  no  more ;  it  is  enough  for  our  memory.  Many 
"  times  they  are  charged  with  but  one  or  two."  The  jury 
then  retire  to  consider  their  verdicts,  and  are  confined  "  with 
"  neither  bread,  drink,  meat,  nor  fire.  If  they  be  in  doubt 
"  of  anything  that  is  said,  or  would  hear  again  some  of  them 
"  that  gave  evidence,  to  interrogate  them  more  at  full,  or  if 
"  any  that  can  give  evidence  come  late,  it  is  permitted  that 
"  any  that  is  sworn  to  say  the  truth  may  be  interrogated  of 
"  them  to  inform  their  consciences."  Finally  the  verdict  is 
returned ;  the  prisoner,  if  found  guilty,  and  his  offence  is 
clergyable,  prays  his  clergy.  If  he  can  read  he  gets  it.  If 
not,  or  if  his  offence  is  not  clergyable,  the  judge  passes  sen- 
tence :  "  Law  is  thou  shalt  return  to  the  place  from  whence 
"  thou  earnest ;  from  thence  thou  shalt  go  to  the  place  of 
"  execution.  There  thou  shalt  hang  till  thou  be  dead. 
"  Then  he  saith   to   the   sheriff,  Sheriff,  do  execution." 

Several  observations  arise  on  this  striking  passage. 
Smith  makes  no  mention  of  counsel ;  he  says  nothing  ex- 
plicitly of  the  prisoner's  defence,  and  he  seems  to  attach 
little  or  no  importance  to  the  judge's  summing  up.  On  the 
other  hand,  the  whole  account  assumes  that  the  common 
course  was  to  call  witnesses  face  to  face,  though  ^  expressions 
occur  which  imply  that  depositions  might  be  used  instead ; 
on  what  conditions  is  not  stated.  From  the  account  given  of 
the  reading  of  the  prisoner's  examination  as  a  first  step,  and 
of  the  "altercation"  between  him  and  the  prosecutor,  I 
should  infer  that  the  prisoner's  defence  was  made,  not  in  a  set 
speech  as  at  present,  but  by  fragments  in  the  way  of  argument 
and  "  altercation  "  with  the  prosecutor  and  the  other  witnesses. 
This  would  agree  with  and  illustrate  the  reports  in  the  State 
Trials  already  referred  to.     Upon  this  view  the  only  difference 

^  "It  will  seem  strange  to  all  nations  that  do  use  the  Civil  Law  of  the 
"  Eoman  Emperors  that  for  life  and  death  there  is  nothing  put  in  writing 
''  but  the  indictment  only.  All  the  rest  is  done  openly  in  the  presence  of  the 
''judges,  the  inquest, , and  the  prisoner,  and  so  many  as  will  or  can  come 
''  so  near  as  to  hear  it,  and  all  depositions  and  witnesses  given  aloud,  that 
' '  all  men  may  hear  from  the  mouth  of  the  depositors  and  witnesses  what  is 
<'  said."— P.  196. 


350  COMPARISON   BETWEEN   EARLY  AND  MODERN  TRIALS. 

Chap.  XI.  between  the  trials  which  are  fully  reported  and  the  routine 
described  by  Smith  would  be  that  in  the  more  important 
cases  the  examination  of  the  prisoner  would  be  conducted  by 
counsel,  whereas  in  less  important  cases  it  would  usually  consist 
of  a  debate  between  the  prisoner  and  the  prosecutor  and  the 
other  witnesses,  the  judge  of  course  interfering  as  he  saw  fit. 
Upon  the  whole  it  may  be  said  that  the  criminal  trials  of 
the  century  preceding  the  civil  war  differed  from  those  of  our 
own  day  in  the  following  important  particulars  : — 

(1)  The  prisoner  was  kept  in  confinement  more  or  less 
secret  till  his  trial,  and  could  not  prepare  for  bis  defence.  He 
was  examined,  and  his  examination  was  taken  down. 

(2)  He  had  no  notice  beforehand  of  the  evidence  against 
him,  and  was  compelled  to  defend  himself  as  well  as  he  could 
when  the  evidence,  written  or  oral,  was  produced  on  his  trial. 
He  had  no  counsel  either  before  or  at  the  trial. 

(3)  At  the  trial  there  were  no  rules  of  evidence,  as  we 
understand  the  expression.  The  witnesses  were  not  neces- 
sarily (to  say  the  very  least)  confronted  with  the  prisoner,  nor 
were  the  originals  of  documents  required  to  be  produced. 

(4)  The  confessions  of  accomplices  were  not  only  admitted 
against  each  other,  but  were  regarded  as  specially  cogent 
evidence. 

(5)  It  does  not  appear  that  the  prisoner  was  allowed  to  call 
witnesses  on  his  own  behalf;  but  it  matters  little  whether 
he  was  or  not ;  as  he  had  no  means  of  ascertaining  what 
evidence  they  would  give,  or  of  procuring  their  attendance. 
In  later  times  they  were  not  examined  on  oath,  if  they 
were  called. 

This  last  rule  appears  to  us  so  extraordinary,  that  it  is  neces- 
sary to  explain  how  it  came  about. 

1  Barrington,  in  his  Observations  on  the  Statutes,  says,  "  The 
"  denying  a  felon  to  make  his  defence  by  advocate,  and  the 
"  not  permitting  his  witnesses  to  be  examined  upon  oath  till 
"the  late  statute,  seem  to  have  been  borrowed  from  the 
"Roman  law,  which  is  indeed  the  more  severe  upon  the 
"  criminal  as  he  is  not  permitted  to  produce  any  witnesses  in 
"  his  favour ;  and  Montesquieu  gives  this  as  a  reason  why 
'  Observations  on  {he  Statutes,  pp.  89,  90. 


NO  WITNESSES   FOR  PRISONER.  35^ 

"perjury  is  a  capital  offence  in  France,  though  not  in  Chap. XI, 
England."  ^Barrington  quotes  from  the  journals  of  the 
House  of  Comnions,  Thursday,  June  4,  1607,  a  paper  "  de- 
"  livered  to  and  read  by  Mr.  Speaker,  declaring  the  manner 
"  of  proceeding  in  Scotland  for  point  of  testimony  upon 
"  trials  in  criminal  cases,  for  satisfaction  of  some  doubts. 

"  In  criminal  causes  by  the  civil  law  there  is  no  jury  called 
"upon  life  and  death,  and  therefore  the  judges  admit  wit- 
"  nesses  in  favour  of  the  pursuer,  but  none  in  favour  of  the 
"  defender,  because  in  all  cases  (either  criminal  or  civil)  no  man 
"  can  be  admitted  to  prove  the  contrary  of  his  own  accusa- 
"  tion,  for  it  is  his  part  who  relevantly  alleges  the  same  to 
"  prove  it.  As,  if  A  accused  B  for  breaking  his  stable  and 
"  stealing  his  horse  such  an  hour  of  the  night,  the  pursuer 
"  may  be  well  admitted  to  prove  what  he  hath  alleged ;  but 
"  the  defendant  can  never  be  admitted  to  prove  that  he 
"  was  alibi  at  that  time,  for  that  would  be  contrary  to 
"  the  libel,  and  therefore  most  unformal.  In  Scotland  we 
"  are  not  governed  by  the  civil  law,  but  ordanes  (ordinaries 
"  probably),  and  juries  are  to  pass  upon  life  and  death  much 
"  the  same  as  here,  which  jury,  as  it  comes  from  the  neigh- 
"  bourhood  where  the  fact  was  committed,  are  presumed  to 
"  know  much  of  their  own  knowledge,  and  therefore  they  are 
"not  bound  to  examine  any  witnesses  except  they  choose  to 
"  do  it  on  the  part  of  the  pursuer ;  but  this  is  not  lawful  to 
"  be  done  in  favour  of  the  defendant.  It  is  of  truth  the 
"judge  may  either  privately  beforehand  examine  ex  officio 
"  such  witnesses  as  the  party  pursuer  will  offer  to  him  ;  and 
"  then,  when  the  jury  is  publicly  called,  he  will  cause  these 
"  depositions  to  be  read,  and  likewise  examine  any  witnesses 
"  which  the  pursuer  shall  then  desire,  but  never  in  favour  of 
"  the  defender." 

The  same  subject  is  discussed  at  length  in  2  Hume's 
Commentaries.  "Of  old,"  he  says,  "the  panel  was  con- 
"  fined  to  a  very  narrow  and  disadvantageous  field  by  the 
''  received  maxim  of  the  law  against  admitting  any  defence 

1  The  paper  is  not  printed  in  the  Jmrnals,  but'the  House  had  then  before  it 
a  question  as  to  giving  Scotch  courts  jurisdiction  over  Englishmen  charged 
with  border  offences.     See  Gardiner,  Hist,  of  Eng.  i.  320-321. 

2  ii.  70  (edition  of  1800). 


352  OLD   SCOTCH   LAW   ON   THIS   SUBJECT. 

Chap. XI.  "that  was  contrary  to  the  averment  of  the  libel — a  maxim 
"  which  sounds  strange  in  our  ears,  but  is  taught  in  the 
"  writings  of  many  foreign  lawyers,  and  seems  to  have 
"  found  reception  formerly  into  the  practice  of  other  nations 
"  as  well  as  ours.  The  meaning  of  it  was  this :  for  instance, 
"  in  a  case  of  murder,  if  the  libel  charged  that  the  panel 
"gave  the  deceased  a  mortal  wound,  of  which  wpund  he 
"  languished  for  some  days  and  thereof  died,  it  was  in  vain 
"for  the  panel  to  allege,  for  he  could  not  be  allowed  to 
"  prove,  that  in  truth  the  man  died  of  some  other  ailment. 
"  By  the  same  rule,  as  little  could  the  panel  allege  a  casual 
"  rencounter,  or  self-defence,  or  great  and  sudden  provocation, 
"  if  the  libel  set  forth  that  the  slaughter  was  done  by  lying 
"  in  wait  or  on  challenge  to  fight  a  single  combat.'' 

"  The  sort  of  argument,  as  far  as  I  can  collect  it,  by  which 
"  our  lawyers  justified  so  strange  a  restriction  of  the  panel's 
"  proof,  was  to  this  purpose,  that  the  accuser  had  set  forth 
''  certain  facts  and  qualities  in  his  libel,  and  must  establish 
"  these  with  evidence  to  be  used  in  his  prosecution ;  that  if 
"  he  failed  to  prove  them  the  panel  must  be  acquitted,  of 
"  course,  for  that  reason  only,  though  there  were  no  evidence 
"  on  his  part  at  all;  and  that,  on  the  other  hand,  if  the 
"  prosecutor  proved  his  libel,  it  could  serve  to  no  purpose, 
"  but  to  occasion  perjury,  to  admit  a  contrary  proof  on  the 
"  part  of  the  panel,  whose  witnesses,  if  they  contradicted 
"  what  had  already  been  proved  by  those  for  the  prosecution, 
"  must  be  swearing  falsely,  which  it  was  the  business  of  the 
"  Court  to  deny  them  an  opportunity  of  doing.  '  Quando 
"  '  delictum  est  plene  probatum  (says  the  commentator  Baldus) 
"  '  per  testes  affirmantes,  non  est  admitienda  contraria  proiaiio 
"  '  per  testes  negantes.'  In  like  manner  Sir  George  M'Kenzie, 
"  '  To  admit  contrary  probations,'  says  he,  '  were  to  open  a 
"  '  door  to  perjury.'  And  much  to  the  same  purpose  the 
"  pleadings  in  cases  which  were  actually  under  trial.  '  This 
"  '  alledgiance  being  direct  contrair  to  the  libel  cannot  be 
"  '  admitted.  Besides  that  the  pursuer  offering  to  prove  the 
"  '  libel  as  it  stands,  his  probation,  as  it  has  the  preference 
"  '  to  it,  cannot  be  reargued  by  a  contrary  proof ;  for  seeing 
"  '  the   law  both   of   God  and  man  has  so   far   established 


OLD  SCOTTISH  LAW  AS  TO   PRISONERS'   WITNESSES.  353 

"'the   credit  of  two    witnesses   to   hold   their   concurring  Chap. xi, 
"  '  testimony  undoubtedly  true,  there  can  no  proof  be  ad-       

mitted  of  facts  contrary  to  the  nature  of  those  established 

"  '  by  their  joint  testimony.      More  especially  considering 

'  that  witnesses  verifying  a  crime  against  a  person  accused 

thereof  are  less  to  be  suspected  (particularly  at  the  instance 
"  '  of  the  public)  of  partiality  than  any  that  can  possibly  be 

adduced  by  the  parties  accused.'  In  short,  the  notion  of 
"  a  conjunct  probation  of  the  libel  and  defences  before  the 
"  assize  was  thought  too  dangerous  to  be  admitted :  the 
"prerogative  of  proving,  and  the  choice  of  the  witnesses, 
"  were  to  be  given  to  one  of  the  parties  only ;  and.  on  the 
"  evidence  taken  by  that  party  the  issue  was  entirely  to 
"  depend.  To  mention  but  one  instance  of  so  notorious  a 
"  point  of  practice  :  in  the  case  of  William  Sommerville,  who 
"  was  indicted  for  the  murder  of  his  mother  "  (in  1669),  "  a 
"  great  part  of  the  debate  turns  on  this  point, — To  whom 
"  should  the  prerogative  of  probation  be  given  ?  Should 
"the  prosecutor  be  allowed  to  prove  that  the  woman  died 
"  of  the  injuries  libelled,  or  the  panel  to  prove  that  she 
"  died  from  other  causes.  The  Court  were  of  opinion  for  the 
"  prosecutor ;  the  defences  were  repelled,  and  the  libel  alone 
"  was  remitted  to  an  assize."  In  course  of  time  it  appears  an 
exception  was  made  as  to  alibis,  though  Sir  George  M'Kenzie 
did  not  altogether  like  it.  He  thought  the  judges  ought  to 
hold  a  preliminary  inquiry  about  an  alibi,  and  dismiss  the 
libel  if  it  was  proved.  Thus  "  contrary  probations  "  would 
be  avoided,  and  the  plan  of  cutting  one  trial  into  two 
"  seems  to  be  our  law,  and  more  just  and  Christian  than 
"  conjunct  probations  a.Te."  This  strange  rule  was  not  abso- 
lutely given  up  in  Scotland  till  1735.  In  France  the  same 
practice  prevailed  much  later.  Montesqiiieu,  in  L Esprit  des 
Lois  (Book  xxix.  ch.  xi,),  comparing  the  law  of  France  and 
England  as  to  perjury,  says,  "  En  France  I'accus^  ne  produit 
"  point  ses  temoins,  et  il  est  tr^s  rare  qu'on  y  admette  ce 
"  qu'on  appelle  les  faits  justificatifs.  En  Angleterre  Ton 
"  re§oit  les  temoignages  de  part  et  d'autre."  Noticing  that 
in  England  perjury  was  not,  though  in  France  it  was,  capitally 
punished,  and  that  torture  was  practised  in  the  one  country 
VOL.  I.  A  A 


354        OLD  FRENCH  LAW  AS  TO  PRISONERS'  WITNESSES. 

Chap.  XI.  and  not  in  the  other,  he  observes  that  the  three  things  go 
together.  "  La  loi  Fran^aise  ne  craint  pas  tant  d'intimider- 
"  les  t^moins ;  au  contraire  en  cas  on  demande  qu'on  les- 
"  intimide  ;  elle  n'ecoute  que  les  t^moins  d'une  part,  ce 
"  sont  ceux  qixe  produit  la  partie  publique,  et  le  destin  de 
"  I'accuse  depend  de  leur  seul  tc^moignage." 

I  have  quoted  these  passages  at  length,  not  only  on  account 
of  their  curiosity,  but  because  they  seem  to  roe  to  throw 
much  light  on  the  spirit  of  the  old  criminal  procedure.  The 
true  reason  for  the  rule  as  to  restricting  the  defence  is 
obvious.  It  increased  the  power  of  the  prosecution,  and 
saved  trouble  to  those  who  conducted  it.  It  was  in  com- 
plete harmony  with  the  other  points  in  which  the  trials  of 
the  sixteenth  century  formed  a  contrast  to  those  of  our  own 
day.  In  the  present  day  the  rule  that  a  man  is  presumed  to 
be  innocent  till  he  is  proved  to  be  guilty  is  carried  out  in  all 
its  consequences.  The  plea  of  not  guilty  puts  everything  in 
issue,  and  the  prosecutor  has  to  prove  everything  that  he- 
alleges  from  the  very  beginning.  If  it  be  asked  why  an 
accused  person  is  presumed  to  be  innocent,  I  think  the  true 
answer  is,  not  that  the  presumption  is  probably  true,  but  that 
society  in  the  present  day  is  so  much  stronger  than  the  indi- 
vidual, and  is  capable  of  inflicting  so  very  much  more  harm 
on  the  individual  than  the  individual  as  a  rule  can  inflict 
upon  society,  that  it  can  afford  to  be  generous.  It  is,  how- 
ever, a  question  of  degree,  varying  according  to  time  and 
place,  how  far  this  generosity  can  or  ought  to  be  carried. 
Particular  cases  may  well  be  imagined  in  which  guilt,  instead 
of  innocence,  would  be  presumed.  The  mere  fact  that  a  man 
is  present  amongst  mutineers  or  rebels  would  often  be  suffi- 
cient, even  in  our  own  days,  to  cost  him  his  life  if  he  could 
not  prove  that  he  was  innocent. 

In  judging  of  the  trials  of  the  period  in  question  we  must 
remember  that  there  was  no  standing  army,  and  no  organised 
police  on  which  the  Government  could  rely ;  that  the  mainte- 
nance of  the  public  peace  depended  mainly  on  the  life  of  the 
sovereign  for  the  time  being,  and  that  the  question  between 
one  ruler  and  another  was  a  question  on  which  the  most 
momentous  issues,  religious,  political,  and  social,  depended- 


OBSERVATIONS  ON  OLD  SYSTEM.  355 

In  such  a  state  of  things  it  was  not  unnatural  to  act  on  a  Chap.  XL 
different  view  as  to  the  presumptions  to  be  made  as  to  g-ailt 
and  innocence  from  that  which  guides  our  own  proceedings. 

Suspected  people,  after  all,  are  generally  more  or  less 
guilty,  and  though  it  may  be  generous,  for  the  reason  already 
given,  to  act  upon  the  opposite  presumption,  I  do  not  see 
why  a  Government  not  strong  enough  to  be  generous  should 
shut  their  eyes  to  real  probabilities  in  favour  of  a  fiction. 
This  principle  must  be  admitted,  and  the  procedure  of  the 
period  in  question  must  be  judged  in  the  light  of  it,  before 
it  can  be  fairly  criticised.  I  think  such  criticism  would  not 
be  wholly  unfavourable  to  it.  The  trials  were  short  and  sharp  ; 
they  were  directed  to  the  very  point  at  issue,  and,  what- 
ever disadvantages  the  prisoner  lay  under,  he  was  allowed  to 
say  whatever  he  pleased  ;  his  attention  was  pointedly  called 
to  every  part  of  the  case  against  him,  and  if  he  had  a  real 
answer  to  make  he  had  the  opportunity  of  bringing  it  out 
effectively  and  in  detail.  It  was  but  seldom  that  he  was 
abused  or  insulted. 

The  general  impression  left  on  my  mind  by  reading  the 
trials  is  that,  harsh  as  they  appear  to  us  in  many  ways,  the 
real  point  at  issue  was  usually  presented  to  the  jury  not 
unfairly.  In  Ealeigh's  case,  for  instance,  the  substantial 
question  was.  Do  you,  the  jury,  believe  that  Ealeigh  was 
guilty  because  Cobham  said  so  at  one  time,  although  it  is 
admitted  that  he  afterwards  retracted  what  he  said  ?  In 
our  days  such  evidence  would  not  be  allowed  to  go  before  a 
jury,  and,  if  it  were,  no  jury  would  act  upon  it ;  ^  but  it  is  quite 
a  different  question  whether,  in  fact,  Cobham  did  let  out  the 
truth  in  what  he  said  against  Raleigh. 

It  is  very  questionable  to  me  whether  Throckmorton  was 
not  privy  to  Wyat's  rising,  and  there  can  be  no  reasonable 
doubt  that  the  Duke  of  Norfolk  intrigued  with  Queen  Mary 
in  a  manner  which  meant  no  good  to  Elizabeth,  whether  his 
conduct  amounted  technically  to  high  treason  or  not.  In  a 
word,  admit  that  the  criminal  law  is  to  be  regarded  as  the 
weapon  by  which  a  Government  not  very  firmly  established 

1  This  matter  is  fully  examined  in  Mr.  Gardiner's  Eistory  of  England,  i. 
pp.  96-108  ;  see  in  particular  pp.  106-7. 

A  A   2 


3^6  OBSERVATIONS   ON   OLD   SYSTEM. 

C-HAP.  XI.  is  to  defend  its  existence,  admit  also  that  a  person  generally 
suspected  of  being  disaffected  probably  is  disaffected,  and  that, 
even  if  he  has  not  done  the  particular  matters  imputed  to  him, 
he  has  probably  done  something  else  of  the  same  sort,  finally 
remember  that  the  political  contests  of  the  sixteenth  and 
seventeenth  centuries  turned  upon  the  bitterest  and  the  most 
deep-seated  differences  which  exist  amongst  men,  and  that 
they  appealed  io  the  strongest  of  human  passions,  and  the 
inference  will  be  that  the  trials  to  which  I  have  referred  were 
conducted  on  intelligible  principles,  and  that,  the  principles 
being  conceded,  their  application  was  not  unfair,  though  the 
punishments  inflicted  were  no  doubt  extremely  severe. 

These  trials  should  be  compared  not  to  the  English  trials 
of  later  times,  but  to  those  which  still  take  place  under 
the  Continental  system.  It  will  appear  hereafter  that  the 
criminal  procedure  of  modern  France  cannot  be  said  to 
contrast  advantageously  with  that  of  the  Tudors  and  early 
Stuarts,  so  far  as  concerns  the  interests  of  the  accused, 
and  the  degree  in  which  the  presumption  of  his  innocence 
is  acted  upon  in  practice. 

Of  course  our  modern  English  criminal  procedure  is  greatly 
superior  to  that  of  our  ancestors,  but  there  is  a  common 
tendency  to  depreciate  past  times  instead  of  trying  to  under- 
stand them.  The  consideration  and  humanity  of  our  modern 
criminal  courts  for  accused  persons,  are  due  in  a  great 
degree  to  the  fact  that  the  whole  framework  of  society,  and 
especially  the  Government  in  its  various  aspects — legislative, 
executive,  and  judicial,  is  now  immeasurably  stronger  than  it 
ever  was  before,  and  that  it  is  accordingly  possible  to  adjust 
the  respective  interests  of  the  community  and  of  individuals 
with  an  elaborate  care  which  was  formerly  impracticable. 

The  part  of  the  early  criminal  procedure  which  seems  to 
me  to  have  borne  most  hardly  on  the  accused  was  the 
secrecy  of  the  preliminary  investigation,  and  the  fact  that 
practically  the  accused  person  was  prevented  from  preparing 
for  his  defence  and  from  calling  witnesses.  I  am  by  no  means 
sure  that  the  practice  of  examining  the  prisoner  pointedly 
and  minutely  at  his  trial  was  not  an  advantage  to  him  if  he 
was  innocent ;  and  I  doubt  whether  the  absence  of  all  rules 


SECOND  PERIOD,  164O — 1660.  35/ 

of  evidence,  and  the  habit  of  reading  depositions  instead  of  Chap.  XI. 
having  the  witnesses  produced  in  court,  made  so  much  differ- 
ence  as  our  modern  notions  would  lead  us  to  believe.  The 
one  great  essential  condition  of  a  fair  trial  is  that  the  accused 
person  should  know  what  is  alleged  against  him,  and  have  a 
full  opportunity  of  answering  either  by  his  own  explanations 
or  by  calling  witnesses,  and  for  this  it  is  necessary  that  he 
should  have  a  proper  time  between  the  trial  and  the  prepa- 
ration of  the  evidence  for  the  prosecution.  The  manage- 
ment of  the  trial  itself  is  really  a  matter  of  less  importance. 
It  will  appear,  as  we  go  on,  that  the  trial  was  improved  first, 
and  the  preliminary  procedure  afterwards,  and  it  will  also 
appear  that  the  improvement  of  the  trial  did  little  good 
whilst  the  preliminary  procedure  remained  unaltered. 

II.— 1640— 1660. 

The  trials  which  took  place  between  the  meeting  of  the 
Long  Parliament  and  the  Restoration  illustrate  that  part  of 
our  history  which,  for  obvious  reasons,  has  aroused  the  strongest 
party  feelings.  The  only  matter  on  which  I  have  to  observe 
is  the  effect  which  it  produced  on  the  administration  of 
criminal  justice.  With  some  obvious  qualifications,  this  was 
almost  wholly  good.  The  qualifications  are  those  which  are 
inseparable  from  the  administration  of  justice  in  a  revolu- 
tionary period.  The  judicial  proceedings  of  such  a  period 
cannot,  in  the  nature  of  things,  be  regular,  because  no 
system  of  government  can  make  provision  for  its  own  altera- 
tion by  main  force.  A  forcible  revolution  implies  a  new 
departure,  and  new  institutions  based  upon  the  will  of 
the  successful  party,  and  necessitates  acts  which  involve 
a  greater  or  less  departure  from  legality.  This  was  no 
doubt  the  case  to  a  considerable  extent  in  the  English  Civil 
Wars.  In  some  of  the  impeachments  which  formed  the 
turning-points  in  the  struggle  between  the  King  and  the 
Parliament,  and  particularly  in  the  attainder  of  Strafford  ana 
the  execution  of  Laud,  the  law  was,  to  say  the  least,  violently 
strained.  The  trial  and  execution  of  Charles  I.  was  a  pro- 
ceeding which  cannot  be  criticised  at  all  upon  strictly  legal 


358  TRIALS   UNDER   COMMONWEALTH. 

Chap.  XI.  grounds.  The  establishment  of  the  High  Court  of  Justice 
which  tried  not  only  Charles  I.,  but  many  of  his  adherents, 
without  a  jury,  and  sentenced  them  to  death,  was  in  itself  a 
greater  departure  from  the  ordinary  practice  of  English 
criminal  justice  than  the  Star  Chamber.  It  supplies  the 
only  case  (so  far  as  I  know)  in  English  history  in  which 
judges  sitting  without  a  jury  (other  than  the  members  of 
courts-martial)  have  been  entrusted  with  the  power  of  life 
and  death.  Nevertheless,  after  making  every  allowance  on 
these  points,  it  must  be  remarked  that,  from  the  year  1640 
downwards,  the  whole  spirit  and  temper  of  the  criminal 
courts,  even  in  their  most  irregular  and  revolutionary  pro- 
ceedings, appears  to  have  been  radically  changed  from  what 
'  it  had  been  in  the  preceding  century  to  what  it  is  in  our  own 
days.  In  every  case,  so  far  as  I  am  aware,  the  accused  per- 
son had  the  witnesses  against  him  produced  face  to  face, 
unless  there  was  some  special  reason  (such  as  sickness)  to 
justify  the  reading  of  their  depositions.  In  some  cases  the 
prisoner  was  questioned,  but  never  to  any  greater  extent  than 
that  which  it  is  practically  impossible  to  avoid  when  a  man 
has  to  defend  himself  without  counsel.  When  so  ques- 
tioned, the  prisoners  usually  refused  to  answer.  The  prisoner 
was  also  allowed,  not  only  to  cross-examine  the  witnesses 
against  him  if  he  thought  fit,  but  also  to  call  witnesses  of  his 
own.  Whether  or  not  they  were  examined  upon  oath  I  am 
unable  to  say. 

These  great  changes  in  the  procedure  took  place  appa- 
rently spontaneously,  and  without  any  legislative  enactment. 
This,  no  doubt,  favours  the  view  that  the  course  taken  in  the 
political  trials  of  the  preceding  century  either  really  was 
or  else  was  regarded  as  being  illegal.  If  they  were,  the  word 
illegal  must  have  been  construed  in  a  sense  closely  approach- 
ing to  unjust  or  immoral.  I  know  of  no  precise,  clear 
authority  for  the  proposition  that  a  prisoner  is  entitled  to 
have  the  witnesses  against  him  examined  in  his  presence, 
or  that  he  is  entitled  to  call  witnesses  or  examine  them  upon 
oath  till  long  after  the  Revolution ;  and  I  have  given  my  reasons 
for  thinking  that  nothing  of  the  kind  was  involved  in  the 
original  institution  of  trial  by  jury,  though  it  is  probable  that 


"GOOD  OLD  LAWS  OF  ENGLAND."  359 

in  cases  in  which  the  Government  were  not  directly  inter-  Chap.  xi. 

ested,  the  practice  may  have  come  to  prevail.     Looking  at       

the  matter  in  a  purely  legal  point  of  view,  it  is  diflScult  to  say 
that  the  one  practice  was  more  legal  than  the  other ;  but 
there  is  no  doubt  that  the  later  practice  was  not  only  more 
humane,  but  more  conducive  to  the  discovery  of  truth  than 
i;he  earlier  one,  and  in   the  seventeenth   century  this  was 
enough,  not  only  to  establish  its  legality,  but  also  to  establish 
the   fact,  supposed  to   be  essential  to  its  legality,  that   it 
formed  a  part  of  the  "  good  old  laws   of  England."     The 
belief  in  a  golden  age  of  law  in  some  indefinite  past  time 
has  been  common  in  this  country  from  immemorial  antiquity. 
After  the  Norman  Conquest  it  was  supposed  to  have  existed 
under  Edward  the  Confessor  or  King  Alfred,  and  the  halo 
which   surrounded  their  names  was  afterwards  transferred 
to   "the  common  law  of  England,"  which   was  sometimes 
called  by  the  more  attractive  title  of  "  common  right."     It 
is   impossible  to  study  the  proceedings  of  the  seventeenth 
century  without  perceiving  that  the  line  between  what  was 
legal,  in  the  strict  sense  of  the  word,  and  what  was  morally 
just  was  then  far  less  strongly  drawn  than  it  is  now.     It  was, 
indeed,  impossible  that  it  should  not  be  so.     The  whole,  or 
all  but  the  whole,  of  the  law  relating  to  procedure  was  un- 
written.    Coke's  Third  Institute  was  the  principal  authority 
as  to  the  criminal  law,  and  the  little  which  he  says  on  the 
subject  is  fragmentary  and  incomplete.     Besides   this,  the 
whole   policy  of  the  Parliamentary  party  was  to  represent 
their  proceedings  as  being  justified  by  law,  and  that  of  their 
opponents  as  being  illegal  and   oppressive.     That   the   law 
itself  might  be  oppressive  was  an  admission  which  they  could 
never  afford  to  make.     As  far  as  I  can  foim  an  opinion  as  to 
what  really  was   the   law,  I   should   say  that  some   of  its 
leading  principles,  especially  the  two  well-known  phrases  of 
Magna  Charta  were  on  their  side.     On  many  other  points, 
the  law,  properly  so  called,  was  either  absolutely  silent  or 
vague  and  uncertain.     In  some  it  may  have  been  opposed  to 
i;hem.     Their   case,    accordingly,  was  that   all   express  law, 
which  they  thought  just,  was  law  in  a  transcendent  sense ; 
;that   whatever  they   considered  just,  though  not  expressly 


360  LORD  PRESIDENT  KEBLE   ON  LOVE'S  CASE. 

Chap.  XI.  enacted,  was  also  law ;  and  that  express  laws  which  they  con- 

sidered  unjust  were  to  be  explained  away  according  to  their 

views  of  justice.     This  way  of  looking  at   the   subject  is 

strikingly  expressed  by  Keble,  who  acted  as  Lord  President 

of  the  High  Court  of  Justice  at  the  trial  of  Love.     ^  "  There 

"  is  no  law  in  England  but  is  as  really  and  truly  the  law  of 

"  God  as  any  Scripture  phrase,  that  is  by  consequence  from 

"  the  very  texts  of  Scripture  :  for  there  are  very  many  con- 

"  sequences  reasoned  out  of  the  texts  of  Scripture :  so  is  the 

"  law  of  England  the  very  consequence  of  the  very  Decalogue 

"  itself;  and  whatsoever  is  not  consonant  to  Scripture  in  the 

"  law  of  England  is  not  the  law  of  England,  the  very  books 

"  and  learning  of  the  law :  whatsoever  is  not  consonant  to 

"  the  law  of  God  in  Scripture,  or  to  right  reason  which  is 

"  maintained  by  Scripture,  whatsoever  is  in  England,  be  it 

"  Acts  of  Parliament,  customs,  or  any  judicial  acts  of  the 

"  Court,  it  is  not  the  law  of  England,  but  the  error  of  the 

"  party  which  did  pronounce  it ;  and  you,  or  any  man  else  at 

"  the  bar,  may  so  plead  it." 

I  will  now  give  a  few  illustrations  of  the  points  to  which  I 
have  referred.  ^The  proceedings  upon  the  impeachment  of 
Lord  Strafford  may  stand  as  an  example  of  the  proceedings 
by  impeachment,  which  were  the  great  legal  weapon  of  the 
Parliamentary  party  in  their  struggle.  The  most  interesting 
questions  connected  with  the  trial  I  must  pass  over,  but  I 
may  make  a  few  remarks  on  its  more  technical  aspects. 

Strafford  was  accused  on  the  11th  November,  1640.  He 
was  at  once  committed  to  custody,  and  on  the  25th  Novem- 
ber twenty-eight  articles  of  impeachment  were  delivered  in 
against  him.  He  delivered  answers  in  detail  to  each  charge, 
and  each  charge  was  heard  severally  and  successively.  The 
trial  lasted  from  March  22nd  to  April  19th,  when  the  im- 
peachment was  discontinued,  and  the  bill  of  attainder  substi- 
tuted for  it.     The  bill  received  Charles's  assent  on  the  10th 

1  5  St.  Tr.  172.  The  grammar  of  this  passage  is  not  very  plain,  but  its 
general  sense  is  obvious.     It  would  be  easy  to  multiply  illustrations. 

"  There  is  a  compressed  account  of  the  proceedings  in  3  St.  Tr.  1381 — 1536, 
to  which  I  refer  as  being  sufficiently  full  for  my  pm-pose.  The  trial  itself  fiUs 
a  folio  volume  in  Rushworth.  See  too  Mr.  Gardiner's  Fall  of  the  Monarchy. 
ii.  pp.  100-180. 


steaffoed's  impeachment.  361 

May,  and  Strafford  was  executed  on  the  12th.  The  different  Chap.  xi. 
charges  were  opened  by  different  managers,  and  upon  each 
charge  witnesses  were  called,  and  the  prisoner  was  heard  in 
his  own  defence.  The  effect  of  this  was  that  he  underwent 
as  many  trials  as  there  were  articles  in  the-  impeachment. 
He  does  not  appear  to  have  been  questioned  directly  and  in 
set  terms ;  but  such  a  mode  of  procedure  practically  amounted 
to  questioning,  and  the  mode  of  procedure  by  articles  and 
detailed  written  answers  to  each  had  the  same  effect. 

I  may  here  observe  that  the  practice  pursuedjin  Strafford's 
case  of  putting  in  a  detailed  answer  to  detailed  articles  of 
impeachment  was  followed  in  most  cases  of  Parliamentary 
impeachment  down  to  and  including  the  impeachment  of 
Lord  Macclesfield  in  1724.  ^  On  the  impeachment  of  Warren 
Hastings  an  answer  to  each  charge  was  put  in,  and  the 
reading  of  the  charges  and  answers  occupied  two  days. 
Hastings's  counsel,  2  however,  strenuously  objected  to  the  evi- 
dence on  each  charge  being  taken,  and  to  the  defence  being 
made,  separately,  and  they  carried  their  point.  In  the  case  of 
Lord  Melville,^  the  answer  amounted  merely  to  a  general  plea 
of  not  guilty,  and  the  whole  of  the  evidence  against  him  was 
given  before  he  was  called  upon  for  his  defence. 

So  far  as  the  mere  procedure  went,  the  management  of 
Strafford's  impeachment  seems  to  have  been  conspicuously 
fair,  though  it  must  not  be  forgotten  that  he  was  tried  before 
a  tribunal  (the  House  of  Lords)  which  was  far  from  being 
unfavourable  to  him,  and  which  was  at  the  time  extremely 
jealous  of  any  invasion  by  the  Commons  of  their  privileges. 
Every  fact  alleged  against  him  was  made  the  subject  of 
proof  by  witnesses  produced  in  court,  some  of  whom  *he 
successfully  cross-examined.  In  some  instances,  also,  rules 
of  evidence  were  recognised  and  enforced.  ^Thus,  one  of 
the  charges  against  him  was,  issuing  a  warrant  to  Savile 
to  quarter  soldiers  upon  the  lands  and  houses  of  certain 
persons,  in  order  to  extort  money  from  them.  An  attempt 
was  made  to  prove  this  by  the  production  of  a  copy  of  the 

1  See  Annual  Begister  for  1788. 

a  Mill's  Eistory  of  British  India,  v.  57.  '  29  iSt.  Tr.  622. 

*  See  e.g.  3  Ih.  1422.  ^  '  lb.  1393  and  1434. 


362  STRAFFORD'S  ATTAINDER. 

Chap.  XI.  warrant.  Strafford  objected,  alleging  that  the  original  ought 
to  be  produced.  The  Lords  upheld  this  objection,  but  ad- 
mitted secondary  evidence  of  the  original  in  a  manner  which 
would  not  at  present  be  considered  regular. 

The  most  curious  point  in  the  proceedings  in  reference  to 
evidence  arose  upon  the  notes  of  what  was  said  to  have 
passed  at  the  Council  Board  (as  taken  by  Sir  Henry  Vane 
the  father).  He  deposed  that  Strafford  had  advised  the  King 
to  bring  over  the  Irish  army  to  subdue  England.  No  other 
person  present  on  the  occasion  heard  any  such  statement 
made,  and  Sir  Henry  Vane  himself  spoke  with  some  slight 
hesitation.  The  original  notes  had  been  delivered  up  to 
Charles  I.  and  had  been  destroyed  by  him.  It  was  contended 
by  and  for  Strafford,  first,  that  Vane  was  mistaken,  and,  next, 
that  if  he  spoke  the  truth,  he  was  only  a  single  witness.  In 
consequence  of  this,  Pym  declared  that  he  had  a  copy 
privately  made  by  young  Sir  Henry  Vane  of  the  notes 
made  by  his  father  at  the  Council,  which  young  Vane  had 
copied  when  entrusted  by  his  father  for  another  purpose 
with  the  keys  of  his  papers.  These  notes,  it  was  main- 
tained, when  established  by  young  Vane's  evidence,  would 
be  equivalent  to  a  second  witness.  According  to  our 
modern  view,  the  utmost  use  to  which  the  original  notes, 
if  produced,  could  have  been  put  would  have  been  to  re- 
fresh the  memory  of  the  person  by  whom  they  were  taken. 
The  view  suggested  by  Pym  was  not,  however,  insisted  upon. 
In  fact,  this  matter  was  the  turning  point  of  the  trial. 
Legally,  if  the  words  were  spoken,  which  must  for  ever 
remain  in  doubt,  it  seems  to  me  that  they  could  not  upon 
any  theory  whatever  amount  to  treason. 

On  the  substantial  merits  of  the  conduct  of  Parliament 
towards  Strafford  it  is  not  my  intention  to  express  any 
opinion.  The  bill  of  attainder  clearly  shows  on  the  one 
hand  a  consciousness  that  the  prosecutors  had  failed  to  prove 
that  Strafford  was  guilty  of  treason,  and,  on  the  other,  a  deter- 
mination to  assert,  or  to  go  as  near  as  they  could  to  asserting, 
that  he  was  guilty  of  that  crime.  It  seems  to  me  that  the 
real  question  is,  whether  Strafford's  conduct  had  been  so 
criminal,  and  whether  his  life  was  so  dangerous  to  the  State, 


STRAFFORD'S  CASE,  363 

that  Parliament  would  have  been  justified  in  passing  a  bill  Chap.  xi. 
«nacting  simply,  and  without  any  recital,  that  he  should  be 
put  to  death.  If  so,  the  introduction  into  the  bill  of  recitals 
of  a  doubtful  character  (for  I  cannot  call  them  absolutely  and 
unquestionably  false)  ought  to  be  regarded  simply  as  an 
attempt  to  disguise  the  harshness  of  the  proceeding.  If  not, 
the  proceeding  itself  was  unjustifiable.  Hallam  thinks 
that  the  fifteenth  article  of  the  impeachment  approached 
more  nearly  to  a  charge  of  treason  than  any  other. 
The  article  charges  in  substance  that  Strafford  taxed 
•certain  towns  in  Ireland  in  an  arbitrary  way,  and 
■caused  the  sums  to  be  levied  by  quartering  troops  on  the 
inhabitants  till  they  paid  the  money.  This  is  described  as 
treason  by  levying  of  war,  and  also  as  treason  under  two 
Irish  Acts,  one  of  the  reign  of  Edward  III.  and  the  other  of 
the  reign  of  Henry  VI.  One  of  these  Acts  (7  Hen.  6) 
provides  that  "  whosoever  shall  cess  men  of  war  in  His 
"  Majesty's  dominions,  shall  be  thought  to  make  war  against 
"  the  King,"  and  be  punished  as  a  traitor.  The  Act  .  of 
Edward  III.  is  similar.  The  words  of  the  Act  of  Henry  VI. 
do  undoubtedly  cover  Strafford's  conduct,  but  each  of  these 
Acts  appears  to  have  been  directed  against  the  exactions  and 
•oppressions  of  private  persons,  and  not  against  the  oppres- 
sive execution  of  legal  process  by  public  authority ;  and 
Lord  Strafford  showed  that  it  had  been  a  common  practice 
with  his  predecessors  to  levy  taxes  and  enforce  the  execution 
of  judgments  as  he  had  done.  Besides  this,  it  was  very 
doubtful  whether  the  Acts  in  question  had  not  been  repealed. 
^  Hallam  lays  little  stress  upon  the  Irish  Acts,  but  contends 
that  "it  cannot  be  extravagant  to  assert "  that  if  a  military 
officer  were  to  levy  taxes  by  quartering  troops  on  inhabitants 
^'  in  a  general  and  systematic  manner,  he  would,  according 
^'  to  a  warrantable  construction  of  the  statutes,  be  guilty  of 
""  the  treason  called  levying  of  war  against  the  King. "  He 
thinks,  however,  that  there  was  no  evidence  that  Strafford 
did  act  in  a  general  and  systematic  way,  and  this,  no  doubt, 
is  true.  Whether  such  an  interpretation  "  could  be  extra- 
•"  vagant "  it  is  difficult  to  say,  and  it  must  be  admitted  that 
1  Const.  Hist.  ii.  107. 


364  TfilAL   OF   CHARLES   I. 

Chap.  xi.  it  miglit  be  said  to  be  "  warrantable  "  by  reference  to  some  of 
the  cases  which  have  been  decided  upon  the  25  Edw.  3 ; 
but,  however  that  may  be,  I  think  it  is  at  least  equally  clear 
that  it  would  not  be  correct.  The  abuse  of  military  power  to 
the  oppression  of  the  subject  is  no  more  the  same  thing  as 
an  attempt  to  subvert  the  established  Government  by  force, 
than  perjury  which  misleads  is  the  same  thing  as  bribery 
Avhich  corrupts  a  judge. 

The  proceedings  against  King  Charles  I.  form  a  remark- 
able illustration  of  the  contrast  which  exists  between  the 
administration  of  justice  before  and  after  the  Long  Par- 
liament and  the  Civil  War.  He  was,  as  is  known  to  every 
one,  condemned  principally  for  refusing  to  plead  to  the 
charges  made  against  him  by  the  High  Court  of  Justice,  and 
this  was  nearly  the  only  step  in  the  whole  of  his  career  in 
which  he  was  not  only  well  advised,  but  perfectly  firm  and 
dignified  in  his  conduct.  If  he  had  pleaded  he  would,  of  course, 
have  been  convicted.  The  Court,  however,  did  not  put  their 
sentence  solely  on  that  ground.  They  took  evidence  to  satisfy 
their  consciences,  and  there  are  few  stranger  documents  than 
^  the  depositions  of  the  witnesses  who  would  have  been  called 
against  him  if  he  had  pleaded,  and  whom  the  Court  thought 
it  necessary  to  hear.  They  prove  his  presence  at  the  difierent 
battles,  and  the  fact  that  people  were  killed  there,  j  ust  as  wit- 
nesses in  the  present  day  would  prove  the  facts  about  any 
common  case  of  theft  or  robbery.  For  instance  :  "  Samuel 
"  Morgan,  of  Wellington,  in  the  county  of  Salop,  felt-maker, 
"  sworn  and  examined,  deposeth,  that  he,  this  deponent,  upon 
"  a  Monday  morning  in  Keynton  field,  saw  the  King  upon  the 
"  top  of  Edge  Hill,  in  the  head  of  the  army ;  .  .  .  .  and  he 
"  saw  many  men  killed  on  both  sides,  at  the  same  time  and 
"  place."  "  Gyles  Gryce  .  .  .  saw  the  King  in  front  of  the 
"  army  in  Naseby  Field,  having  back  and  breast  on."  Also, 
he  "  saw  a  great  many  men  killed  on  both  sides  at  Leicester,, 
"  and  many  houses  plundered." 

The  punctilious  and  almost  pedantic  formality  of  providing 
such  witnesses  for  the  purpose  of  proving  such  facts  is  cha- 
racteristic,  and  shows  how  deeply  men's   minds   had   been 
1  i  St.  Tr.  1101—1113. 


LILBURN's  trial  under  CROMWELL.  365 

impressed  with  the  importance  of  proceeding  upon  proper  and  Chap.  XI. 
formal  evidence  in  criminal  cases. 

None   of  the  trials   under  the   Commonwealth  are  more 
remarkable  than  two  prosecutions  of  ^  John  Lilburn,  who  had 
suffered  so  severely  at  the  hands  of  the  Star  Chamber.     The 
trial  in  1649  was  for  publishing  pamphlets  denouncing  the 
Parliament  and  Cromwell,  in  contravention  of  ^  acts  of  May 
and  July,  1649,  which  made  it  treason  to  "  maliciously  and 
"  advisedly  publish  by  writing,  printing,  or  openly  declaring 
"  that  the  said  Government  is  tyrannical,  usurped,  or  unlaw- 
"  ful."     That  Lilburn  had  published  the  pamphlets,  and  that 
the  pamphlets  did  in  express  words  assert  that  the  Government 
was  tyrannical,  was  proved  beyond  all  possibility  of  doubt ; 
but  he  was  acquitted  ;  "  which,"  says  Clarendon,  "  infinitely 
"  enraged  and  perplexed  Cromwell,  who  looked  upon  it  as  a 
"  greater  defeat  than  the  loss  of  a  battle  would  have  been." 
It  is  difficult  to  give  an  idea,  in  any  moderate  compass,  of  the 
trial   which   ended   in   this  -  manner,    but   it   was    on    many 
accounts  remarkable.      Lilburn,  who   had  been  nicknamed 
"Freeborn  John"  on  account  of  his  continual  brags  about 
freeborn  Englishmen,  Magna  Cliarta,  and  the  good  old  laws 
of  England,  entered,  on  each  of  his  trials,  into  a  regular  battle 
with  the  Court,  and  appealed  to  the  jury  for  protection.     He 
began  by  refusing  to  plead,   or  even  to  hold  up  his  hand, 
until  he   had  made  a  ^  long  speech  upon  all  sorts  of  topics 
which  the  Court  was  weak  enough  to  listen  to  without  inter- 
rupting him.     He  then  got  into  an  almost  endless  discussion 
as  to  pleading  not  guilty.     He  meant  to  say  that  he  did  not 
wish  by  pleading  to  waive  any  objections  which  might  lie  to 
the  indictment  and  that  he  did  wish  to  have  a  copy  of  the  in- 
dictment and  counsel  assigned  to  him,  to  see  whether  or  not  it 

^  BesiJes  the  Star  Chamber  prosecution  already  noticed  Lilburn  was  tried 
for  his  life  fonr  times,  namely  (as  he  said),  first  in  London  in  1641,  "before 
"  the  House  of  Peers  ;"  next  at  Oxford  for  levying  war  against  the  King  at 
Brentford  (where  he  had  been  taken  prisoner),  when  his  life  was  saved  by  the 
Parliament's  threat  to  treat  the  Cavalier  prisoners  as  he  might  be  treated  ; 
again  for  high  treason  in  1649,  and  again  for  felony  in  returning  from 
banishment  in  1653.  Of  his  first  and  second  trials  on  capital  charges  there 
are  no  reports.  There  is  an  account  of  the  third  trial  in  i  St.  Tr.  1269,  and 
of  the  fourth  in  5  II.  407.  The  last,  which  was  written  by  Lilburn  him- 
self, is  left  incomplete. 

2  Printed  in  4  St.  Tr.  1347—1351.  ^  lb.  1270—1283. 


3^6  lilbuen's  trial  under  cromwell. 

Chap.  XI.  was  open  to  any  objection.     He  urged  these  contentions  with 

such  pertinacity,  and  managed  to  introduce  so  many  collateral 

topics  into  the  discussion,  that  the  whole  day  was  spent  in  it. 

The  Court  showed,  as  it  seems  to  me,  little  either  of  firmness- 

or  dignity  in  the  manner  in  which  they  discussed  the  subject, 

and  argued  with  the  prisoner.      They  told  him,  time  after 

time,  that  he  was  not  entitled  to  what  he  demanded,  but  they 

shrank  apparently  from  saying,  as,  the  charge  being  treason,. 

they  undoubtedly  might  have  done,  that  if  he  did  not  plead 

directly  guilty  or  not  guilty,  they  would  pass  judgment  on  him. 

One  point  in  the  discussion  is  curious  enough  to  be  noticed 

.  specifically.     On  one  occasion,  when  he  was  pressed  to  plead, 

Lilburn  said,  "  By  the  laws  of  England,  I  am  not  to  answer 

"  to  questions  against  or  concerning  myself"     To  this  Keble, 

who  was  first  on  the  commission,  replied,  "  You  shall  not  be 

"  compelled  ; "  and  he  afterwards  added,  "  The  law  is  plain, 

"  that  you  are  positively  to  answer  guilty  or  not  guilty."     Ta 

which  Lilburn  replied,   "  By  the  Petition  of  Eight,  I  am  not 

"  to  answer   any  questions   concerning   myself"       I  cannot 

understand  what  Lilburn  can  have  been  thinking  of  in  this 

observation,  for  there  is  not  a  word  in  the  Petition  of  Right 

which  bears  upon  the  subject,  but  his  argument  shows  how 

strong  the  popular  feeling  was  on  the  subject  of  questioning 

prisoners.     After  infinite  wrangling  Lilburn  was  got  to  plead 

not  guilty,  after  which  the  trial  proceeded  with  interruptions 

and  wrangling  at  every  instant.     The  printing  of  the  books 

was  proved,  and  the  prisoner  was  asked  on  several  occasions 

whether  he  owned  them  to  be  his.      He  uniformly  replied 

that  the  Petition  of  Right  taught  him  to  answer  no  questions 

about  himself,  ^ "  and  I  have  read  of  the  law  to  be  practised  by 

"  Christ  and  his  apostles."   At  last,  after  endless  "  struggling," 

as  Lilburn  calls  it,  he  arrived  at  his  defence,  which,  stripped 

of  the  innumerable  quibbles  and  topics  of  grievance  in  which 

he  wrapped  it  up,  amounted  to  this,  that  the  Act  under  which 

1  In  answer  to  one  question  he  said,  "  I  am  upon  Christ's  terms.  When 
"  Pilate  asked  him  whether  he  was  the  Son  of  God,  and  adjured  him  to  tell 
"  him  whether  he  was  or  no,  he  replied,  '  Thou  sayest  it.'  So  say  I,  thou  Mr. 
"  Prideaux"  (the  Attorney-General),  "sayest  it,  these  are  my  bOoks.  But 
"  prove  it."  Lilburn  did  not  perceive  what  an  astonishing  saying  he  was- 
putting  into  Christ's  mouth,  who,  according  to  his  view,  refused  to  admit  that 
he  was  the  Son  of  God,  and  called  upon  Pilate  to  prove  it.     (4  St.  Tr.  1342.) 


lilbuen's  second  trial.  367 

he  was  indicted  was  bad  and  tyrannical,  that  he  was  a  better  Chap.  xi. 

patriot  than  those  who  prosecuted  him,  and  had  done  and 

suffered  much  in  the  popular  cause  ;   and  that  ^ "  The  jury  by 

"  law  are  not  only  judges  of  fact  but  of  law  also ;  and  you 

"  that   call   yourselves  judges  of  the   law   are  no  more  but 

"  Norman  intruders ;  and  in  deed  and  in  truth,  if  the  jury 

"  please,   are  no  more  but  ciphers  to  pronounce   their  ver- 

"  diet."     This,  no  doubt,  was  the   point  which  secured  his 

acquittal. 

Lilburn  was  afterwards  banished  by  Act  of  Parliament, 
and  it  was  provided  that  if  he  returned  from  his  banishment 
he  should  be  guilty  of  felony.  He  did  return,  and  ^  his  trial 
on  that  occasion  was  even  more  stormy  than  the  earlier 
one.  His  own  account  of  its  "  furious  hurley  hurleys  " 
is  very  curious,  as  far  as  it  goes.  He  performed  the  feat 
which  no  one  else  ever  achieved,  of  extorting  from  the  Court 
a  copy  of  bis  indictment  in  order  that  he  might  put  it  before 
counsel  and  be  instructed  as  to  the  objections  which  he  might 
take  against  it.  His  substantial  defence  on  that  occasion  also 
was,  that  the  Act  applied  to  him  was  tyrannical,  and  that  the 
jury  were  judges  of  the  law  apparently  in  such  a  sense, 
that  they  need  not  put  it  in  force  unless  they  approved  of  it. 
He  was  acquitted  again,  and  '  the  jury  were  examined  before 
the  Council  of  State  as  to  their  reasons  for  their  verdict.  Many 
of  them  refused  to  answer,  but  several  of  them  said  that  they 
regarded  themselves  as  judges  of  the  law  as  well  as  of  the 
fact,  whatever  the  judges  might  say  to  the  contrary. 

Such  incidents  as  the  acquittals  of  Lilburn  are  defeats 
which  every  revolutionary  Government  is  exposed  to  if  their 
proceedings  are  disapproved  of  by  any  considerable  section  of 
the  community;  and  parallels  to  Lilburn' s  trial  might  be 
found  in  many  of  the  political  prosecutions  which  took  place 
under  Louis  Philippe.  When  an  ancient  and  well-established 
system  of  government  has  been  overthrown  by  force,  that 
which  is  established  in  its  place  can  hardly  expect  to  have  its 
laws  supported  and  carried  into  execution  merely  as  law, 
and  apart  from  the  personal  opinion  which  jurors  may  have 
of  their  justice..  Even  under  the  quietest  and  best-established 
1  4  St.  Tr.  1379.  ^  5  /j.  407.  3  75.  445—450. 


368  CASE   OF   FAULCONEE. 

Chap.  XI.  Governments  it  not  unfrequently  happens  that  a  jury  will 
refuse  to  enforce  the  law  if  they  think  it  hard  in  a  particular 
case.  Instances  of  this  have  occurred  even  in  our  own  times. 
In  further  illustration  of  the  remarks  already  made  as  to 
the  character  of  the  trials  under  the  Commonwealth,  I  may 
refer  to  the  ^  trial  of  Colonel  Morris,  for  treason,  at  the  York 
Assizes,  in  1650,  and  to  the  trial  ^  of  Love,  for  treason,  by 
the  High  Court  of  Justice.  An  unfair  advantage  is  said  to 
have  been  taken  of  Morris  in  disallowing  one  of  his  challenges 
on  a  very  technical  ground,  but,  otherwise,  each  trial  is  fair 
and  patient  enough,  and  conducted  in  a  manner  closely 
resembling  our  modern  practice. 

Few  trials  are  reported  in  the  State  Trials  during  the 
Commonwealth  for  offences  not  connected  with  politics,  but  I 
may  mention  one  on  account  of  the  way  in  which  it  illustrates 
the  absence  of  rules  of  evidence  in  the  seventeenth  century. 
8  In  1653,  Benjamin  Faulconer  was  tried  for  perjury  before 
the  Commissioners  for  sequestrations  and  compositions  of  the 
Royalists'  estates.  He  had  made  statements  the  effect  of 
which  was  that  the  estates  of  Lord  Craven  were  sequestrated. 
Upon  this  he  was  *  indicted  for  perjury  by  the  Craven 
family,  in  the  Upper  Bench,  as  the  Court  of  King's  Bench 
was  then  called.  Many  witnesses  were  called  to  prove  the 
falsehood  of  the  matter  sworn,  after  which  °  others  were  called 
to  show  that  Faulconer  was  a  man  of  bad  character.  They 
testified  to  his  having  drunk  the  devil's  health  in  the  street 
at  Petersfield ;  to  his  having  used  bad  language  and  been 
g-uilty  of  gi'oss '  immorality ;  and,  lastly,  to  his  having  been 
committed  on  suspicion  of  felony  and  having  "  a  common 
"  name  for  a  robber  on  the  highway."  As  Faulconer's  evidence 
had  been  accepted  and  acted  upon  by  Parliament,  it  is 
unlikely  that  he  should  have  been  treated  at  his  trial  with 
any  special  harshness.  It  would  seem,  therefore,  that  at  this 
time  it  was  not  considered  irregular  to  call  witnesses  to  prove 
1  prisoner's  bad  character  in  order  to  raise  a  presumption  of 
his  guilt. 

1  4  St.  Tr.  1250.  2  5  jj^  43,  3  ^  ^j  323_ 

'  It  is  remarkable  that  the  indictments  do  not  aver  the  materiality  of  the 
matter  Bwom. 
5  4  St.  Tr.  354—356. 


THIRD  PERIOD,  1660 — 1678.  369 


III.— 1660— 1678. 

The  reigns  of  Charles  II.  and  James  II.  form  perhaps  the  Chap.  XI. 
most  critical  part  of  the  history  of  England,  as  the  whole 
course  of  our  subsequent  history  has  been  determined  by  the 
result  of  the  struggles  which  then  took  place.  At  every 
critical  point  in  those  struggles  a  leading  part  was  played  by 
the  courts  of  criminal  justice,  before  which  the  contending 
parties  alternately  appeared,  charged  by  their  adversaries 
with  high  treason,  generally  on  perjured  evidence,  and  before 
judges  who  were  sometimes  cowardly  and  sometimes  corrupt 
partisans. 

The  history  of  the  most  important  of  these  proceedings 
has  been  so  often  related  that  I  should  not  feel  justified, 
even  if  my  space  allowed  me,  in  attempting  to  go  into  their 
circumstances  minutely ;  but  there  is  still  room  for  some  ob- 
servations upon  them  from  the  merely  legal  point  of  view. 
I  do  not  think  that  the  injustice  and  cruelty  of  the  most 
notorious  of  the  trials — the  trials  for  the  Popish  Plot,  or 
those  which  took  place  before  Jeffreys — have  been  in  any 
degree  exaggerated.  The  principal  actors  in  them  have 
incurred  a  preeminent  infamy,  in  mitigation  of  which 
I  have  nothing  to  say,  but  I  am  not  sure  that  their 
special  peculiarity  has  been  sufficiently  noticed.  It  may  be 
shortly  characterised  by  saying  that  the  greater  part  of 
the  injustice  done  in  the  reigns  of  Charles  II.  and 
James  II.  was  effected  by  perjured  witnesses,  and  by  the 
rigid  enforcement  of  a  system  of  preliminary  procedure 
which  made  the  detection  and  exposure  of  perjury  so  diffi- 
cult as  to  be  practically  impossible.  There  was  no  doubt  a 
certain  amount  of  high-handed  injustice,  and  the  disgusting 
brutality  of  Jeffreys  naturally  left  behind  it  an  ineffaceable 
impression ;  but,  when  all  this  has  been  fully  admitted,  I 
think  it  ought  in  fairness  to  be  added  that  in  the  main 
the  procedure  followed  in  the  last  half  of  the  seventeenth 
century  differed  but  little  from  that  which  still  prevails 
amongst  us ;  that  many  of  the  trials  which  took  place — 
especially  those  which  were  not  for  political  offences — were 

VOL.   I.  B   B 


370  TRIALS  OF   THE  REGICIDES. 

Chap.  XI.  perfectly  fair ;  and  that  even  in  the  case  of  the  political  trials  the- 
injustice  done  was  due  to  political  excitement,  to  individual 
wickedness,  and  to  the  harsh  working  of  a  system  which, 
though  certainly  defective  in  admitting  of  the  possibility  of 
being  harshly  and  unjustly  worked,  was  sound  in  many  respects. 

The  number  of  the  trials  reported  during  these  reigns  is- 
so  great  (they  fill  seven  volumes  of  the  State  Trials)  that  it 
is  necessary  to  notice  them  in  groups,  and  to  pass  over 
unnoticed  many  curious  details. 

The  first  set  of  trials  after  the  Eestoration  are  ^  those  of 
the  regicides '  in  1660,  to  which  may  be  added  the  trial  of 
Sir  H.  Vane  the  younger  in  1662.  Of  the  trials  of  the 
regicides  there  is  little  or  nothing  to  be  said  from  the  legal 
point  of  view.  That  they  had  compassed  and  imagined  the 
death  of  the  King,  and  had  (as  the  indictment  averred)  dis- 
played that  compassing  and  imagination  by  cutting  off  his- 
head,  admitted  of  no  doubt  at  all,  and  it  was  equally  plain  that 
this  was  treason  within  the  25  Edw.  3.  Their  real  de- 
fence was  that  Charles  had  in  fact  ceased  to  reign,  and  that 
they  acted  under  the  authority  of  those  who,  for  the  time 
being,  were  in  fact  the  rulers  of  the  country;  but  the 
very  point  of  the  Restoration  and  of  the  prosecution  was 
that  this  defence  was  not  sufficient,  that  the  civil  war  had 
been  a  successful  rebellion,  that  the  proceedings  of  the  part 
of  the  House  of  Commons  which  exercised  the  powers  of 
Parliament  in  1649  were,  so  to  speak,  a  rebellion  upon  a 
rebellion,  and  that  the  execution  of  Charles  was  a  combina- 
tion of  treason  and  murder.  As  a  practical  proof  of  this, 
Denzil  Hollis  and  the  Earl  of  Manchester — who  had  been 
two  of  the  six  members  arrested  by  Charles  I. — and  Annesley, 
who  was  a  member  expelled  by  Pride,  were  members  of 
the  Commission  of  Oyer  and  Terminer,  which  tried  Charles's 
judges.  Hollis  and  Annesley  took  an  active  part  in  the  pro- 
ceedings. ^  Hollis  in  particular  rebuked  Harrison  vehemently 
when  he  alleged  the  authority  of  Parliament  for  what  he 
had  done. 

^  5  St.  Tr.  947—1364. 

^  Ih.  1078.  "You  do  very  well  know  that  this  that  you  did,  this 
"  horrid,  detestable  act  which  you  committed,  could  never  be  perfected  by 
"  you  till  you  had  broken  the  Parliament.  ...  Do  not  make  the  Parliament 


TRIALS  OF  THE  REGICIDES.  371 

The  facts  were  so  plain,  and  the  views  of  the  subject,  taken  Chap.  XI. 
by  the  Court  and  the  prisoners  respectively,  so  diametrically 
opposed  to  each  other,  that  the  legal  interest  of  the  trials  is 
small  The  prisoners  did  not  dispute  the  facts;  many  of 
them  avowed  and  justified  what  they  had  done,  particularly 
Harrison,  Scroop,  and  Carew.  ^Oook,  who  had  been  Solicitor- 
General  at  the  King's  trial,  defended  himself  elaborately  and 
ignominiously,  on  the  ground  that,  though  excepted  by  name 
from  the  Act  of  Oblivion,  he  had  not  within  its  true  mean- 
ing "  been  instrumental "  in  taking  away  the  life  of  Charles. 
The  words  were, "  sentencing,  signing,  or  being  instrumental," 
which,  he  argued,  must  mean  being  instrumental  in  the  same 
way  as  a  person  who  sentenced  or  signed.  "  Observe  it  is 
"  not  said  being  any  other  ways  instrumental."  "  I  have 
"  been  told,"  he  said,  "  that  those  that  did  only  speak  as 
"  counsel  for  their  fee,  who  were  not  the  contrivers  of  it,  the 
"  Parliament  did  not  intend  they  should  be  left  to  be  pro- 
"  ceeded  against."  .  ..."  I  must  leave  it  to  your"  (the  jury's) 
"  consciences,  whether  you  believe  that  I  had  a  hand  in  the 
"  King's  death,  when  I  did  write  but  only  that  which  others 
"  did  dictate  unto  me,  and  when  I  spoke  only  for  my  fee." 

By  this  mean  line  of  defence  he  had  no  chance  (as  he  ought 
to  have  known)  of  saving  his  life,  and  he  only  exposed  him- 
self to  the  crushing  and  unanswerable  retort  of  Sir  Heneage 
Finch  (his  successor  in  the  office  of  Solicitor-General),  ^  "  He 
"  that  brought  the  axe  from  the  Tower  was  not  more 
"  instrumental  than  he." 

The  least  intrinsically  important  of  the  trials  of  the  regi- 
cides, that  of  ^  Hulet,  has  some  legal  interest,  as  it  shows 
how  loose  the  rules  of  evidence^  then  were.  Hulet  was  ac- 
cused of  having  been  the  actual  executioner  of  Charles.  He 
was  tried,  I  think,  quite  fairly ;  but  was  convicted  on  such 
insufficient  evidence  that  the  judges  procured  a  reprieve  for 
him.  The  evidence  against  him  consisted  almost  entirely 
of  hearsay,  and  of  evidence  of  his  own  admissions.  On  the 
other  hand,  he  was  allowed  to  call  several  persons  who  said 

"to  be  the  author  of  your  black  crimes."    Annesley  said  something  to  the 
same  effect,  though  in  gentler  language,  to  Carew.— Pp.  1056,  1057. ' 

1  5  St.  Tr.  1077—1115  (see  especially  1097,  1098). 

3  76.  1100.  ^^'  '^'^^^ — ^■'■^^■ 

B   B   2 


372  PREVIOUS  CONSULTATION   OF   THE  JUDGES. 

Chap.  XI.  they  heard  Brandon,  the  hangman,  admit  that  he  had  done 
it.  ^  Such  evidence  would,  under  the  present  rules  of  evidence, 
be  excluded. 

In  the  case  of  the  trials  of  the  regicides,  as  in  several 
subsequent  cases,  the  judges  held  a  consultation,  at  which 
^  the  law  officers  of  the  Crown  were  present,  in  which  they 
came  to  a  number  of  resolutions  as  to  points  of  law  which 
might  arise  upon  the  trial.  One  of  these  has  some  general 
interest.  "  It  was  resolved  that  any  of  the  King's  counsel 
"  might  privately  manage  the  evidence  to  the  Grand  In- 
"  quest,  in  order  to  the  finding  of  the  bill  of  indictment, 
"  and  agreed  that  it  should  be  done  privately :  it  being 
"  usual  in  all  cases  that  the  prosecutors  upon  indictments  are 
"  admitted  to  manage  the  evidence  for  finding  the  bill,  and 
"  the  King's  counsel  are  the  only  prosecutors  in  the  King's 
"  case,  for  he  cannot  prosecute  in  person."  One  of  the  reso- 
lutions deserves  to  be  reprinted  on  account  of  its  extra- 
ordinary pedantry.  "  The  compassing  of  the  King's  death 
"  being  agreed  to  be  laid  in  the  indictment  to  be  29th 
"  January,  24  Car.  I.,  and  the  murder  on  the  30th  of  that 
"  same  January,  it  was  questioned  in  which  king's  reign  the 
"  30th  of  January  should  be  laid  to  be, — whether  in  the  reign 
"  of  King  Charles  I.  or  King  Charles  II. ;  and  the  question 
"  grew  because  there  is  no  fraction  of  the  day ;  and  all  the  acts 
"  which  tended  to  the  King's  murder  until  his  head  was 
"  actually  severed  from  his  body  were  in  the  time  of  his  own 
"  reign,  and  after  his  death  in  the  reign  of  Charles  II.  And 
"  although  it  was  agreed  by  all  except  Justice  Mallett  that 
"  one  and  the  same  day  might  in  several  respects  and  as  to 
"  several  acts  be  said  to  be  entirely  in  two  kings'  reigns  .... 
"  yet  because  Justice  Mallett  was  earnest  that  the  whole  day 
"  was  to  be  ascribed  to  King  Charles  II.,  therefore  it  was 
"  agreed  that  in  that  place  no  year  of  any  king  should  be 
"  named,  but  that  the  compassing  of  the  King's  death  should 
"  be  laid  on  the  29th  January,  24  Car.  I.,  and  the  other 
1  See  Stobart  v.  Dryden,  1  M.  &W.  615. 

^  i.e.  the  Attorney  and  Solicitor-General  and  their  King's  counsel,  "there 
"  being  then  no  King's  Serjeant  but  Serjeant  Glanvil,  serjeant  to  the  late 
"  King,  who  was  then  old  and  infirm."— Kelyng's  Reports,  quoted  in  5  St. 
Tr.  971—983.  I  think  that  after  the  Civil  War  the  King's  Serjeants,  in  England 
at  least,  were  entirely  superseded  by  the  Attorney-  and  Solicitor-General. 


CASES  OF  VANE  AND  MESSENGER.  S73 

"  acts  tending  to  the  murder  and  the  murder  itself  laid  to  be  Chap.  XI. 
"  '  tricesimo  mensis  ejiisdem  Januarii,'  without  naming  the  year 
"  of  any  king,  which  was  agreed  to  be  certain  enough." 

The  ^  trial  of  Sir  Henry  Vane  in  1662  appears  to  me  to 
have  been  a  cruel  and  revengeful  proceeding,  as  the  treason 
alleged  and  proved  against  him  ^  consisted  exclusively  in  his 
having  acted  in  the  ordinary  routine  of  government,  and. 
especially  as  a  member  of  the  Council  of  State  from  the  exe- 
cution of  Charles  downwards,  and  in  particular  in  his  having 
kept  Charles  II.  out  of  possession  of  his  kingdom.  These 
acts,  were  clearly  within  the  spirit  |_of  the  famous  act  of 
11  Hen.  7,  c.  1,  and  it  was  difficult  to  bring  them  within 
the  letter  of  the  25  Edw.  3.  It  is  remarkable  that  in 
this  case  the  Court  held  that  no  bill  of  exceptions  can  be 
tendered  in  criminal  cases — a  memorable  resolution,  the  effect 
of  which  has  been  to  restrict  anything  in  the  nature  of  an 
appeal  in  criminal  trials  to  those  few  and  rare  instances  in 
which  some  error  has  taken  place  in  the  procedure  which 
would  be  entered  on  the  record. 

Between  the  trials  of  the  regicides  and  the  trials  for  the 
Popish  Plot  (1660-1678)  several  trials  of  great  constitutional 
importance  took  place.  One  of  them  was  the  case  of 
Messenger  and  others,  who  were  tried  at  the  Old  Bailey 
for  high  treason  in  levying  war  against  the  King.  I  shall 
refer  to  it  in  connection  with  the  history  of  the  law  of 
treason.  Another  and  a  far  more  important  one  was  ^  the 
trial  of  Penn  and  Meade  for  a  tumultuous  assembly,  and  the 
proceedings  which  arose  out  of  it  against  Edward  Busheli. 
The  tumultuous  assembly  consisted  in  Penn's  preaching  a 
sermon  in  Gracechurch -street.  The  account  of  the  trial  was 
written  by  the  prisoners,  and  naturally  gives  them  the  best 
of  the  argument  on  every  occasion.  If  the  account  is  correct, 
they  both  showed  remarkable  presence  of  mind  and  vigour  of 
language ;  but  I  cannot  help  thinking  that  a  good  many  of 

1  6  St.  Tr.  119 — 202.  Vane's  real  oifence  was  no  doubt  his  conduct  at 
Strafford's  trial. 

2  lb.  148,  149. 

'  lb.  951.  This  trial  was  in  1670.  A  similar  case  in  which  the  jury  were 
fined  and  questioned  by  Kelyng,  C.J.,  is  reported  in^Kelyng,  p.  69,  first 
edition  of  1873. 


374  penn's  case. 

Chap.  XI.  their  retorts  were  recollections  of  what  they  ought  to  have  said. 
Whether  actually  made  or  not,  the  remarks  of  Penn  and 
Meade  throw  light  on  the  temper  of  their  time  and  class  on 
several  legal  subjects.  The  meeting  having  been  sworn  to, 
the  Recorder  asked  Meade  if  he  was  there,  to  which  ^Meade 
replied,  "It  is  a  maxim  in  your  own  law,  '  Nemo  tenetur 
"  '  accusare  seipsum,'  which,  if  it  be  not  true  Latin,  I  am  sure 
"  it  is  true  English,  that  no  man  is  bound  to  accuse  himself. 
"  And  why  dost  thou  offer  to  ensnare  me  with  such  a  ques- 
"  tion  ?  Doth  not  this  show  thy  malice  ?  Is  this  like  unto 
"  a  judge  that  ought  to  be  counsel  for  the  prisoner  at  the 
"  bar  ? "  Afterwards  Penn  asked  the  Recorder,  "  Let  me 
"  know  upon  what  law  you  ground  my  indictment.  Be- 
"  corder :  Upon  the  common  law.  Penn :  Where  is  that 
"common  law?  Eecorder :  You  must  not  think  that  I  am 
"  able  to  run  up  so  many  years  and  over  so  many  adjudged 
"  cases  which  we  call  common  law  to  answer  your  curiosity; 
"  Penn :  The  answer,  I  am  sure,  is  very  short  of  my  question  ; 
"  for  if  it  be  common  law  it  should  not  be  so  hard  to  pro- 
"  duce."  The  Court  and  the  prisoners  by  degrees  got  into  a 
dispute  so  hot  that  ^  the  Lord  Mayor  is  said  to  have  told 
Meade  he  "  deserved  to  have  his  tongue  cut  out,"  and  both 
he  and  Penn  were  removed  into  the  "  Bale  Dock,"  which  they 
describe  as  "  a  stinking  hole,"  out  of  court.  The  jury  would 
find  no  other  verdict  than  that  Meade  was  not  guilty,  and 
Penn  "  guilty  of  speaking  in  Gracechurch-street."  According 
to  Penn,  the  jury  were  shamefully  reviled  and  locked  up  for 
the  night,  "  till  seven  o'clock  next  morning  (being  the  4th 
"  instant),  vulgarly  called  Sunday."  Ultimately  they  re- 
turned a  verdict  of  not  guilty  as  to  both,  though  not  (if  the 
report  is  correct)  till  the  Recorder  had  expressed  his  admira- 
tion for  the  Spanish  Inquisition,  and  the  Mayor  had  said  he 
would  cut  Bushell's  (the  foreman's)  throat  as  soon  as  he  could. 
The  jury  were  fined  forty  marks  apiece  for  their  verdict,  and 
sentenced  to  be  imprisoned  till  they  paid  it.  Bushell  and 
his  fellow-jurors  obtained  a  writ  of  habeas  corpus.  The 
return  to  the  writ  was  that  they  were  imprisoned  for  con- 

1  6  St.  Tr.  987. 

-  The  trial  was  before  the  Mayor,  the  Recorder,  and  five  aldermen. 


TEIAL  OF  KEACH.  375 

tempt  of  court  in  acquitting  Penn  and  Meade  "  contra  legem  Chap.  XI. 

-"  hujus  regni  Anglise,  et  contra  plenum"  {sic)  "et  manifestum  " 

(sic)  "evidentiam,   et  contra  directionem  Curiae  in  materia 

"  legis."     But  the  judges  who  heard  the  argument  (ten  out 

of  twelve)  decided  that  the  discretion  of  the  jury  to  believe 

the  evidence  or  not  could  not  be  questioned,  and  the  jurymen 

were  accordingly  discharged  from  custody  without  paying  their 

fines.     This  is  the  last  instance  in  which  any  attempt  has 

ever  been  made  to  question  the  absolute  right  of  a  jury  to 

find  such  a  verdict  as  they  think  right.     I  am  not  certain, 

however,  that   the  case  of  a  jury  persisting  in  convicting  a 

prisoner  without  evidence,  or  on  evidence  clearly  insufficient 

in  law  to  sustain  the  conviction,  might  not,  if  it  ever  arose, 

give  rise  to  considerable  difficulty. 

A  trial  which  has  been  little  noticed,  but  which,  if  it  had 
been  treated  as  a  precedent,  would  have  been  of  momentous 
importance,  took  place  at  Aylesbury  assizes  in  1665,  before 
Lord  Chief  Justice  Hyde.  ^  One  Keach,  of  Winslow,  in  Buck- 
inghamshire, wrote  a  tract  containing  what  were  then  known 
as  Anabaptist  doctrines.  It  maintained  that  infants  ought 
not  to  be  baptized,  that  Christ  would  reign  on  earth  perma- 
nently for  a  thousand  years,  and  some  other  matters.  For 
this  he  was  indicted  for  "  maliciously  writing  and  publishing 
"  a  seditious  and  venomous  book,  wherein  are  contained  damn- 
"  able  positions  contrary  to  the  Book  of  Common  Prayer." 
Keach  was  convicted,  and  sentenced  to  a  fortnight's  imprison- 
ment and  to  stand  twice  in  the  pillory.  The  judge's  conduct 
•on  the  bench,  as  reported,  was  in  every  respect  disgraceful. 
The  indictment  is  not  given  in  the  report.  It  might  have  been 
drawn  under  the  Licensing  Act  (13  &  14  Chas.  2,  c;  33,  s.  2), 
which  provides  that  no  person  shall  presume  to  print  any 
heretical  book  or  pamphlet,  wherein  any  doctrine  or  opinion 
is  asserted  or  maintained  contrary  to  the  Christian  faith,  or 
the  doctrine  or  discipline  of  the  Church  of  England.  This 
would  make  such  a  publication  a  misdemeanour.  Whether 
the  indictment  was  at  common  law  or  under  the  statute  does 
not  appear.  If  the  book  was  treated  as  a  libel  indictable  at 
common  law,  and  not  as,  at  most,  an  ecclesiastical  offence,  the 
1  6  St.  Tr.  701. 


376  TRIAL  OF  THE  TUENEES, 

Chap.  XI.  case  was  an  unheard-of  extension  of  the  criminal  law.  I  am 
not  aware  that  this  bad  example  was  ever  followed. 

A  considerable  number  of  trials  for  ordinary  crimes  uncon- 
nected with  pohtics  are  reported  in  the  State  Trials  during 
this  period.  I  may  particularly  refer  to  ^  the  trial  of  Colonel 
Turner,  his  sons  and  his  wife,  for  burglary  and  robbery,  in 
1664,  2  that  of  Hawkins,  for  theft,  in  1669;  the  trials  for 
murder  of  ^  Lord  Morley,  in  1666,  and  *  Lord  Pembroke,  in 
1678 ,  and  the  trial  of  ^  the  witches  in  Suffolk,  in  1665. 

The  trial  of  the  Turners  is  extremely  curious  as  an  ^  illus- 
tration of  the  manners  of  the  time ;  but  in  a  legal  point  of  view 
its  chief  interest  depends  on  its  forming  a  very  perfect  illus- 
tration of  the  way  in  which,  at  that  time,  a  complicated  trial 
for  a  common  offence  was  conducted.  It  is  indeed  the  earliest 
instance,  so  far  as  I  know,  of  a  full  report  of  such  a  trial. 

No  counsel  seem  to  have  been  employed ;  at  least  none  are 
mentioned.  The  first  witness  called  was  the  magistrate  who 
had  investigated  the  case  and  committed  the  prisoner  (Sir 
Thomas  Aleyn,  an  alderman).  Being  asked  in  general  terms 
to  "  tell  his  knowledge  to  the  jury,"  he  made  a  speech  de- 
scribing all  his  proceedings  and  inquiries,  and  stating  the 
information  he  had  received  from  various  people  of  whom  he 
made  inquiries ;  far  the  greater  part  of  what  he  said  would  by 
the  present  rules  of  evidence  be  inadmissible.  The  gist  of 
it  was,  that  suspecting  Turner  he  examined  him  the  day 
after  the  robbery,  and  having  received  further  information 
next  day  (aU  of  which  he  stated  at  full  length),  examined 
him  further,  searched  his  house,  and,  partly  by  promises  of 
favour,  got  him  to  restore  a  great  deal  of  the  stolen  property 
(£1,000  in  cash,  and  jewels  worth  £2,000  and  upwards).  The 
prosecutor  and  various  other  witnesses  to  the  facts  were 
then  called,  and  in  particular  Sir  Thomas  Chamberlain, 
another  alderman,  who  had  been  concerned  in  inquiring  into 
the  case.     When  all  the  evidence  had  been  given,  Lord  Chief 

\  t^^-  ^'■-  ^^^-        '  -^*-  922.        '  a.  770.        0  lb.  1310.         ^Ib   647 

Turner  was  an  old  Cavalier  officer.     His  speech  at  the  scaffold  lasted  two 

hours.     It  IS  an  extraordinary  performance,  full  of  an  infinity  of  things  which 

he  said  to  spin  out  the  time,  in  hopes  of  the  arrival  of  a  pardon.     He  said 

tor  instance,  "  I  was  a  constant  Churchman  ;  it  is  well  known  to  mv  parish- 

loners  I  never  durst  see  a  man  in  the  church  with  his  hat  on.     It  tiwbled 
"  me  very  much."— 6  St.  Tr.  626. 


TEIAL   OF  HAWKINS.  ZTl 

Justice  Hyde  shortly  and  very  clearly  ^  summed  up  the  whole  Chap.  XI. 
matter  to  Turner,  saying,  "  I  would  propose  this  to  you,  to  '~~ 
"  make  your  defence  touching  your  charge  ;"  and  he  ended  by 
saying,  "  Laying  all  this  together,  unless  you  answer  it,  all  the 
"  world  must  conclude  that  you  are  one  that  did  this  robbery." 
Turner  ^  made  a  long  speech  in  answer  to  this,  and  called 
witnesses.  He  was  questioned  at  intervals,  and  ^  on  one  occa- 
sion at  considerable  length,  on  his  statement,  in  such  a  way 
as  to  set  in  a  clear  light  its  glaring  improbability,  but  not,  as 
it  seems  to  me,  harshly  or  unfairly.  The  questioning,  in 
short,  was  no  longer  what  it  had  been  in  the  days  of  Elizabeth 
and  James  I., — the  very  essence  of  the  trial.  It  was  used  as 
the  natural  way  of  getting  at  the  truth,  and  was  by  no  means 
in  all  cases  a  disadvantage  to  the  prisoner.  It  served  rather  to 
call  his  attention  to  the  matter  against  him,  and  so  to  bring 
out  his  defence,  if  he  had  one. 

The  defence  was  followed  by  the  summing-up  of  the  judges. 
Lord  Chief  Justice  Hyde  said,  amongst  other  things,  to  the 
jury,  *  "You  take  notes  of  what  hath  been  delivered  "  (which 
seems  as  if  he  did  not).  "  I  have  not  your  memories :  you  are 
"  young."  If  fully  reported,  the  summing-up  was  not  very 
remarkable  in  any  way. 

The  trials  of  Hawkins  for  theft,  and  of  the  Suffolk  witches, 
are  the  only  cases  in  the  State  Trials  tried  by  Hale.  I  can- 
not say  that  either  of  them  justifies  his  extraordinary  repu- 
tation. Hawkins  was  a  Buckinghamshire  clergyman,  accused 
by  an  Anabaptist  parishioner  of  stealing  two  rings,  an  apron, 
and  £1  19s.  in  money.  The  report  is  by  the  prisoner  him- 
self. If  correct,  it  shows  that  the  charge  against  him  was 
the  result  of  the  grossest  perjury  and  conspiracy  founded 
upon  base  personal  malice.  In  the  case  itself  there  is 
nothing  very  remarkable,   except  that  the  prosecutor  (who 

1  6  St.  Tr.  593—594.  This  summary  gives  the  history  of  the  case,  which 
is  very  intricate,  in  a  very  few  words. 

2  His  wife  interrupted  him  in  a  very  grotesque  way  (603—604).  He 
apologized  for  her,  observing  for  one  thing  that  he  had  had  "  twenty-seven 
"  children  by  her — fifteen  sons  and  twelve  daughters." 

3  6  St.  Tr.  605—610,  and  especially  610.  _ 

*  lb.  612.  The  practice  of  taking  notes,  now  universal  amongst  the  judges, 
was  of  slow  growth.  See  Colledge's  case,  8  St.  Tr.  712  ;  Cornish's  case,  11  lb. 
437  ;  the  Annesley  case,  17  lb.  1419,  note.  A  passage  already  referred  to  m 
Throckmorton's  case  is  to  the  same  effect. 


37^  TRIAL  OF  THE  SUFFOLK  WITCHES. 

Chap.  XI.  seems  to  have  acted  as  counsel,  there  being  no  counsel  for 
the  Crown)  was  allowed  to  give  evidence  to  show  that 
Hawkins  had  committed  two  other  thefts  wholly  uncon- 
nected with  the  one  for  which  he  was  being  tried,  which, 
^  said  Hale,  "  if  true,  would  render  the  prisoner  now  at  the  bar 
"  obnoxious  to  any  jury."  Hale,  after  expressing  his  opinion 
that  the  case  was  perfectly  clear,  and  the  prosecutor  "  a  very 
"  villain, — nay,  I  think  thou  art  a  devil,"  and  after  the  jury 
had  declared  they  were  fully  satisfied  of  Hawkins's  innocence, 
appears  to  have  given  an  elaborate  charge  to  the  jury. 

2  The  trial  of  the  Suffolk  witches,  in  1665,  is  curious,  not 
only  as  one  of  the  last  specimens  in  England  of  an  odious 
superstition,  but  because  it  seems  that  rules  of  evidence 
founded,  one  would  have  thought,  on  the  most  obvious  common 
sense  were  altogether  unknown  to,  or  at  least  unrecognised 
by,  the  most  famous  judge  of  his  time. 

Two  women,  Eose  Cullender  and  Amy  Duny,  were  indicted 
for  bewitching  several  children,  who  were  considered  too  young 
to  be  called  as  witnesses.  The  evidence  came  in  substance  to 
this — that  each  of  the  women  had  a  quarrel  with  some  of  the 
parents  of  the  children  said  to  be  bewitched  ;  that  afterwards 
the  children  had  fits ;  that  in  their  fits  they  threw  up  crooked 
pias,  and  declared  that  the  two  prisoners  were  tormenting 
them,  and  that  they  saw  their  apparitions.  Some  other  in- 
cidents were  alleged,  almost  too  puerile  to  relate,  e.g.  "a 
"  little  thing  like  a  bee  flew  upon  the  face  "  of  one  of  the 
children,  whereupon  she  "  vomited  up  a  twopenny  nail  with 
"  a  broad  head,"  and  said,  "  The  bee  brought  this  nail  and 
"  forced  it  into  her  mouth."  This  was  proved,  not  by  the 
child,  but  by  her  aunt,  who  seems  not  to  have  been  asked 
the  most  obvious  questions,  such  as  whether  when  she  saw 
the  bee  it  was  carrying  the  nail,  and,  if  so,  how,  and  as  to 
the  child's  opportunities  of  getting  the  nail  and  putting  it 
in  her  mouth.  A  quantity  of  nonsense  of  this  sort  having 
beon  proved,  it  is  satisfactory  to  find  that  ^ "  Mr.  Serjeant 
"Keeling"  (probably  as  amicus  mrice)  "seemed  much  un- 
"  satisfied  with  it,  and  thought  it  not  sufficient  to  convict 
"  the  prisoners ;  for,  admitting  that  the  children  were,  in 
1  6  St.  Tr.  950.  2  jj,   ggy^  3  jrj   gg^ 


TRIAL  OF  THE  SUFFOLK  WITCHES.  379 

"  truth,  bewitched,  yet "  (said  he)  "  it  can  never  be  applied  Chap.  XI. 
^'  to  the  prisoners  upon  the  imagination  only  of  the  parties 
"  afflicted  ;  for,  if  that  could  be  allowed,  no  person  what- 
"  soever  can  be  in  safety.''  This  view  of  the  matter  was 
■encountered  by  the  famous  Dr.  Brown,  the  author  of  Religio 
Medioi,  ^ "  who,  upon  view  of  the  three  persons  in  court,  was 
"  desired  to  give  his  opinion  what  he  did  conceive  of  them  ; 
"  and  he  was  clearly  of  opinion  that  the  persons  were  be- 
"  witched,  and  said  that  in  Denmark  there  had  been  lately 
"  a  great  discovery  of  witches,  who  used  the  very  same  way 
"  of  afflicting  persons  by  conveying  pins  into  them,  and 
■"  crooked  as  these  pins  were,  with  needles  and  nails.  And 
■"  his  opinion  was  that  the  devil  in  such  cases  did  work  upon 
"'  the  bodies  of  men  and  women  upon  a  natural  foundation 
"  (that  is)  to  stir  up  and  excite  such  humours  superabound- 
"  ing  in  their  bodies  to  a  great  extent,  whereby  he  did  in 
"  an  extraordinary  manner  afflict  them  with  such  distem- 
"  pers  as  their  bodies  were  most  subject  to,  as  particularly 
"  appeared  in  these  children ;  for  he  conceived  that  these 
"'  swooning  fits  were  natural,  and  nothing  else  but  that  they 
"  call  the  mother,  but  only  heightened  to  a  great  excess  by  the 
■"  subtlety  of  the  devil  cooperating  with  the  malice  of  those 
"  we  term  witches,  at  whose  instance  he  doth  these  villanies." 
Fortunately,  perhaps,  for  Dr.  Brown,  the  art  of  cross- 
examining  experts  was  in  those  days  uninvented.  Some 
slight  experiments  were  tried  with  the  children,  who  pro- 
fessed to  be  insensible,  but  to  know  when  one  of  the  witches 
touched-  them.  They  performed  this  feat  successfully  in  court ; 
but,  some  persons  being  sceptical,  the  experiment  was  per- 
formed again  in  a  different  place,  in  the  presence  of  several 
persons  of  distinction,  chosen  by  the  judge,  of  whom  Serjeant 
Keeling  was  one.  On  this  occasion  one  of  the  children  was 
blindfolded,  and  the  witch  brought  to  her;  but  another 
person  was  made  to  touch  her,  "  which  produced  the  same 
"  effect  as  the  touch  of  the  witch  did  in  the  court ;  whereupon 
"  the  gentlemen  returned,  openly  protesting  that  they  did 
"  believe  the  whole  transaction  of  this  business  was  a  mere 
"  imposture."      Hale,   however,  although  he  might,  and   I 

1  6  St.  Tr.  697. 


380  TEIAL  OF  THE  SUFFOLK  WITCHES. 

Chap.  XI.  think  ought,  to  have  told  the  jury  that  there  was  nothing 
■  which  could  possibly  be  called  evidence  to  connect  the  pri- 
soners with  the  supposed  offence,  treated  the  matter  not 
only  with  gravity,  which  indeed  was  his  duty,  but  with  that 
misplaced  and  misunderstood  impartiality  which  is  one  of  the 
temptations  of  a  judge  better  provided  with  solemnity,  re- 
spectability, and  learning  than  with  mother- wit.  His  obvious 
duty  was,  first,  to  see  that  the  case  was  one  in  which  two 
poor  old  women's  lives  were  put  in  jeopardy  by  the  stupid 
superstition  of  ignorant  people  ;  next,  to  save  them  from  their 
danger  by  insisting  on  the  point  put  forward  by  Keeling,  and 
on  the  proof  of  fraud  given  by  the  experiment  tried  in  court. 
He  did  neither  of  these  things.  He  told  the  jury  that  ^ "  he 
"  would  not  repeat  the  evidence  unto  them,  lest  by  so  doing^ 
"  he  should  wrong  the  evidence  on  the  one  side  or  the  other. 
"  Only  this  he  acquainted  them,  that  they  had  two  things  to 
"  inquire  after.  First,  whether  or  no  these  children  be  be- 
"  witched  ?  Secondly,  whether  the  prisoners  at  the  bar  were 
"  guilty  of  it  ?  That  there  were  such  creatures  as  witches  he 
"  had  no  doubt  at  all ;  for,  first,  the  Scriptures  affirmed  so 
"  much;  secondly,  the  wisdom  of  all  nations  had  provided 
"  laws  against  such  persons,  which  is  an  argument  of  their 
"  confidence  of  such  a  crime.  And  such  hath  been  the  judg- 
"  ment  of  this  kingdom,  as  appears  by  the  Act  of  Parliament 
"  which  hath  provided  punishments  proportionable  to  the 
"  quality  of  the  offence  ;  and  desired  them  strictly  to  observe 
"  their  evidence,  and  desired  the  great  God  of  heaven  to 
"  direct  their  hearts  in  this  weighty  thing  they  had  in  hand  ^ 
"  for  to  condemn  the  innocent,  and  to  let  the  guilty  go  free, 
"  were  both  an  abomination  to  the  Lord."  The  poor  old 
women  were  both  convicted  and  hanged. 

^  A  trial  for  witchcraft  took  place  seventeen  years  afterwards 
(in  1682),  before  Judge  Eaymond,  in  which  three  poor  old 
creatures  confessed  their  guilt,  and  were  hanged.  ^Eoger 
North  has  some  remarks  on  this,  which  do  honour  to  his 
good  sense  and  feeling.  "  These  were  two  miserable  old 
"  creatures  that  one  may  say,  as  to  sense  or  understanding, 
"  were  scarce  alive,  but  were  overwhelmed  with  melancholy 

1  est.  Tr.  700,  701.        ■■'  8  lb.  1017.        ^  lives  of  the  Nortfts,  i.  266,  267. 


ROGER  NORTH  ON  WITCH  TRIALS.  38  I 

"  and  waking  dreams,  and  so  stupid  as  no  one  could  suppose  Chap.  XI. 

"  they   knew   either    the    construction    or    consequence    of 

"  what  they  said.     All  the  rest  of  the  evidence  was  trifling. 

"  I,  sitting  in  court  the  next  day,  took  up  the  file  of  the 

"  informations  taken  by  the  justices,  which  were  laid  out 

"  upon  the  table,  and  against  one  of  the  old  women  read 

"  thus :  '  This  informant  saith  he  saw  a  cat  leap  in  at  her 

"  '  (the  old  woman's)  window  when  it  was  twilight.    And  this 

"  '  informant  further  saith  that  he  verily  believeth  the  said 

"  '  cat  to  be  the  devil,  and  further  saith  not.'     The  judge 

"  made  no  such  distinctions  as  how  possible  it  was  for  old 

"  women,  in  a  sort  of  melancholy  madness,  by  often  thinking 

"  in  pain  and  want  of  spirits,  to  contract  an  opinion  of  them- 

"  selves  that  was  false ; "  .  .  .  "  but  he  left  the  point  upon  the 

"  evidence  fairly  (as  they  call  it)  to  the  jury,  and  they  con- 

"  victed  them  both."     He  proceeds  to  give  an  account  of  the 

dexterity  and   quiet  good    sense  with  which   Lord  Keeper 

Guildford  tried  such  a  case,  and  procured  the  acquittal  of  a 

poor  old  man.     One  remark  in  it  must  not  be  omitted.     "  It 

"  is  seldom  that  a  poor  old  witch  is  brought  to  trial  on  that 

"  account,  but  there  is  at  the  heels  of  her  a  popular  rage 

"  that  does  little  less  than  demand  her  to  be  put  to  death ; 

"  and  if  a  judge  is  so  clear  and  open  as  to  declare  against 

"  that  impious,  vulgar  opinion  that  the  devil  himself  has 

"  power  to  torment  and  kill  innocent  children,  or  that  he  is 

"  pleased  to  divert  himself  with  the  good  people's  cheese, 

"  butter,  pigs,  and  geese,  and  the  like  errors  of  the  ignorant 

"  and  foolish  rabble,  the  countrymen  (the  triers)  say  their 

"  judge  hath  no  religion,  for  he  doth  not  believe  witches ; 

"  and  s(^  to  show  they  have  some,  hang  the  poor  wretches. 

"  All  which  tendency  to  mistake   requires  a  very  prudent, 

"  moderate  carriage  in  a  judge,  whereby  to  convince  rather 

"  by  detection  of  the  fraud  than  by  denying  authoritatively, 

"  such  power  to  be  given  to  old  women." 

The  impression  made  upon  my  mind  by  these  trials  is, 
that  when  neither  political  nor  religious  passions  or  preju- 
dices were  excited,  when  the  matters  at  issue  were  very 
plain  and  simple,  when  the  facts  were  all  within  the 
prisoner's   knowledge,  and  when  he  was  not  kept  in  close 


3^2  EEMARKS   ON   TRIALS   IN   THE    I/TH   CENTURY. 

Chap.  XI.   confinement  before  his  trial,  and  was  able  to  consult  counsel, 
and  to  procure  witnesses  if  he  had  any,  trials  were  simple, 
fair,  and    substantially  just,  though  little   or  no  protection 
against  perjury  was  afforded ;  but  when  any  of  these  conditions' 
was  not  fulfilled,  the  prisoner  was  at  a  great  disadvantage. 
There  were  practically  no  rules  of  evidence.     The  witnesses 
were  allowed  to  make  spaeches,  in  which  they  introduced 
every  sort  of  irrelevant  matter  which  might  prejudice  the 
jury  against  the  prisoner.    The  prisoner  had  no  counsel.    He 
was,  indeed,  allowed  to  cross-examine,  but  cross-examination 
was  hardly  understood  at  all,  and  every  one  who  has  any  ex- 
perience of  the  matter  knows  that  to  cross-examine  on  bare 
speculation,  and  without  previous  knowledge  of  what  the 
witness  is  going  to  say,  is  likely  to  do  even  a  good  case  more 
harm  than  good.     The  result  was  that  if  the  Court  were  pre- 
judiced, if  the  prisoner  was  kept  in  close  confinement  up  to- 
his  trial,  and  if  perjured  witnesses  were  called  against  him, 
he  was  practically  defenceless.     The  character  of  the  proce- 
dure is  well  illustrated  by  the  argument  constantly  used  by 
the  ijudges  to  justify  the  rule  which  deprived  prisoners  of 
counsel  on  matters  of  fact.      It  was,  that  in  order  to  convict 
the  prisoner,  the  proof  must  be  so  plain  that  no  counsel  could 
contend  against  it.     In  the  very  commonest  and  simplest  cases 
there  is  some  truth  in  this,  if  it  is  assumed  that  the  witnesses 
speak  the  truth ;  but  if  the  smallest  complication  is  intro- 
duced, if  the  facts  are  at  all  numerous,  if  the  witnesses  either 
lie  or  conceal  the  truth,  an  ordinary  man,  deeply  ignorant 
of  law,  and  intensely  interested  in  the  result  of  the  trial, 
and  excited  by  it,  is  in  practice  utterly  helpless  if  he  has^ 
no  one  to  advise  him.      A  study  of  the  State  Trials  leads 
the    reader    to  wonder   that    any  judge    should    ever   have 
thought  it  worth  while   to  be   openly  cruel   or  unjust  to 
prisoners.     His  position  enabled  him,  as  a  rule,  to  secure 
whatever   verdict  he   liked,  without  taking  a  single   irre- 
gular step,  or  speaking  a  single  harsh  word.     The  popular 
notion  about  the  safeguards  provided   by  trial  by  jury,  if 
only  "the  good  old  laws  of  England"  were  observed,  were, 
I   think,  as    fallacious  as  the  popular  conception  of  those 
^  See  e.g.  Coleman's  case,  7  St.  Tr.  14. 


TRIALS   FOR  THE  POPISH   PLOT.  383 

imaginary  good  old  laws.  No  system  of  procedure  ever  de-  Chap.  XI. 
vised  will  protect  a  man  against  a  corrupt  judge  and  false 
witnesses,  any  more  than  the  best  system  of  police  will 
protect  him  against  assassination.  The  safeguards  which  the 
experience  of  centuries  has  provided  in  our  own  days  are,  I 
think,  sufficient  to  afford  considerable  protection  to  a  man 
who  has  sense,  spirit,  and,  above  all,  plenty  of  money ;  but 
I  do  not  think  it  possible  to  prevent  a  good  deal  of  injustice 
where  these  conditions  fail.  In  the  seventeenth  century, 
rich  and  powerful  men  were  as  ill  off  as  the  most  ignorant 
labourer  or  workman  in  our  own  day ;  indeed,  they  were 
much  worse  off,  for  the  reasons  already  suggested. 

The  importance  of  these  remarks  will  be  illustrated  by  the 
trials  during  the  next  period  to  which  I  have  to  refer. 

IV.— 1678— 1688. 

The  ten  years  immediately  preceding  the  Eevolution  are, 
perhaps,  the  most  important  in  the  judicial  history  of 
England.  In  them  occurred  the  trials  for  the  Popish  Plot, 
the  Meal  Tub  Plot,  and  the  Rye  House  Plot,  the  trials  con- 
nected with  the  Duke  of  Monmouth's  rebellion,  and  the  trials 
which  led  to  the  Revolution  itself,  of  which  the  trial  of  the 
seven  bishops  was  by  far  the  most  important.  The  proceed- 
ings of  the  criminal  courts  have  never  before  or  since  been 
of  so  much  general  importance,  and  for  the  first  time  we  have 
reports  of  the  cases  which  appear  to  have  been  thoroughly 
well  taken  by  ^  good  shorthand  writers.  The  result  is  that 
it  is  still  possible  to  follow  with  minute  accuracy  every  word 
of  the  proceedings. 

Nearly  every  topic  connected  with  the  trials  for  the  Popish 
Plot  has  been  so  fully  discussed  that  it  will  be  unnecessary 
to  say  more  than  a  very  few  words  by  way  of  introduction 
to  the  subject. 

The  story  of  Gates,  brought  out  by  degrees  as  he  gained 

experience  of  the  public  passion  and  credulity,  was  this : — 

^  The  first  instance  I  know  of  in  which  a  shorthand  writer's  evidence 
appears  to  have  been  given  is  in  the  trial  of  Sir  Patience  Ward  for  perjnry  in 
1683,  when  Blaney,  a  shorthand  writer,  was  called  to  prove  the  words  sworn. 
He  was  severely  cross-examined  by  Jeffreys  and  others. — 9  St.  Tr.  317 — 320. 
He  was  called  in  many  subsequent  trials,  e.g.  in  Gates's  trial  for  perjury. 


384  DATES. 

Chap.  XI.  The  Catholics  had  for  many  years  had  a  plan  for  intro- 
ducing  Popery  into  this  country,  and  destroying  Protestanti-sm 
by  force.  The  principal  parties  to  this  scheme  were  the 
Jesuits  in  Spain  and  France.  They  held  a  correspondence 
with  Jesuits  and  others  in  England,  Coleman  being  one 
of  the  chief  correspondents.  '  They  also  held  "  consults " 
at  various  places  in  order  to  concert  measures  for  this 
purpose.  One  of  these  was  held  on  the  24th  April,  1678, 
at  the  "  White  Horse  "  tavern.  It  was  there  determined  that 
Charles  II.  should  be  murdered  by  Pickering  and  Groves,  or 
failing  that,  and  failing  also  "four  ruffians  procured  by  Dr. 
"  Fogarty,"  he  was  to  be  poisoned  by  Sir  George  Wakeman,  the 
Queen's  physician.  A  great  army  was  also  to  be  raised  by 
some  means,  and  introduced  into  England  to  massacre  the 
Protestants ;  and  a  number  of  commissions,  signed  by  "  the 
"  General  of  the  Society  of  Jesus,  Joannes  Paulus  d'Oliva,  by 
"  virtue  of  a  brief  from  the  Pope,  by  whom  he  was  enabled," 
were  brought  over  to  England,  and  were  distributed  by  Mr. 
Langhorn,  a  barrister  in  the  Temple,  to  a  number  of  distin- 
guished persons,  who,  upon  the  success  of  the  scheme,  were 
to  receive  all  the  high  offices  of  State.  This  scheme  was 
known  to  a  number  of  influential  Catholics,  who  held 
"  consults"  on  it  in  different  parts  of  the  country. 

The  following  dates  are  material. 

^On  the  29th  September,  1678,  Gates  made  his  first  dis- 
coveries to  the  Council.  ^  The  same  evening  a  warrant  was 
issued  by  the  Council  to  seize  Coleman's  papers;  and  they 
were  accordingly  seized  by  Bradley,  their  officer. 

3  On  the  12th  October,  1678,  Sir  Edmundbury  Godfrey 
was  murdered. 

*0n  the  28th  November,  1678,  Coleman  was  tried  for  high 
treason,  and  convicted. 

On  the  17th  December,  1678,  Ireland,  Pickering,  and  Grove 
were  tried  for  treason. 

On  the  5th  February,  1679,  Green,  Berry,  and  Hill  were 
tried  for  the  murder  of  Sir  E.  Godfrey. 

1  Extract  from  Burnet,  printed  in  6  St.  Tr.  1408. 
^  Evidence  of  Bradley  in  Coleman's  case,  7  76.  33. 
3  Trial  of  Green,  Berry,  and  Hill,  for  his  murder,  lb.  189,  &c. 


TITUS  GATES,  385 

On  the  13th  June,  1679,  Whitehead  and  four  other  Jesuits  CnAr.  xi. 
were  tried  for  treason.  

On  the  following  day  Langhorn  was  tried  for  treason. 

On  the  18th  July,  1679,  Sir  G.  Wakeman  was  tried  for 
treason. 

On  June  23,  1680,  Lord  Castlemaine  was  tried  for  treason. 

Finally,  on  the  30th  November  and  the  following  days,  1680, 
Lord  Stafford  was  tried  for  treason. 

Other  trials  of  minor  interest  were  connected  with  the 
subject,  but  these  were  the  most  important.  They  ranged, 
as  will  be  seen,  over  a  little  more  than  two  years. 

It  would  be  superfluous  to  discuss  minutely  the  value  of 
Oates's  statements.  No  one  accustomed  to  weighing  evidence 
can  doubt  that  he  and  the  subordinate  witnesses,  Bedloe, 
Dugdale,  Turberville,  and  Dangerfield,  were  quite  as  bad  and 
quite  as  false  as  they  are  usually  supposed  to  have  been.  Their 
evidence  has  every  mark  of  perjury  about  it.  They  never 
would  tie  themselves  down  to  anything,  if  they  could  possibly 
avoid  it.  As  soon  as  they  were  challenged  with  a  lie  by 
being  told  that  witnesses  were  coming  to  contradict  them, 
they  always  shuffled  and  drew  back,  and  began  to  forget. 
Great  part  of  what  they  said  was  in  itself  monstrous  and 
incredible,  and  as  they  succeeded  in  one  murder  after  another 
they  assumed  an  air  of  self-complacent  arrogance  which  rouses 
indignation  even  after  the  lapse  of  two  centuries.  The 
cowardice  of  Scroggs,  who  allowed  such  a  wretch  as  Oates  to 
assume  an  air  of  authority  in  the  Court  of  King's  Bench, 
without  reminding  him  that,  if  his  story  was  true,  he  was 
himself  a  traitor,  liar,  and  hypocrite,  who  ought  not  to  dare  to 
look  honest  men  in  the  face,  is  almost  as  disgusting  as  the 
impudence  which  brought  that  cowardice  to  light.  In  short, 
the  common  judgment  on  the  whole  subject  appears  to  me 
right ;  but  something  remains  to  be  said  on  the  light  which 
these  transactions  throw  on  the  administration  of  criminal 
justice  both  then  and  now. 

That  the  trials  for  the  Popish  Plot  resulted  in  a  dreadful 
series  of  failures  of  justice  may  be  taken  as  admitted.  The 
important  questions  are,  Who  or  what  was  to  blame  for  them  ? 
How  far  is  it  possible  to  guard  against  the  recurrence  of  such 

VOL.  I.  CO 


386  COLEMAN'S    CASE. 

Chap.  XI.  failures  of  justice  ?  and  To  what  extent  are  we  secured  against 
them  now  ?  In  order  to  answer  these  questions  I  will  enter 
a  little  more  fully  into  the  evidence  and  procedure  upon  these 
trials.  The  general  state  of  affairs  is  described  in  a  few 
words,  as  follows,  by  ^Mr.  Green: — "The  treaty  of  Nime- 
"  guen  not  only  left  France  the  arbiter  of  Europe,  but  it  left 
"  Charles  the  master  of  a  force  of  20,000  men  levied  for  the 
"  war  he  refused  to  declare,  and  with  nearly  a  million  of 
"  French  money  in  his  pocket.  His  course  had  roused  into 
"  fresh  life  the  old  suspicions  of  his  perfidy,  and  of  a  secret 
"  plot  with  Lewis  for  the  ruin  of  English  freedom  and 
"  English  religion.  That  there  was  such  a  plot  we  know ; 
"  and  the  hopes  of  the  Catholic  party  mounted  as  fast  as  the 
"  panic  of  the  Protestants." 

Such  was  the  state  of  feeling  when  Gates  told  his  story. 
Immediately  after  it  had  been  told,  the  papers  of  Coleman 
(the  secretary  of  the  Duchess  of  York)  were  discovered. 
^They  consisted  of  drafts,  in  Coleman's  own  writing,  of 
letters  sent  in  1675  to  Pfere  la  Chaise  (Louis  XIV.'s  con- 
fessor), which  Coleman  had  the  incredible  folly  to  preserve  or 
overlook  when  he  destroyed  other  papers,  thus  giving  every 
one  the  impression  that  these  were  the  least  important  parts 
of  his  correspondence.  The  letter  contained  the  following 
passages : — "  We  have  here  a  mighty  work  upon  our  hands, 
"  no  less  than  the  conversion  of  these  kingdoms,  and  by  that, 
"  perhaps,  the  utter  subduing  of  a  pestilent  heresy  which  has 
"  domineered  over  a  great  part  of  this  northern  world  a  long 
"  time.  There  were  never  such  hopes  of  success  since  the 
"  death  of  our  Queen  Mary  as  now  in  our  days.  When  God 
"  has  given  us  a  prince  who  has  become  (may  I  say  a  miracle  ? ) 
"  zealous  of  being  the  author  and  instrument  of  so  glorious 

"  a  work." "  That   which  we    rely  upon   most, 

"  next  to  God  Almighty's  providence  and  the  favour  of 
"  my  master  tbe  Duke,  is  the  mighty  mind  of  his  most 
"  Christian  Majesty."  A  few  days  after  this,  Sir  Edmund- 
bury  Godfrey  was  murdered,  probably  (as  Lord  Macaulay 

^  Short  History  of  the  English  People,  635. 

^  As  to  their  seizure,  see  evidence  of  Bradley,  Boatman,  and  Lloyd,  7  St.  Tr. 
33 — 35.  The  letters  are'  printed  in  full,  35 — 58.  The  passage  quoted  is  at 
p.  56.  '' 


Coleman's  defence.  387 


thinks)  by  Papists.  It  was  in  this  state  of  things  that  the  Chap.  Xl. 
^  trial  of  Coleman  for  high  treason  took  place.  His  con- 
viction  was,  beyond  all  question;  caused  mainly  by  the  letter 
quoted,  and  by  other  letters  of  a  similar  character  ;  but  partly 
also  by  the  panic  produced  by  Godfrey's  murder,  which  was 
about  a  fortnight  after  Coleman's  arrest,  and  about  six  weeks 
before  his  trial.  The  two  witnesses,  who  by  this  time 
were  universally  admitted  to  be  necessary  in  cases  of  treason 
(the  views  which  prevailed  in  Ealeigh's  case  having  become 
inconsistent  with  the  whole  course  of  the  procedure), 
were  found  in  ^  Gates  and  Bedloe.  Gates  said  (amongst 
many  other  things)  that  Coleman  was,  in  his  hearing, 
informed  of  the  determination  of  the  Jesuits  to  kill  the 
King,  and  that  he  (Gates)  ^  discussed  with  Coleman  the  pro- 
ject of  bribing  Wakeman  to  poison  Charles  ;  that  Coleman 
took  copies  of  certain  instructions  given  by  Ashby  (a  Jesuit) 
as  to  murdering  the  King  and  raising  an  insurrection,  in  order 
to  forward  copies  all  over  the  country ;  and  he  was  allowed  to 
say  unreproved,  *  "  I  could  give  other  evidence,  but  will  not, 
"  because  of  other  things  which  are  not  fit  to  be  known 
"  yet."  ^  Cross-examination  in  those  days  was  very  imperfectly 
understood ;  but  Gates  was  obliged  to  admit  that  when  he 
first  saw  Coleman  before  the  Council  he  did  not  know  him, 
and  it  seemed  extremely  doubtful  whether  he  ever  really 
charged  him  before  the  Council  with  the  matters  to  which  he 
swore  at  the  trial.  ^  Bedloe  swore  to  a  variety  of  treasonable 
speeches  of  Coleman's,  and  to  having  himself  carried  letters, 
which  he  said  were  treasonable,  from  Coleman  to  Pere  la 
Chaise.  Coleman's  defence  was  feeble  in  the  extreme,  as 
was  the  case  with  most  of  the  prisoners.  He  said  that  Gates 
and  Bedloe  were  great  liars.  He  also  said  that,  as  Gates 
would  not  fix  himself  to  particular  days,  he  would  not  con- 
tradict him  by  proving  an  alibi.  He  apologised  for ,  his 
letters.  He  began  in  a  feeble  way  to  make  some  remarks  on 
the  improbabilities  of  the  charge ;  on  which  Scroggs  rudely 
interrupted   him  : — '' "  What   a  kind   and  way  of  talking  is 

J  7  St.  Tt.  1—78. 

^  Oates's  evidence,  p.  18  ;  Bedloe's,  p.  30.     They  were  frequently  recalled. 

3  7  St.  Tr.  21.         *  Ih.  21.         ^  lb.  25.  "  lb.  31—33.  ^  lb.  CO. 

C  C  .2 


388  TRIAL   OF   IRELAND,  PICKERING,  AND  GROVE. 

cmap.  XL  "  this !  Tou  have  such  a  swimming  way  of  melting  words 
"  that  it  is  a  troublesome  thing  for  a  man  to  collect  matter 
"  out  of  thee,"  &c.  Finally  he  was  convicted  and  executed. 
The  ^  trial  of  Ireland,  Pickering,  and  Grove  took  place  on 
the  17th  December.  They  were  the  persons  who  were  said 
to  have  undertaken  to  murder  Charles  II.  The  evidence 
against  them  was  that  of  Gates  and  Bedloe,  whoUy  uncorro- 
borated by  any  other  witnesses  whatever.  They  repeated 
what  they  had  said  before,  fixing  the  prisoners  with  the 
scheme  of  murdering  Charles.  Bedloe  ^  swore  that  there 
was  a  meeting,  at  which  Ireland  was  present,  "  at  the  end  of 
"  August  or  beginning  of  September,"  to  consult  as  to  the 
assassination  ;  but,  guessing  that  he  was  to  be  contradicted, 
he  refused  to  pledge  himself  as  to  the  time,  beyond  saying 
that  it  was  "  in  August."  Ireland  had  probably  heard  that 
something  to  this  effect  had  been  stated  at  Coleman's  trial, 
and  had  done  what  he  could  to  provide  witnesses  to  show 
that  throucrh  the  whole  of  August  he  was  in  Staffordshire. 
'He  did  call  one  or  two  such  witnesses,  but  he  said  that  his 
imprisonment  had  been  so  short  that  he  could  send  for  no 
one;  and  on  calling  his  first  witness  he  observed,  "It  is  a 
"  hundred  to  one  if  he  be  here,  fori  have  not  been  permitted 
"  so,  much  as  to  send  a  scrap  of  paper."  All  the  prisoners 
were  convicted  and  executed. 

The  next  of  the  trials  was  *that  of  Green,  Berry,  and 
Hill,  for  the  murder  of  Godfrey.  This  was  a  very  curious 
trial.  The  principal  witness  was  Prance,  who  described  in 
minute  detail  how  the  prisoners  enticed  Godfrey  into  a 
yard  adjoining  Somerset  House  (then  the  palace  of  Queen 
Catharine) ;  how  he  was  murdered  there,  and  how  his  body 
was  concealed,  first  in  a  neighbour's  house,  and  afterwards  in 
Somerset  House  itself,  until  it  was  carried  into  the  fields 
where  it  was  afterwards  found.  ^According  to  his  own  ac- 
count, Prance  was  consulted  before  the  murder,  was  present 

'  1  St.  Tr.  79—143.  2  lb.  109. 

'  lb.  121,  &c.  On  Oates's  second  trial  for  perjury  in  1685,  Ireland's  absence 
from  London  through  August  and  part  of  September  was  proved  by  a  great 
number  of  witnesses,  who  traced  all  his  movements  from  day  to  day,  giving, 
by  the  way,  a  singularly  vivid  and  authentic  account  of  the  life  of  country 
gentlemen  in  the  Long  Vacation  in  1678.  *  7  St.  Tr.  159. 

'  lb.  169.     As  to  his  recantation,  see  pp.  176,  177,  209. 


TRIAL  OP  THE  FIVE  JESUITS.  3^9 

at  the  completion  of  the  murder,  though  not  at  the  whole  of  Chap.  XL 
it,  and  helped  to  conceal  the  hody.  Prance,  hefore  giving  his 
evidence,  retracted  and  reasserted  it  more  than  once.  In 
some  circumstances  of  his  story  he  was  confirmed  by  inde- 
pendent witnesses.  In  one  very  important  one,  as  to  the 
temporary  disposal  of  the  body,  he  was  contradicted.  One 
of  the  persons  accused  gave  somewhat  confused  evidence  of 
an  alibi.  ^  Bedloe  swore  that  he  had  been  a  party  to  a  con- 
spiracy of  Jesuits  to  murder  Godfrey,  and  that  after  the 
murder  he  saw  the  body  dead  in  Somerset  House.  Upon 
two  rather  important  collateral  points  Prance  was  corrobo- 
rated. He  said  that  Green,  one  of  the  prisoners,  inquired  for 
Godfrey  at  Godfrey's  house,  and  this  was  corroborated  by 
2  Godfrey's  servant ;  and  he  also  gave  ^  an  account  of  a  meeting 
he  had  at  Bow  with  certain  priests  and  two  of  the  prisoners, 
which  was  *  to  some  extent  corroboraited  by  witnesses  and  by 
the  admissions  of  the  prisoners  when  questioned.  They  were 
all  convicted  and  executed. 

The  trial  of  the  five  Jesuits  (Whitehead,  the  Provincial  of 
the  Jesuits  in  England,  Harcourt,  Fenwick,  Gavan,  and 
Turner)  on  the  13th  June,  1679,  and  that  of  Langhorn,  the 
barrister,  on  the  following  day,  may  be  noticed  together,  as 
much  the  same  facts  were  proved  by  the  same  witnesses. 
The  witnesses  in  each  case  were  Gates,  Dugdale,  and  Bedloe. 
The  substance  of  their  evidence  was  that  the  Jesuits  had 
been  guilty  of  the  treasonable  conspiracy  sworn  to  in  the 
earlier  cases,  and  that  Langhorn  was  also  a  party  to  it,  acting 
as  a  sort  of  registrar  of  their  resolutions,  and  in  particular 
receiving  and  distributing  a  number  of  commissions  issued 
by  the  General  of  the  Jesuits  to  a  variety  of  persons  of 
distinction  in  England. 

In  each  case  the  witnesses  were  contradicted  in  several 
particulars.  The  principal  contradiction  was  that,  whereas 
Gates  swore  that  he  was  at  a  "  consult "  of  the  Jesuits  at 
the  "  White  Horse  "  tavern  on  the  24th  April,  1678,  he  was  in 
truth  on  that  day,  and  for  a  long  time  before  and  afterwards, 
at  St.  Omers.     *  As  many  as  sixteen  witnesses  were  called  on 

1  7  St   Tr.  179.  '  Elizabeth  Curtis,  ib.  186. 

3  Jb.  I7i,  17o.  *  2b.  187—191.  '  i*.  359—379. 


390  TRIAL   OF  SIR  GEORGE  WAKEMAN. 

Chap.  XI.  this  point ;  and  there  were  some  other  contradictions  quite  aff 
■  circumstantial,  and  nearly  as  important.  The  witnesses  were 
faintly  contradicted  by  ^  some  witnesses  who  spoke  of  having 
seen  Gates  in  London  about  that  time,  but  much  of  their 
evidence  was  hearsay  and  uncertain.  In  each  case  the 
prisoners  were  convicted  and  executed..  ^  Gates  was  after- 
wards (in  1685)  convicted  of  perjury  on  much  the  same  evi- 
dence. It  is  curious  to  contrast  the  manner  in  which  Jeffreys 
spoke  of  his  evidence  on  different  occasions.  As  Eecorder' 
of  London,  he  sentenced  the  five  Jesuits  in  1679.  He  then 
said : — ^  "Your  several  crimes  have  been  so  fully  proved  against 
"  you,  that  truly  I  think  no  person  that  stands  by  can  be  in 
"  any  doubt  of  the  guilt :  nor  is  there  the  least  room  for  the 
"  most  scrupulous  man  to  doubt  of  the  credibility  of  the 
"  witnesses  that  have  been  examined  against  you;  and  sure  I 
"  am  you  have  been  fully  heard,  and  stand  fairly  convicted 
"  of  those  crimes  you  have  been  indicted  for." 

In  1685,  as  Lord  Chief  Justice,  he  ended  his  summiug-up 
in  Gates's  trial  for  perjury  thus  : — *  "  And  sure  I  am  if  you 
"  think  these  witnesses  swear  true,  as  I  cannot  see  any  colour 
"  of  objection,  there  does  not  remain  the  least  doubt  but  that 
"  Gates  is  the  blackest  and  most  perjured  villain  that  ever 
"  appeared  upon  the  face  of  the  earth." 

^  The  trial  of  Sir  George  Wakeman,  the  Queen's  physician, 
and  three  other  persons,  Marshal,  Rumney,  and  Corker,  took 
place  on  the  18th  July,  1679.  They  were  charged  with 
treason  in  taking  part  in  the  plot.  Wakeman  was  to  have 
poisoned  the  King  ;  Marshal  and  Rumney  were  to  have  paid 
£6,000  towards  the  purpose  of  the  plot;  and  Corker  was 
to  have  assisted.  Gn  this  occasion  ^  Gates  swore  that  he  saw 
a  letter  from  Wakeman  to  Ashby,  a  Jesuit,  most  of  which 
was  about  "  how  he  should  order  himself  before  he  went  to 
"  and  at  the  Bath ; "  but  besides  this,  "  in  his  letter  Sir  George 
"  Wakeman  did  write  that  the  Queen  would  assist  him  to 
"  poison  the  King."  Gates  said  that  a  day  or  two  afterwards 
he  saw  Wakeman  write  another  letter,  which  he  perceived 
was  in  the  same  hand  as  the  treasonable  letter.     He  also 

1  7  St.  Tr.  396,  &c.  =  TO  Jb.  1079.  s  7  lb.  488. 

■*  10  lb.  1226.  '  7  lb.  591.  ^  jj.  619—621. 


SIR  GEOEGE  WAKEMAN— LORD   CASTLEMAINE.  39  ^ 

swore  that  being  at  Somerset  House  on  treasonable  business  Chap.  xi. 
with  several  Jesuits,  he  stayed  in  an  outer  room  whilst  they 
went  to  see  the  Queen  in  an  inner  room,  and  that  he  heard 
"  a  woman's  voice  say  that  she  would  assist  them  in  the  pro- 
"  pagation  of  the  Catholic  religion  with  her  estate,  and  that 
"  she  would  not  endure  these  violations  of  her  bed  any  longer. 
' '  and  that  she  would  assist  Sir  George  Wakeman  in  the  poisoning 
"  of  the  King."  Fortunately  for  himself.  Sir  George  Wakeman 
had  not  written:  the  latter  for  Ashby  himself,  but  had  dictated 
it  to  his  servant,  '  Hunt.  Ashby  took  it  (apparently  under 
the  name  of  Thimbleby)  to  Chapman,  an  apothecary  at  Bath, 
who  read  it  and  tore  off  and  kept  the  prescription.  Hunt 
proved  that  the  prescription  was  in  his  handwriting;  and 
^Chapman  proved  that  the  body  of  the  letter  was  in  the 
same  hand  as  the  prescription,  that  it  said  nothing  about 
murdering  the  King,  and  that  so  far  from  prescribing  a  milk 
diet,  as  Gates  said  it  did,  it  prescribed  a  different  kind  of 
treatment ;  a  milk  diet  he  added  would  have  been  inconsis- 
tent with  Bath  water.  ^  It  was  also  proved  that  when  Gates  was 
before  the  Privy  Council  he  had  said  upon  hearsay  that 
Wakeman  had  had  a  bribe  to  poison  the  King.  Wakeman 
had  denied  it,  and  Gates  had  been  asked  whether  he  knew 
any  more  against  Sir  G.  Wakeman ;  to  which  he  replied, 
"  God  forbid,  that  I  should  say  anything  against  Sir  G. 
"  Wakeman,  for  I  know  nothing  more  against  him."  There 
was  other  evidence  in  the  case  which  I  need  not  notice.  The 
prisoners  were  all  acquitted. 

*  Lord  Castlemaine  (who,  being  an  Irish  peer,  was  tried  in 
England  as  a  commoner  in  the  King's  Bench)  was  tried  June 
23,  1680.  Gates  was  the  principal  witness  against  him,  and 
swore  he  had  seen  letters  in  the  prisoner's  handwriting  about 
"  the  design,"  which,  said  Gates,  meant  the  treasonable  design 
he  had  deposed  to  on  other  occasions.  Gates  was  to  some 
extent  corroborated  by  Dangeriield,  a  person  if  possible  more 
infamous  than  himself.  Dangerfield's  competence  as  a  wit- 
ness was  objected  to  on  the  ground  of  his  infamy,  he  having 
been  convicted  of  felony  and  burnt  in  the  hand ;  but  as  he 
bad  been  pardoned,  he  was  admitted  as  a  witness.  The  records, 
1  7  St.  Tr.  648.  ^  Jh.  645—647.  '  lb.  651.  *  Ih.  1067. 


392  LORD  STAFFORD. 

Chap.  XI.  however,  were  admitted  against  Ms  credit,  and  ^  it  appeared 
that  he  had  been  hurnt  in  the  hand  for  felony,  pilloried  as  a 
cheat,  and  convicted  on  three  indictments  for  coinage  offences. 
A  record  was  also  produced  which  showed  that  Oates  had 
accused  a  man  at  Dover  of  an  odious  offence,  and  that  the 
prisoner  had  been  acquitted.  He  was  contradicted  on  another 
point  besides.  This  so  much  shook  the  credit  of  the  witnesses 
that  Lord  Castlemaine  ^  was  acquitted. 

The  last  of  the  trials  for  the  Popish  Plot  which  I  shall 
mention  was  that  of  ^Lord  Stafford  before  the  House  of  Lords. 
It  was  much  the  longest  (it  lasted  five  days)  and  also  much 
the  fullest  of  all.  The  whole  story  of  the  plot  was  gone  into 
at  immense  length.  Stafford's  participation  in  it  rested 
principally  on  the  evidence  of  one  Turberville.  He  and  the 
other  witnesses  were  contradicted.  The  witnesses  who  con- 
tradicted them  were  contradicted,  and  the  contradictions  even 
went  one  step  further.  Thus  Dugdale  swore  against  Lord 
Stafford.  Many  witnesses  were  called  by  Lord  Stafford  to 
prove  that  Dugdale  was  unworthy  of  credit.  Witnesses  were 
called  by  the  prosecution  to  set  up  his  character,  and  especially 
Southall,  a  coroner  and  magistrate  who  received  his  evidence 
originally.  Lastly,  Lord  Ferrers  was  called  by  Lord  Stafford 
to  testify  that  Southall  "  is  counted  a  very  pernicious  man 
"  against  the  Government."  The  prisoner  was  ultimately  con- 
victed by  fifty-five  votes  against  thirty-one.  He  was  after- 
wards executed. 

The  result  is  that  in  two  years,  and  in  connection  with  one 
transaction,  six  memorable  failures  of  justice,  involving  the 
sacrifice  of  no  less  than  fourteen  innocent  lives,  occurred  in 
trials  held  before  the  highest  courts  of  judicature  under  a 
form  of  procedure  closely  resembling  that  which  is  still  in 
force  amongst  us.  It  is  a  matter  of  great  importance  to  con- 
sider how  far  this  is  to  be  ascribed  to  individuals,  how  far  it 
was  due  to  defects  inherent  in  the  system  under  which  it 
occurred,  and  how  far  the  defects  in  the  system  have  been 
remedied. 

J  7  St.  Tr.  1102. 

^  He  was  proceeded  against  for  treason  in  1689,  in  going  as  ambassador  to 
Eome  in  James  II. 's  reign,  12  St.  Tr.  897. 
»  7  lb.  1294. 


REMARKS   ON   TRIALS  FOR  GODFREY'S  MURDER.  393 

The  first  point  to  be  referred  to  is  the  influence  of  popular  Chap.  XI. 
passion  over  the  administration  of  justice.  The  effect  of  this 
may  be  traced  more  or  less  in  all  the  trials  for  the  Popish 
Plot,  though  it  is  fair  to  say  in  different  degrees.  That  there 
actually  was  a  Popish  plot,  in  the  sense  of  a  conspiracy,  of 
which  the  King  was  the  principal  member,  to  bring  in  the 
Roman  Catholic  religion,  is  undoubtedly  true ;  indeed  it  is 
probable  that,  if  the  real  relations  between  Louis  XIV.  and 
Charles  II.  had  been  known  then  as  they  are  known  now,  the 
Revolution  would  have  been  antedated  by  ten  years.  It  is,  I 
think,  highly  probable  that  a  certain  number  of  desperadoes  of 
infamous  character  did  connect  themselves  with  the  Catholic 
party,  and  were  in  the  habit  of  indulging  in  wild  schemes  and 
wild  talk  about  the  reestablishment  of  their  religion.  Worse 
men  than  Gates,  Bedloe,  Dugdale,  Dangerfield,  and  Turber- 
viUe  never  lived  in  the  world ;  but  all  of  them  were  more 
or  less  conversant  with  the  Catholics,  and  Gates  did  pass  a 
considerable  time  amongst  the-  Jesuits  both  in  Spain  and  in 
France.  Lord  Macaulay's  reasons  for  believing  that  Godfrey 
was  murdered  by  men  of  this  stamp  appear  to  me  unanswer- 
able. It  ought,  moreover,  to  be  remembered  that  in  April, 
1679,  ^a  desperate  attempt  to  murder  Arnold,  a  Monmouth- 
shire justice  who  had  made  himself  conspicuous  by  his  anti- 
Popish  zeal,  was  actually  made  in  London  by  one  Giles,  and 
all  but  succeeded.  The  impression  left  on  my  mind  by  the 
trial  of  Green,  Berry,  and  Hill  certainly  is  that  Prance, 
though  an  infamous  liar  (he  afterwards  pleaded  guilty  to 
perjury  on  this  trial),  was  a  party  to  the  murder,  though  he 
put  it  upon  innocent  persons.  I  should  think  it  not  at  all 
improbable  that  Gates  himself  was  the  murderer  or  the 
contriver  of  the  murder.  This  would  account  for  Prance's 
retractations,  and  for  the  extremely  minute,  coherent  account 
he  gave  of  the  transaction.  His  knowledge  of  the  circum- 
stances, as  to  which  he  was  corroborated,  showed  that  he 
was  connected  with  and  knew  the  movements  of  priests  and 
others  whom,  in  the  then  state  of  public  feeling,  he  could 
accuse  with  plausibility.  In  these  circumstances  it  is  not 
surprising  that  a  panic .  should  have  been  produced  which 
1  See  the  trial  of  Giles,  7  St.  Tr.  1129. 


394  REMARKS   ON    TRIAL   OF   LORD   STAFFORD. 

Chap.  XI.  predisposed  juries  to  believe  any  revelations  whicli  might  be 
made  by  pretended  accomplices. 

These  considerations  fully  explain,  and  to  a  considerable 
extent  palliate,  the  conduct  of  the  jurors  who  convicted  Cole- 
man and  the  persons  accused  of  the  murder  of  Godfrey ;  and 
perhaps  the  same  may  be  said  of  the  jurors  who  tried  Grove, 
Ireland,  and  Pickering,  though  this  is  more  doubtful,  as  their 
guilt  depended  entirely  on  the  evidence  of  accomplices  as  to 
words  spoken.  For  the  jurors  who  convicted  the  five  Jesuits 
and  Langhorn,  in  the  face  of  the  witnesses  who  contradicted 
Gates  on  the  principal  point  in  his  evidence,  it  is  difficult  to 
admit  any  excuse  whatever;  for  to  say  that  their  verdicts 
represented  the  furious  bigotry  which  led  the  juries  of  that 
time  to  reject  the  evidence  of  all  Eoman  Catholics  is  to 
condemn  them.  The  acquittals  of  Wakeman  and  Lord 
Castlemaine  were  creditable  as  far  as  they  went;  but,  in 
my  opinion,  the  worst  verdict  given  by  any  jury  was  a 
venial  error  in  comparison  with  the  injustice  of  the  fifty- 
one  peers  who  convicted  Lord  Stafford.  The  first  panic  had 
long  subsided  at  the  time  of  the  trial.  After  his  evidence 
on  Wakeman's  and  Lord  Castlemaine's  trials,  Gates  ought 
never  to  have  been  believed  again.  The  only  witnesses  who 
pretended  to  fix  Lord  Stafford  with  treason  were,  according 
to  their  own  evidence  (which  in  many  points  was  contradicted), 
accomplices  swearing  to  words  spoken.  To  give  a  single  illus- 
tration, ^  Dugdale  swore  that  on  the  20th  or  21st  September, 
1678,  Lord  Stafford  offered  him  £500  to  kill  the  King.  Lord 
Stafford  called  a  witness  who  brought  Dugdale  to  him  on  the 
occasion  in  question,  explained  every  circumstance  connected 
with  the  interview,  and  declared  that  he  was  present  at  the 
whole  of  it,  and  that  nothing  of  the  sort  was  said ;  and  this 
witness  was  materially  corroborated  as  to  part  of  his  evidence 
by  another.  The  general  accuracy  of  this  evidence  was  not 
disputed,  but  it  was  suggested  as  possible  that  Lord  Stafford 
and  Dugdale  might  have  been  alone  together  for  a  moment, 
in  which  the  offer  might  have  been  made.  It  is  humiliating 
to  think  that  English  noblemen  should  have  convicted  one  of 
their  own  number  of  high  treason  because  a  man  who,  by  his 
^  7  St.  Tr.  1343—1346,  and  -see  1386—1891  and  1500. 


BEHAVIOUR   OF   SCROGGS.  395 

own  account,  was  a  traitor  and  a  murderer  in  intention,  charged  Chap.  XI. 
him  with  having  taken  advantage  of  their  being  alone  to- 
gether  for  a  moment  to  say,  "  I  will  give  you  £500  to  kill 
the  King." 

Passing  from  the  jurors  to  the  judges  and  counsel,  it 
must  be  admitted,  in  the  first  place,  that  Scroggs,  who 
presided  at  all  the  trials,  was  guilty  of  some  mis- 
behaviour which  compares  unfavourably  even  with  the 
brutality  of  Jeffreys.  His  summings-up  in  the  cases  of 
^  Ireland,  Pickering,  and  Groves,  and  in  the  trial  of  the 
five  Jesuits,  can  be  described  only  as  infamous.  The  first 
is  full  of  attacks  on  the  Roman  Catholics,  disgusting  in  the 
mouth  of  a  judge  on  a  capital  trial,  and  the  second  is  such 
a  speech  for  the  prosecution  as  no  counsel  in  the  present  day 
would  make.  Besides  this,  he  continually  checked  and  sneered 
at  the  prisoners  when  on  their  trial.  I  must,  however,  say  in 
justice  to  Scroggs  that,  disgusting  as  his  manner  was,  I  am  not 
prepared  to  say  that  he  strained  the  law  as  it  then  stood.  What 
strikes  a  modern  lawyer  as  the  most  questionable  thing  done 
by  him  occurred  on  the  trial  of  Ireland,  Pickering,  and  Grove. 
Two  leading  Jesuits,  Whitehead  and  Fenwick,  were  indicted 
with  them  and  were  given  in  charge  to  the  jury  and  tried.  ^  At 
the  end  of  the  case  it  appeared  tbait  there  was  only  one  wit- 
ness against  them.  U'pon  this  Scroggs  discharged  the  jury  of 
them  and  recommitted  them  ;  and  they  were  afterwards  tried 
and  executed  for  the  same  treason.  Whitehead  urged  that  he 
had  been  given  in  charge  once,  and  ought  not  to  be  tried 
again;  but  the  whole  Court  held,  without  hesitation,  that 
there  was  nothing  in  the  objection.  The  whole  law  upon  this 
subject  was  elaborately  considered  a  few  years  ago,  ^  in  R.  v. 

1  7  St.  Tr.  131—134  and  411 — 415.  Here  is  a  specimen  of  Scroggs's 
attacks  on  the  Roman  Catholics  : — "This  is  a  religion  that  quite  unhinges  all 
"  piety,  all  morality,  and  all  conversation,  and  to  be  abominated  by  all  man- 
"  kind.     They  eat  their  God,  they  kill  their  King,  and  saint  the  murderer." 

2.  7  8t.  Tr.  119,  and  see  the  subsequent  proceedings  at  p.  315. 

'  L.  R.  1  Q.  B.  289.  In  2  Hale,  P.  G.  p.  295,  the  following  passage 
occurs  ;  after  noticing  some  ancient  authorities  against  the  discharge  of  the 
jury,  he  says  :  "  But  yet  the  contrary  course  hath  for  a  long  time  prevailed  at 
"Newgate.  Nothing  is  more  ordinary  than  after  the  jury  is  sworn  and 
"  charged  with  a  prisoner  and  the  evidence  given,  yet  if  it  appears  to  the 
"Court  that  some  of  the  evidence  is  kept  back,  or  taken  off,  or  that  there 
"may  be  a  fuller  discovery,  and  the  offence  notorious,  as  murder  or  burglary, 


39^  DECENCY   OF  TRIALS  OF  GILES  AND  LORD    STAFFORD. 

Chap.  XI.   Winsor,  when  it  appeared,  from  many  authorities,  that  the 
practice  had  fluctuated. 

It  should  also  be  observed  that,  whatever  may  have  been 
his  motives,  Scroggs  did  turn  against  Gates  and  Bedloe, 
and  did  powerfully  help  in  their  final  exposure  and  dis- 
comfiture by  the  acquittal  of  Sir  George  Wakeman  and  Lord 
Castlemaine,  to  each  of  which  results  he  contributed  vigorously. 
This  is  usually  attributed  to  subserviency  to  Charles  II.,  but 
it  was  conduct  good  in  itself,  and  required  courage.  ^  He  was, 
indeed,  proceeded  against  both  before  the  Privy  Council  and 
in  Parliament  on  this  subject,  and  ran  a  considerable  risk  of 
impeachment. 

Some  points  connected  with  the  conduct  of  the  judges  in 
these  cases  deserve  more'  notice  than,  so  far  as  I  am  aware, 
they  have  received.  Two  of  the  trials  connected  with  the 
plot  were  conducted  with  conspicuous  fairness  and  decency. 
One  of  them  was  the  trial  of  Giles  for  the  attempt  to  murder 
Arnold,  the  Monmouthshire  magistrate — an  act  extremely 
like  the  murder  of  Sir  E.  Godfrey,  except  in  the  point  that  it 
did  not  succeed.  In  this  trial  the  presiding  judge  was 
Jeffreys,  who  sat  as  Recorder  of  London.  The  other  was  the 
trial  of  Lord  Stafford.  I  do  not  think  that  even  in  our  own 
times  a  prisoner  could  be  treated  with  greater  tenderness, 
consideration,  and  courtesy.  The  presiding  judge  was  ^  Lord 
Nottingham,  who  acted  as  Lord  High  Steward  on  the  occasion ; 
yet  this  most  courteous  and  humane  proceeding  ended  in  what 
I  think  must  be  regarded  as  by  far  the  most  inexcusable  of  all 
the  verdicts  given  in  connection  with  the  Popish  Plot. 

I  do  not  think  much  censure  attaches  to  the  counsel  for 
the  Crown  for  their  conduct  in  these  trials.  They  were  un- 
doubtedly zealous,  and  they  did  not  abstain  from  the  popular 
topics  as  to  Eoman  Catholics,  Jesuits,  the  doctrine  of  equivo- 
cation, and  the  like,  but  I  know  of  no  behaviour  on  the  part 

' '  and  that  the  evidence,  though  not  sufficient  to  convict  the  prisoner,  yet 
' '  gives  the  Court  a  great  and  strong  suspicion  of  his  guilt,  the  Court  may 
"discharge  the  jury  of  the  prisoner,  and  remit  him  to  the  gaol  for  further 
"  evidence  ;  and  accordingly  it  has  been  practised  in  most  circuits  of  England, 
"  for  otherwise  many  notorious  murders  and  burglaries  may  pass  unpunished, 
"by  the  acquittal  of  a  person  probably  guilty,  where  the  full  evidence  is  not 
"  searched  out  or  given." 

1  8  St.  Tr.  163. 

'  He  was  Lord  Chancellor  at  the  time,  and  his  title  was  Lord  Finch. 


LIGHT  IN   WHICH   PRISONERS   WERE   REGARDED.  397 

of  any  one  of  them  which  can  be  fairly  compared  to  that  of  Chap.  XI. 
Coke  on  the  trial  of  Ealeigh. 

One   great  leading   cause   of    the   result   of   these  trials 
is,  I  think,  to  be  found  in  the  defects   of  the   system  of 
criminal  procedure  which  was  then  in  full  vigour,  and  which, 
even  to  this  day,  is  in  force,  theoretically  though  not  practi- 
cally, to  a  greater  extent  than  is  generally  supposed  to  be  the 
case.     The  prisoner  was  looked  upon  from  first  to  last  in  a 
totally  different  light  from  that  in  which  we  regard  an  accused 
person.     In  these  days,  when  a  man  is  to  be  tried,  the  jury 
are  told  that  it  is  their  first  duty  to  regard  him  as  being 
innocent  till  he  is  proved  to  be  guilty,  and  that  the  proof  of 
his  guilt  must  be  given  step  by  step  by  the  prosecution,  till 
no  reasonable  doubt  can  remain   upon  the   subject.      This 
sentiment  is  both  modern  and,  in  my  opinion,  out  of  harmony 
with  the  original  law  of  the  country.     No  one  can  be  brought 
to   trial   till   a  grand  jury  has   upon  oath  pronounced  him 
guUty,  as  the  form  of  every  indictment  shows.     "  The  jurors 
"  for  our  Lady  the  Queen,  upon  their  oaths,  present  that  A, 
"  wilfully,  feloniously,  and  of  his  malice  aforethought,  did  kill 
"and  murder  B."     Why  should  a  man  be  presumed  to  be 
innocent  when  at  least  twelve  men  have  positively  sworn 
to  his  guilt  ?     In  former  days,  as  I  have  already  shown,  the 
presentment   of  a  grand  jury  went  a  long  way  towards  a 
conviction,  and  a  man  who  came  before  a  petty  jury  under 
that  prejudice  was  by  no  means  in  the  same  position  as  a 
man  against  whose  innocence  nothing  at  all  was  known.     In 
nearly  every  one  of  the  trials  for  the  Popish  Plot,  and,  indeed, 
in  all  the  trials  of  that  time,  the  sentiment  continually  dis- 
plays itself,  that  the  prisoner  is  half,  or  more  than  half, 
proved  to  be  an  enemy  to  the  King,  and  that,  in  the  struggle 
between  the  King  and  the  suspected  man,  all  advantages  are 
to  be  secured  to  the  King,  whose  safety  is  far  more  important 
to  the  public  than  the  life  of  such  a  questionable  person 
as  the  prisoner.      A  criminal  trial  in  those    days  was  not 
unlike  a  race  between  the  King  and  the  prisoner,  in  which 
the  King  had  a  long  start   and  the  prisoner  was  heavily 
weighted. 

The  following  were  the  essential  points  in  the  proceedings 


398  prisoner's  position. 

Chap.  XI.  which  establish  this  view.  First,  the  prisoner  as  soon  as  he 
was  committed  for  trial  might  be,  and  generally  was,  kept  in 
close  confinement  till  the  day  of  his  trial.  He  had  no  means 
of  knowing  what  evidence  had  been  given  against  him.  He 
was  not  allowed  as  a  matter  of  right,  but  only  as  an  occa- 
sional, exceptional  favour,  to  have  either  counsel  or  solicitors 
to  advise  him  as  to  his  defence,  or  to  see  his  witnesses  and 
put  their  evidence  in  order.  When  he  came  into  court  he 
was  set  to  iight  for  his  life  with  absolutely  no  knowledge  of 
the  evidence  to  be  produced  against  him.  Any  one  who  has 
ever  acted  as  an  advocate  knows  what,  it  is  to  be  called  upon 
to  defend  a  man  at  a  moment's  notice.  Under  such  circum- 
stances, a  modern  barrister  has  usually  at  least  a  copy  of  the 
depositions.  To  defend  a  prisoner  efficiently  is  a  task  which 
makes  considerable  demands  on  the  readiness,  presence  of 
mind,  and  facility  of  comprehension  of  a  man  trained  to  pos- 
sess and  use  those  faculties.  That  an  uneducated  man,  whose 
life  is  at  stake,  and  who  has  no  warning  of  what  is  to  be  said 
against  him,  should  do  himself  justice  on  such  an  occasion  is 
a  moral  impossibility.  But  this  was  what  was  required  of 
every  person  tried  for  high  treason  in  the  seventeenth  cen- 
tury. None  of  the  prisoners  tried  for  the  Popish  Plot,  except 
Lord  Stafford  and  Sir  George  Wakeman,  defended  themselves 
even  moderately  well.  Langhorn,  who  was  a  barrister,  lost 
his  head  so  completely  that  he  did  not  cross-examine  Gates 
as  to  the  arrangement  of  his  chambers,  which  was  said  to  be 
such  that  Gates  could  not  possibly  have  heard  and  seen  what 
he  said  he  heard  and  saw  there — a  circumstance  on  which 
Scroggs  afterwards  relied  as  a  justification  of  his  conduct  in 
disbelieving  Gates.  When  an  experienced  lawyer  defended 
himself  so  feebly,  it  is  not  surprising  that  inexperienced 
persons  should  have  been  utterly  helpless. 

That  the  prisoner's  witnesses  were  not  permitted  to  be 
sworn  was  even  in  those  days  considered  as  a  hardship,  and 
the  jury  were  told  in  all  or  most  of  the  trials  to  guard  against 
attaching  too  much  weight  to  it.  The  advantage  which 
that  state  of  the  law  gave  to  fraudulent  defences,  which  might 
be  set  up  without  any  risk  of  a  prosecution  for  perjury,  seems 
to  have  been  stupidly  overlooked.     It  was  also  a  common 


PRINCIPLES   OF  EVIDENCE  NOT  UNDERSTOOD.  399 

topic  of  complaint  that  prisoners  had  no  copy  of  the  indict-  Chap,  XI. 
ment  against  them,  or  of  the  pannel  of  jurors  ;  but  I  think 
the  importance  of  these  matters  was  overrated.     A  copy  of 
the  indictment  would  only  have  enabled  prisoners  to  make 
little  quibbles,  which  the  judges  would  have  overruled,  and 
would  have  been  right  in  overruling;    and  a   copy  of  the 
pannel  is  of  no  real  use  to  a  prisoner.      If  the  sheriff  wishes 
to  pack  a  jury,  he  must  be  very  clumsy  if  he  does  not  provide 
a  sufficient  number  of  partial  jurors,  free  from  any  legal  objec- 
tion, to  allow  for  thirty-five  peremptory  challenges.     If,  on 
the  other  hand,  he  is  fair,  one  juryman  is  practically  as  good 
as  another.     The  real  grievance  was  keeping  the  prisoner  in 
the  dark  as  to  the  evidence  against  him.     Theoretically  this 
grievance   still   exists,  though  practically  it  has  long  since 
been  removed.     As  the  law  still  stands,  a  bill  might  be  sent 
before  a  grand  jury  without  notice  to  the  person  accused. 
The  bill  being  fotmd,  the  person  accused  might  be  arrested 
merely  on  proof  of  his  identity ;    he  would   not  be   taken 
before  a  magistrate,  and  until  he  was  put  in  the  dock  to  take 
his  trial  he  would  have  no  legal  right  to  know  who  were  the 
witnesseis  against  him,  or  what  they  had  said,  or  even  to  have 
a  copy  of  the  indictment. 

These  defects  in  the  system  of  trial  in  the  seventeenth 
century,  I  own,  strike  me  as  being  almost  less  important 
than  the  utter  absence  which  the  trials  show  of  any  concep- 
tion of  the  true  nature  of  judicial  evidence  on  the  part  of  the 
judges,  the  counsel,  and  the  prisoners.  The  subject  is  even 
now  imperfectly  understood,  but  at  that  time  the  study  of 
the  subject  had  not  begun.  I  do  not  think  any  writer  of 
the  seventeenth  century  has  anything  of  importance  to  say 
about  it.  Hale  tells  a  trifling  anecdote  or  two  about  mis- 
taken convictions,  the  result  of  which  is  that  in  trials  for 
murder  the  body  of  the  person  murdered  ought  to  be  proved 
to  have  been  seen  after  death;  but  he  obviously  knew 
nothing  at  all  of  the  theory  of  the  subject.  It  is  stated 
"  in  various  places  in  the  StMe  Trials  that  people  ought 
not  to  be  convicted  on  hearsay,  and  it  was  an  established 
xule,  regarded  as  highly  important,  that  there  must  be  two 
witnesses  in  treason;  but,  subject  to  these  small  rules,  the 


400  OPINIONS  AS  TO  VALUE  OF  OATHS. 

Chap.  XI.  opinion  of  the  time  seems  to  have  been  that  if  a  man  came 
and  swore  to  anything  whatever,  he  ought  to  be  believed 
unless  he  was  directly  contradicted.  The  greater  part  of 
the  evidence  given  in  the  trials  for  the  Popish  Plot  consists 
of  oaths  by  Gates,  Bedloe,  and  others,  that  they  heard 
this  man  or  that  say  he  would  kill  the  King,  or  that 
they  read  letters  to  the  same  effect,  which,  upon  mentally 
comparing  them  with  letters  written  by  the  accused,  they 
perceived  to  be  in  the  same  handwriting. 

The  remarks  which  in  the  present  day  would  occur  upon 
such  evidence,  and  which  seem  to  us  almost  too  obvious  to 
be  made,  are  that  it  would  be  wholly  unsafe  to  act  upon  it, 
even  if  it  were  given  by  witnesses  who  were  not  accomplices. 
To  convict  any  man  of  treason  simply  because  two  persons 
swore  that  on  two  separate  occasions  he  made  separate 
treasonable  overtures  to  them,  there  being  no  corroboration 
whatever  of  their  statement,  would  put  every  honest  man's 
life  at  the  mercy  of  every  pair  of  villains  in  the  country.  If 
the  evidence  were  given  by  accomplices,  the  jury  would  be 
told  to  pay  no  attention  to  it  unless  it  was  corroborated  by 
independent  evidence  ;  but  this  does  not  seem  to  have  occurred 
to  the  judges  and  juries  of  the  seventeenth  century.  The 
judges  continually  say  that  no  doubt  accomplices  are  bad 
men,  but  that  if  their  evidence  is  not  taken  crimes  will  not 
be  discovered  ;  and  the  juries  seem  to  have  thought  (as  they 
very  often  still  think)  that  a  direct  unqualified  oath  by  an 
eye-  or  ear-witness  has,  so  to  speak,  a  mechanical  value,  and 
must  be  believed  unless  it  is  distinctly  contradicted.  This 
is  strongly  illustrated  by  the  circumstance  that  the  objections 
made  by  the  accused  persons  to  the  evidence  against  them 
almost  always  took  the  form  of  objections  addressed  to  the 
court  to  the  competency  of  the  witnesses  and  not  of  objections 
.  to  their  credit  addressed  to  the  jury.  If  the  court  regarded 
a  man  as  "a  good"  (i.e.  a  competent)  "witness,"  the  jury 
seem  to  have  believed  him  as  a  matter  of  course,  unless  he 
was  contradicted,  though  there  are  a  few  exceptions.  ^  In 
Lord  Castlemaine's  case,  for  instance,  Dangerfield's  evidence 
was  left  to  the  jury,  though  he  had  been  previously  convicted 
1  7  St.  Tr.  1110. 


NECESSITY  OF   COEEOBOEATION  UNNOTICED.  4OI 

of  "  six  great  enormous  crimes."     They  were,  however,  told  Chap.  XI. 
they  need  not  believe  him,  and  they  did  not. 

The  most  remarkable  illustration  of  these  remarks  is  to  be 
found  in  the  trial  of  the  ^  five  Jesuits.  Fen  wick  objected  that 
the  evidence  against  him  was  entirely  composed  of  accounts  of 
the  contents  of  letters  not  produced.  "  All  the  evidence  that  is 
"  given  comes  but  to  this  :  there  is  but  saying  and  swearing. 
"  I  defy  them  to  give  one  probable  reason  to  satisfy  any 
"  reasonable  man's  judgment  how  this  can  be."  "Upon  this 
Scroggs  observed :  "  Mr.  Fenwick  says  to  all  this,  here 
"  is  nothing  against  us  but  talking  and  swearing ;  but  for 
"  that  he  hath  been  told  (if  it  were  possible  for  him  to  learn) 
"  that  aU  testimony  is  but  talking  and  swearing,  for  all 
"  things,  all  men's  lives  and  fortunes,  are  determined  by  an 
"  oath,  and  an  oath  is  by  talking,  by  kissing  the  book  and 
"  calling  God  to  witness  to  the  truth  of  what  is  said." 

I  think  that  Fenwick  was  right  as  to  what  the  law,  or 
rather  the  practice  of  juries,  ought  to  be,  and  that  Scroggs 
was  right  as  to  what  it  actually  was  and,  to  a  certain  extent, 
stiU  is.  It  is  true  that  juries  do  attach  extraordinary  im- 
portance to  the  dead  weight  of  an  oath.  It  is  also  true,  so 
at  least  I  think,  that  a  consideration  of  the  degree  to  which 
circumstances  corroborate  each  other,  and  of  the  intrinsic 
probability  of  the  matter  sworn  to,  is  a  far  better  test  of  truth 
than  any  oath  can  possibly  be,  and  I  should  always  feel  great 
reluctance  to  convict  a  prisoner  on  the  uncorroborated  testi- 
mony of  a  single  witness  to  words  spoken,  or  to  any  other 
isolated  fact  which,  having  occurred,  leaves  behind  it  no 
definite  trace  of  its  occurrence. 

The  principle  that  the  uncorroborated  evidence  of  an 
accomplice  is  not  to  be  acted  upon,  which  is  now  well  estab- 
lished, though  it  cannot  be  said  to  have  the  force  of  a  positive 
rule  of  law,  seems  to  have  been  unknown,  and  was  at  all 
events  systematically  disregarded  and  even  disavowed  in  the 
seventeenth  century.  If  observed,  it  would  have  prevented 
every  one  of  the  unjust  convictions  referred  to. 

The  inference  suggested  by  studying   the   trials   for  the 

^  Whitbread,  Harcourt,  'Fenwick,  Gavan,  and  Turner,  7  St.  Tr.  311,  358, 
411. 

VOL.   I.  D  D 


402  PERJURY. 

Chap.  XI.  Popisli  plot  is  not  so  much  that  they  show  that  in  the 
seventeenth  century  judges  were  corrupt  and  timid,  or  that 
juries  were  liable  to  party  spirit  in  political  cases,  as  that 
they  give  great  reason  to  fear  that  the  principles  of  evidence 
were  then  so  ill  understood,  and  the  whole  method  of  criminal 
procedure  was  so  imperfect  and  superficial,  that  an  amount  of 
injustice  frightful  to  think  of  must  have  been  inflicted  at 
the  assizes  and  sessions  on  obscure  persons  of  whom  no  one 
ever  has  heard  or  will  hear.  A  perjurer  in  those  days  was 
in  the  position  of  a  person  armed  with  a  deadly  poison  which 
he  could  administer  with  no  considerable  chance  of  detection. 
What  the  political  trials  of  the  seventeenth  century  really  did 
was  to  expose  men  of  high  rank  and  conspicuous  position  to  the 
calamities  which  must  have  been  felt  by  thousands  of  obscure 
criminals  without  attracting  even  a  passing  notice.  The 
truculence  of  Jeffreys,  the  time-serving  cowardice  of  Scroggs, 
and  the  fierce  prejudice  of  some  of  the  jurors  were,  so  at 
least  we  must  hope,  exceptional ;  but  the  light  which  these 
trials  throw  on  what  must  have  happened  in  the  common 
routine  of  the  administration  of  criminal  justice  is  a  far  more 
serious  matter. 

In  some  matters  to  which  the  public  would  perhaps 
attach  more  importance  than  professional  persons,  the  rules 
of  evidence  in  the  seventeenth  century  were  administered 
in  a  way  which  might  be  regarded  as  more  favour- 
able to  the  prisoner  than  our  modern  practice.  Evidence 
was  not  confined  to  the  issue  with  anything  like  the  modern 
strictness.  For  instance,  prisoners  were  allowed  to  prove 
almost  anything  by  way  of  discrediting  a  hostile  witness.  On 
the  other  hand,  cross-examination  to  credit  was  practically 
unknown,  though  the  judges  appear  to  have  varied  and  to  have 
been  at  times  partial  in  their  practice  in  relation  to  this 
matter.  When  Gates  was  tried  for  perjury,  he  was  stopped  as 
soon  as  he  asked  a  witness  any  question  tending  "  to  ensnare 
him."  In  our  times  this  practice  has  been  reversed.  A 
witness  may  be  cross-examined  to  his  credit  to  any  extent, 
but  the  rule  is  that  his  answer  must  he  taken,  and  that  if  he 
swears  falsely  the  remedy  is  to  indict  him  for  perjury.  This, 
however,  was  not  established  till  comparatively  modern  times. 


DANGERS   OF  PERJURY.  4O3 

I  do  not  think  that  the  power  or  danger  of  perjury  has  Chap.XI. 
been  by  any  means  removed  since  Oates's  time.  I  am  not 
sure  that  it  has  been  as  much  diminished  as  we  are  accus- 
tomed to  believe.  Cross-examination  will  no  doubt  defeat 
it  in  some  cases.  If  Gates  and  the  others  had  been  cross- 
examined  with  what  would  now  be  considered  even  a 
moderate  degree  of  skill,  they  could  scarcely  have  been  be- 
lieved, and  they  must  either  have  exposed  themselves  to  con- 
tradiction or  have  forfeited  all  credit  by  forgetting  everything 
upon  which  they  could  be  contradicted ;  but  practice  and  time 
are  essential  to  the  efficiency  of  cross-examination,  and  with- 
out proper  instructions  to  the  cross-examiner  it  is  to  the  last 
degree  dangerous  to  a  prisoner's  interests.  In  the  seventeenth 
■century  the  judges  seem  to  have  done  most  of  the  cross-ex- 
amination ;  the  prisoner  could  have  no  instructions,  ^  and  it  was 
a  rule  that  trials  must  be  finished  at  a  single  sitting. 

It  must,  however,  be  admitted  that  under  particular  circum 
stances  no  really  effectual  protection  against  perjury  ever  has 
been  or  ever  can  be  devised.  If  all  the  circumstances  except 
•one  are  consistent  either  with  guilt  or  innocence,  and' that  one 
circumstance  depends  on  the  testimony  of  a  single  alleged  eye- 
or  ear-witness  to  an  act  done  or  words  spoken,  of  which  no 
assignable  trace  remains,  it  is  impossible  to  prevent  or  detect 
perjury.  ^  Suppose,  for  instance,  there  is  a  violent  riot,  and 
many  persons  are  present  merely  as  innocent  bystanders,  how 

^  Lord  Stafford's  trial  before  the  House  of  Lords  lasted  for  five  days ;  but  in 
Lord  Delamere's  trial  before  Jeffreys,  as  Lord  Higb  Steward,  Jeffreys  refused 
to  adjourn  for  the  night,  saying  that  he  greatly  doubted  whether  or  not  he  had 
power  to  do  so.  The  right  of  the  court  to  adjourn  in  cases  of  treason  or 
felony  was  not  fully  established  till  the  treason  trials  of  1794.  In  Scotland 
in  1765,  in  the  case  of  Nairne  and  Ogilvie,  the  court  sat  forty-three  hours 
(19  St.  Tr.  1326),  never  rising.  An  objection  was  taken  to  the  conviction  on 
the  ground  that  the  jury  rose  for  about  half  an  hour  for  refreshment ;  this, 
however,  was  overruled. 

"  In  the  case  of  R.  v.  Lyons  and  eight  others,  tried  at  the  Old  Bailey,  in 
February,  1863,  for  piracy  and  murder,  the  evidence  showed  that  the  prisoners, 
who  were  sailors  on  the  ship  Flowery  Land,  mutinied,  murdered  the  captain 
and  mate,  scuttled  the  ship,  and  went  off  in  a  boat.  When  the  captain  was 
killed,  the  carpenter,  Andersen,  a  Norwegian,  was  knocked  down  with  a  hand- 
spike. He  swore  that  one  of  the  prisoners,  Marcelino,  afterwards  said  to  him, 
"Me  strike  yoii."  This  was  the  only  evidence  of  Marcelino's  connection  with 
the  crime.  He  was  nevertheless  convicted  ;  but  he  afterwards  received  a  free 
pardon,  as  it  was  thought  that  a  Norwegian's  impression  of  what  a  Spaniard 
■said  in  broken  English  was  not  evidence  snfiiciently  weighty  to  justify  a  capital 
conviction. — 59  C.  C.  C.  Sessions  Papers,  275,  286. 

D  D   2 


.404  TEIAL    OF   FITZHARRIS. 

Chap.  XI.  can  one  such  bystander  defend  himself  against  a  witness  who 
falsely  swears  that  he  saw  him  strike  a  blow  or  throw  a  stone,, 
or  that  he  heard  him  encourage  others  to  do  so  ? 

The  observations  which  arose  upon  the  trial  for  the  Popish 
plot  apply  to  the  trials  which  took  place  between  1680  and 
1688.  All  or  most  of  them  were  conducted  in  the  same  way 
and  upon  the  same  principles  of  procedure,  but  they  were  in 
themselves  so  memorable  that  I  will  make  a  few  observations- 
upon  some  of  the  most  important  of  them. 

The  first  of  the  trials  to  be  noticed  is  ^  that  of  Fitzharris, 
who  was  tried  in  1681  for  treason,  in  publishing  a  pamphlet 
accusing  Charles  II.  and  his  brother  of  ^  "  confederacy  with 
"  the  Pope  and  the  French  to  introduce  Popery  and  arbitrary 
"  government,"  and  calling  on  the  nation  to  "  up  all  as  one- 
"  man,  look  to  your  own  defence  e'er  it  be  too  late,"  with 
much  other  violent  language  to  the  same  effect.  He  pleaded,, 
first,  that  he  was  impeached  for  the  same  offence,  and  that 
the  impeachment  was  still  pending  ;  but  this  plea  was  ^  over- 
ruled on  argument,  the  Court  giving  no  reasons.  This  pro- 
ceeding was  severely  and,  I  think,  justly  criticised.  He  was 
then  tried,  convicted,  and  executed.  About  the  facts  there 
was  no  doubt.  Fitzharris  had  made  a  proposal  to  one  Everard 
to  write  the  pamphlet.  Everard  invited  Fitzharris  to  his 
chambers  in  Gray's  Inn,  to  give  him  instructions,  and  con- 
cealed people  there  to  hear  what  passed.  Fitzharris  gave 
instructions  at  one  meeting  and  corrected  the  draft  at  a 
second.  The  object  with  which  the  pamphlet  was  written 
was,  according  to  Everard,  to  stir  up  a  civil  war  in  England, 
which  would  enable  Louis  XIV.  first  to  gain  Flanders,  *  "  and 
"  then  we  shall  make  no  bones  to  gain  England  too."  Fitz- 
harris's  defence  in  substance  was  that  the  pamphlet  was- 
written  by  the  orders  of  Charles  II. ;  that  he  meant  to  send 
it  to  the  leading  men  of  the  exclusionist  party,  and  to  have  it 
found  in  their  possession  as  evidence  against  them  to  be  used 
on  occasion.  ^  This  seems,  on  the  whole,  to  have  been  what 
he  meant  to  suggest  by  a  number  of  witnesses  whom  he  called, 

1  8  St.  Tr.  243.  ^  /j_  333^  ^nd  see  357.         ^  lb.  326.         *  lb.  345. 

5  See  some  remarks  by  Sir  J.  Hawles,  pp.  439—440 ;  and  see  378  for  Fitz- 
liarria's  defence. 


TEIAL  OF  STEPHEK  COLLEDGE.  4O5 

though  he  put  the  matter  in  rather  a  different  way  in  his  Chap.  XI. 

"defence,  alleging  that  he  drew  Everard  on  to  write  the  pamph-  ' 

let  in  order  to  give  information  against  him.     Fitzharris  was 

■executed.      Hawles   observes  that  both  Whigs  and   Tories 

"  agreed  he  deserved  to  be  hanged.     The  first  thought  it  for 

"  their  advantage  to  save  him  if  he  would  confess ;  but  the 

'"  last  thought  it  was  fit  to  hang  him  for  fear  he  would  confess." 

The  question  in  respect  of  which  his  confession  was  hoped 

And  feared  was  apparently  the  degree  in  which  the  King  and 

other  distinguished  persons  had  really  been  his  accomplices. 

The  trial  is  confusing,  as  Fitzharris  only  hinted  at  his  defence, 

■and  was  obviously  weak  and  timid.     One  point  worth  noticing 

in  the  case  is  the  manner  in  which  he  was  hampered  in  his 

defence.     The  Attorney-General  (Sir  R.  Sawyer)  strenuously 

•objected  to  his  "solicitor  assisting  him  in  any  way,  and  indeed 

to  his  wife  being  by  him.     He  had  a  copy  of  the  pannel,  with 

■crosses  to  show  whom  he  was  to  challenge,  which  gave  special 

■offence.      Upon  this   ^said  Jeffreys,   "  God  forbid    but  his 

"'  memory  should  be  helped  in  matters  of  fact,  as  is  usual  in 

"  these  cases ;  but  no  instructions  ought  to  be  given  him  here." 

It  was  also  remarked  that  Mr.  Fitzharris  "had  a  perfect  formal 

'"  brief,"  and  he  was  compelled  after  much  discussion,  as  a  sort 

oi  compromise,  to  give  the  papers  to  his  wife,  who,  however, 

was  allowed  to  stand  by  him. 

^  The  trial  of  Stephen  Oolledge  is  next  to  be  noticed.  To 
■do  justice  to  it  would  require  more  space  than  I  can  afford. 
He  was  known  as  "  the  Protestant  joiner,"  and  was  accused 
■of  high  treason  by  Dugdale  and  others,  by  way  of  a  counter- 
blast  to   the  Popish    plot.      It   was   alleged   that  he   had 

"  A  solicitor  occupied  a  low  position  in  those  days.  "  It  is  not  the  duty  of 
■"  a  solicitor  to  bring  papers  ;  he  was  only  appointed  by  the  court  to  run  of 
"  errands  ;  he  was  not  to  advise  or  furnish  with  matter  of  defence  "  (p.  353), 
■said  the  Solicitor-General.  The  solicitor  was  inferior  to  the  attorney,  who,  as 
his  name  implied,  represented  his  client.  It  is  odd  that  "  solicitor  "  should 
Jiave  b^en  regarded  of  late  years  as  the  more  honourable  title. 

"  8  St.  Tr.  332.  "Jeffreys:  I  see  it  is  a  perfect  formal  brief.  Mrs.  F. :  Must 
"  he  have  nothing  to  help  himself  ?  F.:  In  short,  the  King's  counsel  would  take 
■"  my  life  away  vnthout  letting  me  make  my  defence.  A.-G. :  I  desire  not  to 
"  take  aiiy  papers  from  him  if  they  be  such  as  are  permitted  by  law.  S.-Gf.  .- 
' '  My  lord,  his  innocency  must  make  his  defence,  and  nothing  else.  Jeffreys  : 
"  My  lord,  we  are  in  your  lordship's  judgment,  whether  you  will  allow  these 
"  papers.  L.  0.  J.  :  Let  us  see  the  papers.  F. :  My  lord,  I  will  deliver  it  to 
■"  my  wife  again.  L.  C.  J. .-  Let  it  be  so." 
•s  ,8  St.  Tr.  549. 


406  TRIAL  OF  STEPHEN  COLLEDGE. 

Chap.  XI.  proposed  to  Dugdale  to  murder  the  King,  but  the  London 
grand  jury  threw  out  the  bill  against  him.     Hereupon  the 
witnesses  swore  that  at  the  time  of  the  Oxford  Parliament 
he   said  at  Oxford  treasonable  words  in  pursuance  of  his. 
design.     The  bill  was  found  by  the  grand  jury  of  Oxford- 
shire, and  after  a  long  and  memorable  trial  Oolledge  was 
convicted  before  Chief  Justice  North,  afterwards  Lord  Keeper. 
On  his  way  to  the  trial  he  was  taken  into  a  house  and  de- 
prived of  all  the  papers  provided  for  his  defence,  although 
he  had  been  allowed  the  use  of  pen,  ink,  and  paper,  and  the 
assistance  of  counsel  and  solicitor,  and  to  see  his  friends,  by 
the  express  orders  of  the  King  in  council.     The  papers  seem 
to  have  been  examined  by  the  King's  counsel,  who  were 
enabled    to    manage    their    case    accordingly,    not    calling 
certain  witnesses  whom  CoUedge  could  have  contradicted  or 
cross-examined.      This  was   one   of  the  most  wholly  inex- 
cusable transactions  that  ever  occurred  in  an  English  court, 
and  leaves  a  stain  on  the  Lord   Keeper's  character  which 
the  many  amiable  points  in  it  cannot  efface.     It  must  be 
owned,    however,  that  it  carried   the  principle  that  counsel 
were  not  to  be  allowed  to  a  prisoner  to  its   logical  result. 
Many  of  the  papers  were  returned  to  Oolledge ;  but  one,  which 
the  judges  considered   ^"a  most  seditious  libellous  speech 
"to  spit  venom  upon   the   Government  in  the  face  of  the 
"  country,"  and  also  instructions  as  to  examining  the  wit- 
nesses, were  kept  from  him,  as  the  Chief  Justice  observed 
that  to  let  him  have  them  would  be  "  to  give  you  counsel 
"  in  an  indirect  way." 

The  vigour  with  which  Oolledge  under  these  difficulties, 
asserted  his  rights  and  defended  himself  through  a  sit- 
ting of  twelve  or  thirteen  hours  was  admirable.  The  evi- 
dence was  much  the  same  as  in  the  Popish  plot  cases. 
Dugdale  and  others  swore  that  he  made  treasonable  pro- 
posals to  them,  and  ^  other  witnesses  proved  that  he  had 
spoken  unfavourably  of  Charles  II.,  and  justified  the  Long. 
Parliament  of  1640 — language  which  it  was  absurd  to  describe 
as  treasonable.  A  mass  of  contradictory  and  defamatory 
evidence  was  brought  against  the  witnesses  for  the  prosecu- 
1  8  St.  Tr.  585.  «  jj_  gle. 


TKIAL  OF  COUNT  CONINGSMAEK.  4O7 

tion,  and  ^  Gates  in  particular  contradicted  Dugdale,  getting  Chap.  XI. 
into  a  shameful  altercation  with  him,  in  which  Dugdale  com- 
mitted  a  perjury  which  was  afterwards  detected,  and  which 
prevented  his  reappearance  as  a  witness.  The  trial  became 
a  fierce  dispute,  made  up  of  contradiction  upon  contradiction, 
till  every  one  was  tired  out.  The  counsel  for  the  Crown, 
however,  and  particularly  the  Solicitor-General  (Finch)  and 
Jeffreys,  made  elaborate  speeches,  having  thelast  word.  ^  The 
Chief  Justice  summed  up  very  shortly,  saying,  "  For  me  to 
"  speak  out  of  memory,  I  had  rather  you  should  recur  to 
"  your  own  memories  and  your  own  notes,"  showing  clearly 
that  he  had  taken  no  notes.  Colledge,  indeed,  pressed  him 
to  refer  to  his  notes,  which  he  refused  to  do.  Colledge  was 
convicted  and  executed. 

The  trial  of  Colledge  may,  I  think,  be  put  on  a  level  with 
that  of  Lord  Stafford  in  regard  of  the  iniquity  of  the 
result.  The  behaviour  of  the  judges,  though  not  brutal, 
was  singularly  unfair  to  the  prisoner  and  weak  as  against 
the  counsel  for  the  Crown. 

The  long  list  of  political  prosecutions  which  occurred  at 
this  time  is  varied  by  a  memorable  trial  for  a  private  crime, 
namely,  the  ^  trial  of  Count  Coningsmark  for  the  murder  of 
Mr.  Thynne.  Thynne  was  a  very  rich  country  gentleman, 
then  lately  married  to  Lady  Ogle.  He  was  shot  dead  in  his 
coach  in  Pall  Mall  by  Boroski,  a  Pole,  acting  under  the  orders 
and  in  the  company  of  Lieutenant  Stein  and  Captain  Vratz, 
two  German  officers ;  all  three  being,  so  to  speak,  retainers  of 
Count  Coningsmark.  The  substantial  question  in  the  case 
was  whether  the  Count  was  or  was  not  an  accessory  before 
the  fact,  as  there  was  no  question  as  to  the  guilt  of  the 
other  three.  Charles  was  known  to  be  favourably  disposed 
to  the  Count,  and  he  was  accordingly  tried  with  conspicu- 
ous humanity  and  favour.      Perhaps  the  most  remarkable 

^  P.  641.  Gates's  evidence  in  this  trial  was  curious  in  many  ways.  He 
deposed  for  one  thing  that  he  went  to  the  Crown  Tavern  with  Colledge,  when, 
"  We  did,  to  divert  ourselves  till  diriner  came  up,  enter  into  a  philosophical 
"  discourse  with  one  Mr.  Savage."  .  .  .  "It  was  concerning  the  existence  of 
"  God,  whether  that  could  he  proved  by  natural  demonstration,  and  whether 
"  or  no  the  soul  was  immortal."  He  said  that  on  that  occasion  no  treason 
was  talked,  though  one  Smith  swore  the  opposite. — P.  646 — 647. 

2  712—714.  '■'  9  St.  Tr.  1. 


408  TRIAL  OF  LORD   WILLIAM  RUSSELL." 

Chap.  XI.  circumstance  in  the  case  is  that  the  Lord  Chief  Justice  (Pem- 
berton),  obviously  as  a  favour  to  the  prisoner,  asked  him  ^a 
long  series  of  questions  through  the  interpreter,  drawing  his 
attention  to  all  the  suspicious  circumstances  in  the  case,  and 
asking  how  he  explained  them.  The  counsel  complained 
that  the  interpreter  acted  as  an  advocate.  The  Court  said 
that  the  case  was  an  extraordinary  one,  as  none  of  the 
prisoners  could  speak  English.  The  Count  was  acquitted, 
it  has  usually  been  said  unfairly.  I  have  little  doubt  that 
he  was  guilty ;  but  I  am  not  quite  sure  that  it  was  posi- 
tively proved  that  his  friends  and  their  servant  did  not  go 
beyond  their  instructions. 

Passing  over  with  a  bare  reference  the  various  angry  and 
obviously  partisan  trials  ^  connected  with  the  election  of  the 
sheriffs  of  London,  in  1682,  I  pass  to  the  celebrated  trials  of 
Lord  William  Russell  and  Algernon  Sidney  for  treason.  ^  That 
both  of  these  eminent  persons  had  been  engaged  in  a  con- 
spiracy for  an  insurrection  there  seems  to  be  little  doubt. 
There  is  no  evidence  that  they  were  privy  to  the  Rye  House 
plot — Rumbold's  scheme  for  killing  Charles  and  James  on 
their  way  from  Newmarket ;  but  they  scarcely  denied  their 
participation  in  a  conspiracy  to  levy  war  against  Charles  IT. 
The  witnesses  against  them  were  accomplices,  namely. 
Lord  Howard  and,  in  Lord  William  Russell's  case,  Ramsey, 
who,  as  Hallam  remarks,  was  an  unwilling  witness.  Lord 
Howard  was  certainly  swearing  to  save  his  own  life,  and 
he  was  permitted,  after  the  manner  which  prevailed  for  many 
years  after  the  trial,  to  tell  his  story  in  his  own  way,  the 
result  of  which  was  that  he  made  a  long  and  elaborate 
speech.  *It  was  proved  by  several  witnesses  that  Lord 
Howard  had  on  other  occasions  denied  that  Lord  W.  Russell 
was  concerned  in  the  plot.     *  Howard's  explanation  was  that 

1  9  St.  Tr.  60—64. 

^  Pilkington  and  others  for  a  riot,  9  St.  Tr.  187  :  Sir  Patience  Ward  for 
perjury,  lb.  299.     This  last  was  a  shameful  case. 

'  Lord  Macaulay's  account  of  them  is  comprised  in  very  few  words. 
"Russell,  who  appears  to  have  heen  guilty  of  no  offence  falling  within  the 
"  definition  of  treason,  and  Sidney,  of  whose  guilt  no  legal  evidence  could  be 
"  produced,  were  beheaded,  in  defiance  of  law  and  justice."  Mr.  Hallam  is 
fuller,  and  I  think  fairer.  See  Const.  Hist.  ii.  457.  Lord  W,  Russell's 
trial  is  in  9  St.  Tr.  577. 

■*  J^b-  619.  6  lb.  623. 


TRIAL   OF   ALGERNON   SIDNEY.  4O9 

on  one  occasion  he  did  say  what  was  alleged,  out  of  regard  to  Chap.  XI. 
the  Duke  of  Bedford.     As  to  another  occasion  on  which  he  •  - 

was  said  to  have  sworn  to  what  he  said,  he  declared  that 
what  he  swore  to  was,  that  he  did  not  believe  Lord  W.  Russell 
had  any  design  to  murder  the  King.  In  this  he  said  he  was 
"carrying  his  knife  close  between  the  paring  and  the  apple." 
^  The  prisoner's  defence  was  so  weak  and  hesitating,  that  it  is 
difficult  to  doubt  that  the  charge  made  against  him  was  sub- 
stantially true.  It  is  remarkable  that  he  objected  to  the 
introduction  of  hearsay  evidence  as  tending  to  prejudice  him, 
an  objection  which  in  those  days  was  seldom  taken,  and 
which,  indeed,  was  opposed  to  the  practice  of  the  courts. 
The  jury  were  told,  as  they  always  were,  that  the  prisoner 
was  not  to  be  convicted  on  such  evidence.  The  conduct  of 
the  judges  in  this  trial  was,  I  think,  moderate  and  fair  in 
general.  The  Chief  Justice's  direction  to  the  jury  was  more 
favourable  to  the  prisoner  than,  according  to  precedents  which 
are  still  binding,  it  ought  to  have  been.  ^  He  told  them  in 
substance  that  a  conspiracy  to  levy  war  against  the  King 
was  not  an  .  overt  act  of  conspiring  the  King's  death,  unless 
the  war  to  be  levied  was  of  such  a  nature  as  to  expose  the 
King  to  personal  danger. 

^  The  trial  of  Sidney  much  resembled  that  of  Russell.  He 
was  indicted  for  compassing  and  imagining  the  King's  death. 
Three  overt  acts  were  charged  as  displaying  this  intention, 
namely, — (1)  holding  consultations  amounting  to  a  conspiracy 
to  levy  war  ;  (2)  sending  Aaron  Smith  to  Scotland  to  invite 
certain  Scotchmen  to  come  and  join  in  the  conspiracy;  (3) 
composing  a  treasonable  libel,  affirming  amongst  other  things, 

1  "He  once  intended  to  have  related  the  wliole  faet  just  as  it  was,  but  his 
"  counsel  advised  him  against  it."  ..."  He  was  a  man  of  so  much  candour 
"that  he  spoke  little  as  to  the  fact ;  for  since  he  was  advised  not  to  tell  the 
"  whole  truth,  he  could  not  speak  against  that  which  he  knew  to  be  true  though 
"in  some  particulars  it  had  been  carried  beyond  the  truth." — Burnet,  Own 
Tirnes,  ii.  172,  173. 

^  "  The  question  before  you  will  be  whether  upon  this  whole  matter  you  do 
"  believe  my  Lord  Russell  had  any  design  upon  the  King's  life,  to  destroy  the 
"  King,  to  take  away  his  life,  for  that  is  the  material  part  here.  It  is  used 
"  and  given  you  (by  the  King's  counsel),  as  an  evidence,  of  this,  that  he  did 
"  conspire  to  raise  an  insurrection  .  .  .  and  to  surprise  the  King's  guard, 
"  which,  say  they,  can  have  no  other  end  but  to  seize  and  destroy  the  King, 
"  &c."— 9  St.  Tr.  636.  Cf.  Foster's  Discourse  on  Treason,  p.  197,  where 
„  wider  doctrine  is  laid  down.  ?  St.  Tr.  9818—1002. 


4IO  LEGAL  QUESTIONS   IN   SIDNEYS  TRIAL. 

Chap.  XI.  that  the  King  was  subject  to  Parliament,  and  that  "  we  may 
"  therefore  change  or  take  away  kings." 

Lord  Howard,  if  believed,  proved  the  first,  and  less  dis- 
tinctly the  second,  overt  act.  He  gave  the  same  evidence  as  in 
Lord  Russell's  case,  and  was  subjected  to  the  same  or  similar 
contradictions.  As  to  the  third,  the  papers  were  undoubtedly 
found  in  the  prisoner's  study ;  ^  and  three  persons — Sheppard, 
who  had  seen  him  endorse  bills ;  Gary,  who  knew  his  endorse- 
ments, and  Cook,  who  cashed  bills  bearing  his  endorsement, — 
all  proved  his  handwriting.  This  was  evidence  which  in  the 
present  day,  would  be  not  only  admissible,  but  practically 
conclusive.  It  seems,  though  it  is  not  quite  clear  ^  on  the 
report,  that  "  some  papers  of  his  particular  affairs  "  were  pro- 
duced for  comparison.  In  later  times,  and  down  to  1854  (see 
17  &  18  Vic.  c.  125,  s.  27,  and  28  Vict.  c.  18,  s.  8),  this  method 
of  proof  was  regarded  as  improper.  But  the  law  of  evidence 
hardly  existed  in  those  days,  and  nothing  can  be  more  vague 
and  loose  than  the  way  in  which  the  matter  was  handled. 

The  most  important  points  were  these  : — 

(1)  It  was  said  that  a  conspiracy  to  levy  war  was  not  an 
overt  act  of  treason  by  compassing  the  King's  death.  Much  no 
doubt  might  be  said  in  favour  of  this  view  ;  but  the  law  was 
otherwise  interpreted,  not  only  before,  but  after,  Sidney's 
time,  particularly  in  the  case  of  Lord  Preston  and  Ashton, 
who  were  tried  by  Chief  Justice  Holt. 

(2)  It  was  said  that  there  was  only  one  witness,  whereas 
there  should  have  been  two.  I  do  not  think  this  objection 
was  accurately  taken.  Assuming  the  possession  and  writing 
of  the  pamphlet  to  be  an  overt  act  of  treason,  it  was  proved 
by  at  least  four  witnesses,  namely,  ore  who  found  it  on  the 
prisoner's  table,  and  three  who  swore  it  was  his  handwriting. 

(3)  It  was  said  that  the  possession  of  the  writing  was  not 
an  overt  act  of  treason,  as  it  appeared  only  that  the  paper 
was  in  the  prisoner's  study,  and  not  that  he  had  published 
it,  or  that  he  meant  to  publish  it,  in  furtherance  of  his 
design,  and  this  I  think  was  true ;  but,  regard  being  had  to 
the  then  state  of  the  law,  I  do  not  think  that  the  ille- 
gality of  permitting  the  jury  to  treat  the  possession  of  the 

1  9  St.  Tr.  854.  '  lb.  354. 


LEGAL   QUESTIONS  IN   SIDNEY'S  TRIAL.  4II 

pamphlet  as  an  overt  act  of  treason  was  as  clear  as  it  would  Chap.  XI. 
be  at  present.  ^In  1663,  Twyn,  a  printer,  was  executed 
for  treason,  for  printing  a  book  much  to  the  same  effect  as 
Sidney's  pamphlet.  In  Twyn's  case  no  doubt  there  was  a 
much  nearer  approach  to  publication  than  in  Sidney's ;  but 
*  Jeffreys's  summing  up  (which  is  not  very  clearly  reported) 
seems  to  assume  that  the  book  was  intended  to  be  published 
in  connection  with  the  conspiracy  to  make  war  on  the  King. 
If  it  were  so,  I  am  not  sure  that  it  might  not  have  amounted 
to  an  overt  act  of  a  conspiracy  to  levy  war,  which  was  itself 
held  to  be  an  overt  act  of  imagining  the  King's  death.  By 
a  statute  then  in  force,  13  Chas.  2.  c.  1,  it  was  enacted  in  sub- 
stance that  any  declaration  by  writing,  printing,  or  speaking 
of  an  intention  to  compass  the  King's  death,  imprisonment, 
or  restraint,  or  to  depose  him,  or  levy  war  against  him,  should 
be  treason  ;  but  prosecutions  were  limited  to  six  months  after 
the  offence.  There  was  no  proof  at  all  as  to  the  time  when 
the  pamphlet  in  Sidney's  possession  was  written. 

(4)  Objections  were  taken  to  the  indictment  which  I  am 
inclined  to  think  were  properly  overruled. 

(5)  It  was  said  that  Jeffreys  treated  the  prisoner  brutally, 
misled  him  as  to  the  law,  designedly  interrupted  him  in  his 
defence,  and  summed  up  more  like  an  advocate  than  a  judge. 
No  doubt  he  disgraced  himself;  but  I  think  he  was  right  in 
many  of  his  remarks,  and  that  Sidney  did  not  understand 
the  law,  and  overrated  the  importance  of  various  technicalities 
on  which  he  relied.  When  you  have  on  the  one  side  a 
prisoner  guilty  of  a  crime  which  many  people  regarded,  and 
still  regard,  as  an  act  of  virtue,  and  on  the  other  a  judge 
whose  name  is  justly  steeped  in' infamy,  and  when  the  judge 
has  to  try  the  prisoner  according  to  a  law  full  of  fiction  and 
uncertainty,  obscure  in  some  points,  and  irrational  in  others, 
it  is  almost  hopeless  to  do  strict  justice  between  them,  and 
it  really  is  not  worth  the  trouble  to  try  to  do  so,  for  the 
questions  which  would  have  to  be  determined  for  that  pur- 
pose have  long  ceased  to  have  any  interest  or  importance. 

I  may,  however,  observe  that  the  ^  grounds  on  which  the 

^  6  St.  Tr.  514,  and  see  Kelyng's  Eeporls,  p.  57.  ^  9  St.  Tr.  893. 

3  lb.  695—696  and  996—997. 


412  REVERSAL   OF  EUSSELL's  AND   SIDNEY'S  ATTAINDERS. 

Chap.  XI.  attainders  of  Kussell  and  Sidney  were  reversed  seem  to 
me  doubtful.  They  were  in  each  case  refusal  of  the  chal- 
lenge of  jarors  for  want  of  freehold,  and  "partial  and  unjust 
"  constructions  of  law  "  (unspecified).  Any  one  who  will  read 
the  arguments  as  to  the  question  of  the  jurors  will,  I  think, 
agree  with  me  in  saying  that  the  law  upon  the  subject  was  at 
that  time  utterly  uncertain,  there  being  no  direct  authority 
upon  it  till  the  question  was  settled  by  the  Bill  of  Rights 
(1  Will.  &  Mary,  st.  2,  c.  2).  This  Act  converted  many  doubt- 
ful propositions  into  law  by  saying  that  they  were  "  antient 
rights  and  liberties,"  when  all  that  could  truly  have  been  said 
was  that  it  would  have  been  well  to  act  upon  that  supposition 
in  the  past  and  that  for  the  future  the  matters  stated  should  be 
held  to  be  law.  With  regard  to  the  "  partial  and  unfair  con- 
"  structions  of  law,"  I  have  already  spoken.  In  Sidney's  case 
it  was  also  said  that  "there  was  produced  a  paper  found  in  the 
"  closet  of  the  said  Algernon,  supposed  to  be  his  handwriting, 
"  which  was  not  proved  by  the  evidence  of  any  one  witness  to 
"  be  written  by  him,  but  the  jury  was  directed  to  believe  it 
"  by  comparing  it  with  other  writings  of  the  said  Algernon." 
This  recital  is  directly  contradicted  by  the  report  of  the  trial. 
It  is  remarkable  that  the  far  stronger  ground  that  there  was 
no  proof  that  he  meant  to  publish  the  paper,  or  that  it  had 
any  connection  with  the  plot  imputed  to  him,  is  not  referred 
to.  Perhaps  the  recollection  of  the  13  Chas.  2,  c.  1,  in  force 
at  the  time  of  the  trial  explains  the  omission. 

The  trials  of  Russell  and  Sidney  were  followed  by  others 
which  I  must  pass  over  with  a  very  few  words.  Oates's  trial 
for  perjury  was  not,  I  think,  unfair.  Jeffreys  treated  him  in 
parts  of  his  defence  with  brutality,  but  Gates  undoubtedly 
tried  to  bully  the  Court  as  he  had  done  on  former  occasions. 
I  cannot  say  that  I  think  the  sentence  upon  him  too  severe. 
To  be  flogged  to  death  would  have  been  an  appropriate  end  for 
him ;  but  though  there  are  crimes  which  would  justify  the 
infliction  of  death  by  torture,  it  is  wrong  to  pass  such  a 
sentence  under  false  pretences.  Perjury  was  not  a  capital 
crime,  and  ought  not  to  have  been  treated  as  one. 

Of  the  trials  on  the  western  circuit,  after  Monmouth's  in- 
surrection, little  need  be  said,  as  they  throw  no  light  on  the 


TRIAL   OF  LADY  LISLE.  413 

ordinary  administration  of  justice.  I  may,  however,  make  chap.  XI 
one  or  two  remarks  on  the  case  of  Lady  Lisle.  It  was  cruel, 
but  legal,  to  sentence  a  woman  to  be  burnt  alive  for  harbour- 
ing two  rebels  for  a  night.  The  conviction  was  probably  illegal 
on  the  ground  that  Hicks,  whom  she  harboured,  had  not  been 
convicted  before  her  trial.  Her  attainder  was  reversed  in 
Parliament  upon  this  ground,  and  ^Foster,  relying  on  the 
authority  of  ^  Hale,  treats  this  as  good  law.  It  can,  no  doubt, 
be  supported  by  some  strong  arguments,  though  others  in  the 
contrary  direction  might  be  suggested;  but  the  law  was 
vague.  Hale  gives  no  authority  for  his  statement,  and  indeed 
puts  it  forward  in  the  second  passage  quoted  only  as  his 
opinion — "  It  seems  to  me."  ^  I  think  that  this  is  another  of 
the  numerous  instances  in  which  there  really  was  no  definite 
law  at  all,  and  in  which  the  fact  that  a  particular  course  was 
taken  by  a  cruel  man  for  a  bad  purpose  has  been  regarded 
as  proof  that  the  course  taken  was  illegal. 

The  conduct  of  Jeffreys  in  this  trial  has  made  his  memory 
justly  infamous ;  but  there  is  one  point  in  it  on  which  a 
remark  arises.  The  most  disgra.ceful  part  of  the  trial,  or 
rather  the  most  notorious  and  glaring  instance  of  brutality 
which  occurred  in  it,  is  the  way  in  which  the  judge  treated 
the  principal  witness,  Dunne,  at  whom  he  repeatedly  *  swore 
and  railed.  It  ought,  however,  to  be  said  that  Dunne  was  a 
liar,  and  that,  striking  out  the  brutality  and  ferocity  of  his 
language,  Jeffreys's  cross-examination  was  masterly,  and  not 
only  involved  Dunne  in  lie  after  lie,  but  at  last  compelled 
him  to  confess  the  truth.  He  wished  no  doubt,  to  save  his 
mistress's  life,  and  kept  back  the  essential  part  of  the  story 
till  he  could  face  it  out  no  longer. 

Many  other  trials  of  this  period  I  pass  over  unnoticed,  though 
they  were  of  great  interest.  The  case  of  Lord  Delamere,  who 
was  tried  for  high  treason  before  Jeffreys,  sitting  as  Lord 

1  P.  346.  2  1  Hale,  F.  C.  238,  and  2  Hale,  P.  C,  223. 

3  See  Vol.  II.  p.  234-5. 

4  "'W'hy,  you  impudent  rascal."  "But,  you  blockhead."  "Why,  thou 
"vile  wretch."  "Jesus  God,  there  is  no  sort  of  conversation  nor  human 
"  society  to  be  kept  with  such  people  as  these."  "It  seems  that  the  saints 
"  have  a  certain  charter  for  lying,"  &c. — 11  St.  Tr.  325 — 360.  See  Dunne's 
confession  of  his  falsehoods,  355 — 360.^  The  whole  passage  deserves  careful  study 
on  many  grounds. 


414  TRIAL   OF  THE   SEVEN  BISHOPS. 

Chap.  XI.  High  Steward  with  a  jury  of  peers,  deserves  mention.  The 
prisoner  was  clearly  innocent,  and  proved  his  innocence,  and 
was  acquitted.  The  remarkable  point  in  the  case  is  that 
Jeffreys  seems  to  have  tried  it  with  propriety  and  dignity. 
^  A  question  arose  on  the  trial  whether  the  Court  might 
adjourn  till  the  next  day.  The  lords  triers  obviously  wished 
to  do  so.  The  judges,  on  being  consulted  on  the  lawfulness 
of  an  adjournment,  refused  to  give  an  opinion  ;  and  Jeffreys 
moderately  and  calmly  refused  to  adjourn,  considering  it 
doubtful  whether  he  had  a  right  to  do  so. 

The  last  of  the  trials  to  be  noticed  before  the  Revolution 
is  the  memorable  case  of  the  seven  bishops.  ^  Lord  Mac- 
aulay's  account  of  it  is  fuller  and  more  lawyer-like  than 
most  of  his  notices  of  trials  at  this  period,  and  I  need  only 
refer  to  it  for  the  historical  and  picturesque  elements  of  the 
case.  In  a  legal  point  of  view,  the  trial  can  be  described 
only  as  chaotic.  The  four  judges  not  only  differed,  but 
were  obviously  frightened,  and  would  have  been  glad  to  get 
rid  of  the  case  on  the  technical  ground  that  no  publication 
was  proved  in  Middlesex.  Wrangles  about  the  evidence  and  its 
effect,  quarrels  between  the  counsel,  and  occasional  differences 
between  the  judges  made  up  the  greater  part  of  the  trial,  and 
exhibited  the  administration  of  justice  in  a  contemptible  light. 
There  was  a  total  want  of  order,  regularity,  and  dignity  in  the 
whole  proceeding.  The  most  curious  part  of  it  is,  that  all 
sides  appear  to  have  agreed  that  the  falsehood  of  the  matter 
alleged  (the  non-existence  of  the  dispensing  power)  and  the 
malice  of  the  defendants  must  be  left  to  the  jury.  The  four 
judges  gave  contradictory  directions.  Wright,  C.J.,  said, 
"I  do  take  it  to  be  a  libel."  Holloway,  J.,  said  he 
thought  the  bishops  ought  to  be  convicted,  if  the  jury  were 
"  satisfied  there  was  an  ill  intention  of  sedition  or  the  like." 
Powell,  J.,  said,  "  I  cannot  see,  for  my  part,  anything  of 
"  sedition,  or  of  any  other  crime,  fixed  upon  these  reverend 

1  n  St.  Tr.  560-564. 

J  12  St.  Tr.  183.  I  think  Lord  Macaulay  makes  a  little  too  much  of 
Finch's  intemiption  of  the  case,  and  a  good  deal  too  much  of  Somers's  speech. 
He  only  repeated  in  a  condensed  shape  what  his  leaders  had  said  over  and 
over  again,  besides  I  do  not  think  the  report  can  be  more  than  an  abridgment 
of  what  was  really  said. 


REMAEKS   ON  TEIALS  UNDER  CHARLES  II.   AND  JAMES   II.  415 

"fathers;"  and  Allybone,  J.  said,   "The  Government  here  Chap.  XI. 

"  has  published  such  a  declaration  as  this  that  has  been  read, 

"  relating  to  matters  of  government,,  and  shall  or  ought  any- 

"  body  to  come  and  impeach  that  as  illegal  which  the  Govern- 

"  ment  has  done  ?   Truly,  in  my  opinion,  I  do  not  think  he 

"  should  or  ought."     He  added,   "  I  think  these  venerable 

"  bishops  did  meddle  with  that  which   did   not  belong  to 

"  them.     They  took  upon  them  in  a  petitionary  to  contradict 

"  the  actual  exercise  of  the  government,  which,  I  think,  no 

"  particular  persons  or  irregular  body  may  do."     The  result 

is  too  well  known  to  be  noticed.     Speaking  merely  as  a  lawyer, 

I  can  only  say  that  the  law  of  libel  at  that  time  was  so  vague, 

that  it  is  difficult  to  say  whether  or  not  a  perfectly  modest 

and  respectful  expression  of  the  opinion  that  the  king  had 

made   a  mistake   was   a  libel.     But   I   shall  examine  this 

matter  fully  hereafter. 

I  have  now  completed  what  I  had  to  say  on  the  adminis- 
tration of  criminal  justice  under  the  Stuarts  after  the  Eestora- 
tion.  The  most  general  observation  which  it  suggests  to  me 
is,  that  it  brought  to  light  and  illustrated  in  the  case  of 
eminent  persons  defects  both  in  the  law  itself  and  in  the 
methods  of  procedure  which  must  have  produced  a  great 
amount  of  obscure  injustice  and  misery.  There  must  have 
been  plenty  of  Oateses  and  Bedloes  at  the  assizes  and  quarter 
sessions  who  have  never  been  heard  of,  and  no  doubt  scores 
or  hundreds  of  obscure  people  suffered  for  common  burglaries 
and  robberies  of  which  they  were  quite  as  innocent  as  Stafford 
was  of  the  high  treason  for  which  he  was  convicted.  There 
certainly  was,  however,  a  considerable  improvement  in  the 
methods  of  trial  during  the  seventeenth  century.  Prisoners 
were  not  tortured  (as  they  were  in  every  other  part  of  Europe) ; 
witnesses  were  produced  face  to  face,  whom  the  prisoner  could 
cross-examine.  The  rules  of  evidence  were  beginning  to  be,  to 
some  extent,  though  to  a  small  extent,  recognised  and  under- 
stood, and  by  the  end  of  the  century  the  evils  of  judicial 
corruption  and  subserviency,  and  the  horrors  of  a  party  war- 
fare carried  on  by  reciprocal  prosecutions  for  treason  alternately 
instituted  against  each  other,  with  fatal  effect,  by  the  chiefs  of 
contending  parties,  had  made  so  deep  an  impression  on  the 


41 6  CHANGES  IN   CRIMINAL   LAW  AFTER  REVOLUTION   OF    1 688. 

Chap.  XI.  public  imagination,  that  a  change  of  sentiment  took  place 
-which  from  that  time  effectually  prevented  the  scandals  of 
the  seventeenth  century  from  being  repeated.  I  have  dwelt 
at  length  upon  the  second  half  of  the  seventeenth  century 
because  it  was  from  its  troubles  and  scandals  that  a  better 
system  arose,  which  has  been  by  degrees  improved  into  the 
one  which  is  now  administered  amongst  us. 

v.— 1688— 1760. 

The  administration  of  criminal  justice,  after  the  Kevolution, 
passed  into  quite  a  new  phase.  I  should  doubt  whether 
much  difference  was  made  in  the  common  course  of  justice, 
at  the  assizes  and  sessions,  till  very  recent  times ;  but  from 
the  Eevolution  to  our  own  day  political  parties  have  been 
recognised  parts  of  the  body  politic,  and  political  differences 
have  been  treated  as  matters  on  which  contending  parties  can 
differ  without  carrying  their  disputes  to  the  deadly  extremity  of 
prosecutions  for  treason.  There  have  been  plenty  of  political 
trials  since  the  Revolution,  but  from  a  variety  of  causes  they 
have  been  conducted  in  most  cases  fairly,  in  some  instances 
more  or  less  unfairly;  but  never  scandalously.  The  legislative 
result  of  the  scandals  of  the  seventeenth  century  upon 
criminal  procedure  was  slight.  The  most  important  was  the 
enactment  that  the  judges  should  hold  office,  not  at  the 
pleasure  of  the  Crown,  but  during  good  behaviour.  This, 
deeply  affected  the  whole  administration  of  justice.  The 
changes  in  procedure  were  less  important;  and  applied  en- 
tirely to  trials  for  high  treason.  As  to  them  it  was  enacted, 
^in  1695,  that  persons  indicted  for  high  treason  or  misprision 
of  treason  should  have  a  copy  of  the  indictment  five  (after- 
wards extended  to  ten)  days  before  trial,  and  be  allowed  to 
have  counsel  and  witnesses  upon  oath ;  and  that  the  treason 
should  be  proved  by  two  witnesses,  either  both  to  one  overt 
act,  or  each  to  one  of  two  overt  acts  of  the  same  kind  of 
treason.  ^  In  1708  the  prisoner  was  also  allowed  to  have  a 
list  of  the  witnesses  and  of  the  jury  ten  days  before  his  trial. 
^  In  1702  it  was  enacted  that  in  cases  of  treason  and  felony 

1  7  &  8  ■Will.  3,  ^.3.         2  7  Anne,  o.  27,  s.  U.  ^  1  Anne,  st.  2,  c.  9. 


TRIALS   IN   FIRST   HALF   OF    iStH   CENTURY.  417 

the  prisoner's  witnesses  should  be  sworn,  as  well  as  the  wit-  Chap.  x:. 
nesses  for  the  Crown.  These  were,  the,  only  legislative  changes 
which  the  scandals  of  the  trials  in  the  days  of  the  later 
Stuarts  produced ;  and  nothing  can  set  in  a  clearer  light  the 
slightness  of  the  manner  in  which  the  public  attention  was 
then,  or  indeed  till  a  far  later  time,  directed  to  the  defects  of 
the  criminal  law. 

Many  of  the  trials  which  took  place  in  the  reigns  of 
William  III.,  Anne,  George  I.,  and  George  II.  are  deeply 
interesting  on  various  accounts,  and  especially  on  account  of 
the  strong  light  which  they  throw,  not  only  on  the  history, 
but  still  more  on  the  manners  of  the  time  ;  but  in  a  legal 
point  of  view  they  call  for  little  remark.  As  time  passes, 
the  differences  between  our  own  days  and  those  of  the 
seventeenth  century  gradually  pass  away.  From  the  first 
there  is  a  complete  absence  of  fierceness  and  brutality.  At 
first  there  are  '  a  few  instances  in  which,  prisoners  are  ques- 
tioned. For  a  considerable  time  the  witnesses  are  allowed  to 
tell  their  own  story  at  length  in  their  own  way,  and  the 
restriction  as  to  not  swearing  the  prisoner's  witnesses  is  kept 
up  till  the  passing  of  the  statute  already  referred  to.  I  am 
not  sure  that  the  most  striking  feature  in  the  political  trials 
of  the  first  part  of  the  eighteenth  century  is  not  to  be  found 
in  the  fact  that  the  reforms  about  giving  prisoners  indicted  for 
treason  a  copy  of  the  indictment,  lists  of  jurors  and  witnesses, 
and  the  right  to  be  defended  by  counsel,  made  in  practice 
so  very  little  difference.  The  truth  is,  that  after  the  Revolu- 
tion few,  if  any,  prisoners  were  tried  for  high  treason  except 
people  clearly  proved  to  have  committed  what  was  held  to 
be  treason ;  and  I  do  not  think  that  counsel  had  learnt  the 
art  of  defending  prisoners  zealously  or  impressively.  For 
instance,  a  very  poor  defence  was  made  in  the  famous  cases 
of  2  Dammaree  and  others,  who,  for  having  taken  part  in  a 
riot  designed  to  pull  down  meeting-houses,  were  convicted 
of  high  treason  by  levying  of  war,  though  both  the  facts 
and  the  law  were  of  such  a  nature  as  to  give  an  opportunity 
for  a  great  effort. 

'  See  e.g.  the  trial  of  Harrison  for  the  murder  of  Dr.  Clench,  in  wMoh  the 
prisoner  was  questioned  at  some  length  by  Holt,  12  St.  Tr.  859. 
2  15  Ih.  .'522—614. 

VOL.   L  E   E 


41 8  TRIALS   ILLUSTRATIVE   OF   MANNERS. 

HAP.  XI.  The  private  trials  which  took  place  during  this  period  were 
of  extraordinary  interest,  find  set  the  manners  of  the  time 
before  the  reader  with  an  authenticity  and  life  which,  in 
my  opinion,  is  more  curious  and  entertaining  than  any 
romance  ever  written.  To  refer  to  a  very  few  instances  : 
the  ^  trials  for  piracy,  common  down  to  the  reign  of  George 
II.,  bring  to  light  a  chapter  of  history  rapidly  passing  into 
oblivion ;  the  trial  of  ^  Hathaway  as  a,  cheat  and  impostor 
marks  the  point  at  which  witchcraft  was  coming  to  be  re- 
cognised in  its  true  light ;  ^  the  trial  of  Beau  Fielding  for 
bigamy  is  a  more  grotesque  specimen  of  the  manners  of  the 
contemporaries  of  Swift  and  Addison  and  Steele  than  can  be 
found  in  any  of  their  writings ;  the  *  two  trials  of  Lord 
Mohun  for  murderous  duels,  if  indeed  the  first  was  not  rather 
a  premeditated  assassination,  illustrate  another  side  of  the 
life  of  the  times.  ^  A  whole  series  of  prosecutions  of  the 
officers  of  the  Fleet  Prison  for  the  murder  of  prisoners  by 
barbarous  ill-usage  throws  light  upon  another  dark  side  of 
the'  administration  of  justice  in  the  eighteenth  century. 
Some  of  the  trials  again  are,  to  me  at  least,  much  more 
impressive  than  poetry  or  fiction;  for  instance,  the  ^ trial 
of  Mary  Blandy  at  Oxford,  in  1752,  for  poisoning  her  father, 
and  the  ^  trial  of  a  gang  of  smugglers  at  Chichester,  in  1749, 
for  the  murder  of  certain  revenue  officers.  In  a  legal  point 
of  view  little  is  to  be  said  of  these  proceedings.  They  were 
all  conducted  fairly  enough,  and  in  a  manner  not  essentially 
different  from  that  in  which  such  trials  would  be  conducted 
at  present.  One  or  two  general  observations,  however,  arise 
upon  the  subject. 

Hardly  a  trial  of  importance  before  the  Revolution  is 
reported  in  which  the  Government  is  not  interested  directly 
or  indirectly.     Thus  even  in  the  case  (5f  Count  Coningsmark, 

1  Major  Stede,  15  SI.  Tr.  1231  ;  Dawson,  13  lb.  451  ;  Green,  14  Ih.  1199  ; 
Captain  Kidd  and  others,  lb.  147  ;  Captain  Quelcli  and  others,  lb.  1067. 

'^    lb.  639.  8  lb.  1327. 

<!  In  1694  (12  lb.  949)  and  in  1699  (13  lb.  1033).  This  ruffian  was  killed  in 
a  duel  with  the  Dulce  of  Haruilton  in  1712,  as  the  readers  of  Swift's  Journal 
and  Mr.  Thaclteray's  Esmnd  will  remember. 

^  See  the  trials  of  Huggins,  Baiubridge,  and  Aston,  in  17  St.  Tr, 
298—626. 

8  IS  lb.  1118.  7  Jackson  and  others,  lb.  1070. 


TEIALS   MANAGED  BY  PRIVATE  PERSONS.  419 

whose  crime  had  in  itself  no  political  importance,  Charles  II.   Chap.  XI. 

let   Eeresby,   the   committing   magistrate,  see  that  he  was 

favourable  to  the  prisoner,  and  thus  undoubtedly  exercised 

a  decisive  influence  upon  the  behaviour  of  the  judges  at 

.the   trial.     But   all  through  the   period  between  1688  and 

1760   a  feature  presents  itself  in  criminal  trials  which   I 

believe  to  this  day  to  be  absolutely  peculiar  to  this  country 

and  to  countries  which  have  sprung  from  it,  and  which  has 

given  its  special  colour  and  character  to  our  whole  method 

of  procedure.      In   all  other   countries    the    discovery  and 

punishment   of    crime   has   been   treated   as   pre-eminently 

the    affair   of  the    Government,    and  has   in    all   its   stages 

been    under    the    management    of    representatives    of    the 

Government.      In  England  it   has  been  left  principally  to 

individuals  who  considered  themselves  to  have  been  wronged, 

the  judge's  duty  being  to  see  fair  play  between  the  prisoner 

and  the  prosecutor,  even  if  the  prosecutor  happened  to  be 

the  Crown.     In  my  account  of  the  growth  of  the   system  of 

criminal  procedure  I  have  given  some   of  the  reasons  which 

account  for  this  state  of  things,  but  I  have  little  doubt  that 

the  scandals  of  the  State  •  trials  before  the  Eevolution,  and 

the  change  in  the  position  of  the  judges  which  was  one  of 

the  consequences,  were  the  principal  historical  causes  of  its 

prevailing. 

A  large  proportion  of  the  trials  to  which  I  have  already 
referred  might  be  cited  as  illustrations  of  this.  I  will  men- 
tion by  way  of  illustration  some  of  the  circumstances  of  two 
which  are  on  other  grounds  very  remarkable. 

The  first  to  be  mentioned  is  the  '  trial  of  Spencer  Cowper 
for  the  murder  of  Sarah  Stout.  Cowper  was  a  man  of  rank 
and  distinction.  His  brother,  the  first  Earl  Cowper,  who  was 
Chancellor  in  the  reign  of  Queen  Anne,  was  at  the  time  of 
the  trial  member  for  Hertford,  and  his  family  were  then, 
as  now,  one  of  the  first  in  the  county  of  Hertford.  Spencer 
Cowper  himself  was  made  a  judge  in  1727,  and  at  the  time 
of  his  trial  was  a  barrister  on  the  home  circuit.  Sarah  Stout 
was  an  unmarried  Quakeress  of  twenty-six,  the  daughter  of 
a  wealthy  father,  who  had  died,  leaving  a  widow,  on  whom, 
^  13  St.  Tr.  1105  ;  and  see  Lord  CaTupbell's  Life  of  Lord  Cowper. 

E  E   2 


420  SPENCER   COWPER'S   CASE. 

Chap.  XI.  however,  the  daughter  was  not  dependent.  She  was  intimate 
with  both  Spencer  Cowper  and  his  brother  and  their  wives, 
who  seem  to  have  cultivated  the  society  of  the  Stouts  for 
electioneering  purposes.  The  two  Cowpers  were  both  on  the 
circuit,  and  Spencer  Cowper  at  one  time  lodged  with  the  Stouts. 
On  the  spring  circuit  of  1699  he  intended  to  occupy  lodgings 
which  his  brother  had  taken  and  would  have  to  pay  for,  but 
having  dined  at  the  Stouts'  was  pressed  by  Miss  Stout  to  sleep 
there,  which  he  agreed  to  do.  He  afterwards  supped  there, 
and  remained  alone  with  her  till  near  eleven.  Miss  Stout 
called  in  the  servant,  and  in  Cowper's  presence  ordered  her 
to  warm  his  bed,  which  she  did.  Whilst  doing  so  she  heard 
the  house-door  shut,  and  coming  down  found  both  Cowper  and 
Miss  Stout  absent,  and  saw  neither  of  them  again  though  she 
sat  up  all  night.  Cowper  soon  afterwards,  namely,  at  about 
eleven,  called,  according  to  several  witnesses,  at  an  inn  about 
a  quarter  of  a  mile  from  the  Stouts',  and  returned  to  his  own 
lodgings  a  little  after.  Miss  Stout  was  never  seen  alive  again, 
but  early  next  morning  her  body  was  found  in  a  mill-stream 
entangled  in  some  stakes.  There  was  much  evidence  as  to  the 
exact  position  in  which  the  body  was  found.  All  of  it,  to 
say  the  very  least,  is  quite  consistent  with  her  having  been 
washed  down  the  stream  for  some  distance  and  having  been 
pressed  slightly  upwards  by  the  force  of  the  stream  against 
the  slope  of  the  stakes.  An'  inquest  was  held,  and  the  jury 
returned  a  verdict  that  she  had  drowned  herself  whilst 
insane.  It  was  proved  that  she  had  been  in  a  melancholy 
state  of  mind. 

Various  rumours  to  the  disadvantage  of  her  character 
having  got  abroad,  and  the  Quakers  being  dreadfully  scan- 
dalised at  the  notion  that  one  of  their  community  should 
commit  suicide  under  such  circumstances,  Cowper  was  in- 
dicted for  murder,  and  tried  at  the  following  Hertford  assizes. 
The  case  is  extremely  curious,  both  as  supplying  nearly  the 
earliest  instance  of  a  trial  depending  largely  on  the  evidence 
of  experts,  and  as  an  early  instance  of  the  extent  to  which 
criminal  trials  in  England  are  private  litigations.  The 
neighbourhood  was  divided  into  parties.  The  Stouts  col- 
lected a  body  of  doctors  to   establish  the   proposition  thus 


SPENCER  COWPEE's   CASE.  42  I 

propounded  by  the  counsel  for  the  Crown:— "It  is  con-  Chap.  XI. 
"  trary  to  nature  that  any  persons  that  drown  themselves 
"  should  float  upon  the  water.  "We  have  sufficient  evidence 
"  that  it  is  a  thing  that  never  was :  if  persons  come  alive 
"  into  the  water,  then  they  sink  ;  if  dead,  then  they  swim." 
There  were  also  witnesses  to  prove  the  proposition  that  water 
must  be  found  in  the  stomach  of  a  person  who  died  of  drown- 
ing, and  that  its  absence  was  inconsistent  with  death  so  caused. 
Miss  Stout,  it  was  said,  floated,  and  her  stomach  contained 
no  water.  On  these  grounds,  and  indeed  on  these  grounds 
only,  it  was  asserted  that  she  was  murdered,  and  as  Cowper 
was  last  seen  with  her,  it  was  inferred  that  he  must  have 
murdered  her.  In  our  days  such  a  case  would  not  be 
allowed  to  go  to  the  jury;  but  in  1699  it  was  pressed  with 
the  utmost  vehemence  and  pertinacity,  not  only  against 
Cowper,  but  against  three  other  persons  as  to  whom  there  was 
no  evidence  whatever,  except  that  they  were  at  an  inn  at 
Hertford  that  night,  and  were  said  to  have  had  some  conver- 
sation about  Miss  Stout  which  might  be  regarded  as  sus- 
picious. Cowper  defended  himself  with  great  tact  and 
vigour.  He  contradicted  the  evidence  of  the  experts  in  a 
way  which  still  shows  any  one  who  reads  the  case  that 
he  was  fighting  with  a  perfectly  idle  and  ignorant  super- 
stition. He  also  contradicted  the  evidence  as  to  the  position 
of  the  body  when  found.  He  also  gave  some,  though  I 
think  not  strong,  evidence  of  an  alibi ;  and  above  all  he 
produced  letters  from  Miss  Stout  to  himself  which  seemed  to 
show  that  she  had  fallen  passionately  in  love  with  him,  and 
he  declared  that  when  he  refused  her  advances  she  rushed  out, 
and,  as  he  supposed,  drowned  herself  He  called  many  wit- 
nesses to  show  the  state  of  naind  in  which  she  was  at 
the  time. 

The  judge.  Baron  Hatiell,  behaved  with  a  languid  indif- 
ference which  even  now  raises  a  feeling  of  contempt.  He 
continually  grumbled  at  the  length  of  the  trial.  ■•  "  Do  not 
"  flourish  too  much,  Mr.  Cowper."  "  Mr.  Cowper,  do  you 
"  mean  to  spend  so  much  time  with  every  witness?"     He 

1  13  St.  Tr.  1151. 


42  2  SPENCER   COWPER'S   CASE. 

Chap.  XI.  ^  ingenuously  confessed  that  he  could  make  nothing  of  the 
medical  evidence  (which  was  quite  easy  if  he  had  only  given 
his  mind  to  it),  and  he  modestly  concluded  his  summing  up 
thus : — "  I  am  sensible  1  have  omitted  many  things  ;  but 
"  I  am  a  little  faint,  and  cannot  repeat  any  more  of  the 
"  evidence." 

The  prisoners  were  all  acquitted,  t)ut  the  matter  did  not 
stop  there.  An  appeal  was  brought,  but  it  went  off  in  a 
wrangle  too  technical  to  be  worth  noticing.  The  case 
excited  great  and  widespread  interest,  and  was  the  occasion 
of  numerous  pamphlets.  It  would  be  difficult  to  find  a 
more  remarkable  specimen  of  the  way  in  which  a  trial  was 
then,  and  may  be  still,  a  battle  between  private  persons, 
the  one  seeking  with  passionate  earnestness  the  other's  life, 
and  the  other  as  desperately  defending  it ;  the  attitude  of  the 
representative  of  the  pubhc  being  one  of  dignified  indiffer- 
ence, slightly  tempered  in  this  particular  case  by  impatience 
and  fatigue.  On  this  last  point  I  may  observe  that  the  rule 
which  prevailed  then  and  long  afterwards  of  finishing  all 
criminal  trials  in  one  day  must  often  have  produced  cruel 
injustice.  Many  of  the  cases  I  have  referred  to  were  tried 
in  a  superficial,  perfunctory  way,  and  many  of  the  judges 
played  their  parts  little  better  than  Baron  Hatsell.  Few 
judges  are  able  to  do  justice  to  a  complicated  case  after  a 
sitting  of  much  more  than  eight  hours,  and  it  is  still  more 
unusual  for  jurymen  (quite  unaccustomed  to  sustained  atten- 
tion, which  involves  a  greater  physical  effort  than  those 
who  have  not  tried  it  might  suppose)  to  be  able  to  attend  to 
what  is  said,  and  to  deliberate  on  it  to  any  purpose,  after  ten 
hours. 

Many  other  instances  of  the  peculiarity  of  English  criminal 
law,  to  which  I  am  referring,  might  be  given  but  I  will  con- 
fine myself  to  one  which  is  remarkable,  amongst  other  reasons, 
because   it   has  some   resemblance   to   the   famous  case  of 

^  "  You  have  heard  also  what  the  doctors  and  surgeons  said  on  the  one  side 
"  and  the  other  concerning  the  swimming  and  sinking  of  dead  hodies  in  the 
' '  water  ;  but  I  can  find  no  certainty  in  it,  and  I  leave  it  to  your  consideration. 
"  The  doctors  and  surgeons  have  talked  a  great  deal  to  this  purpose,  and 
"  of  the  water  going  into  the  lungs  or  the  thorax  ;  but,  up  less  you  have  more 
"  skill  in  anatomy  than  I,  you  would  not  be  much  edified  by  it." — 
13  SI.  Tr.  1188—1189. 


TRIAL   OF   ELIZABETH   CANNING.  423 

Orton,  Damely  the  ^  trial  of  Elizabeth  Canning  for  perjurj',  Chap.  XL 
in  1754. 

In  1753  Canning  charged  two  women,  Mary  Squires  and 
Susannah  Wells,  with  having  rabhed  her  of  her  stays,  and 
imprisoned  her  for  a  month  in  a  house  at  Enfield  Wash,  to 
which  house  she  was,  according  to  her  statement,  taken  by 
John  Squires,  the  son  of  Mary,  and  another  person  unknown, 
the  object  being  to  induce  her  to  become  a  prostitute.  She 
escaped,  she  said,  on  the  29th  January,  and  on  the  31st  went 
with  a  warrant  to  Enfield,  where  she  found  the  prisoner  and 
gave  her  in  custody.  In  this  story  Canning  was  corroborated  by 
one  Virtue  Hall,  who  said  she  was  present  on  the  occasion  of 
the  robbery,  and  saw  John  Squires  bring  Elizabeth  Canning  to 
his  mother's  house.  Witnesses  were  called  for  Squires  to  prove 
that  at  the  time  in  question  she  and  her  son  John  were  at 
Abbotsbury,  in  Dorsetshire.  The  prisoners  were  convicted,  and 
both  were  sentenced  to  death ;  but  Virtue  Hall  recanted  her 
evidence,  and  suspicion  being  aroused  on  these  grounds  as  to 
the  propriety  of  the  verdict,  Canning  was  prosecuted  for 
perjury.  Her  trial  excited  the  same  sort  of  interest  as  that 
of  Orton.  Parties  of  Canningites  and  anti-Canningites  were 
formed.  The  trial  lasted  seven  days,  which  at  that  time  was 
something  unheard  of.  Numbers  of  witnesses  were  called, 
who  traced  the  movements  of  Squires  and  the  party  of  gipsies 
to  which  she  belonged  from  place  to  place  during  the  whole 
of  the  important  period,  giving  vivid  descriptions  of  every 
kind  of  country  scene  at  which  they  had  been  present  on  their 
wanderings.  They  were  traced  on  their  travels  through 
January,  1753,  from  South  Parrot,  in  Dorsetshire,  to  Abbots- 
bury,  Dorchester,  Basingstoke,  Bagshot,  Brentford,  and  Enfield, 
which  they  did  not  reach  till  the  24th  January.  There  they 
lodged  with  the  woman  Wells,  and  evidence  was  given  that 
Wells's  house  and  furniture  were  quite  unlike  the  place  in 
which  Canning  at  first  said  she  had  been  confined,  though  she 
pretended  to  identify  them  when  it  became  necessary  for  her  to 
fix  upon  some  place  as  the  scene  of  her  alleged  imprisonment. 

^  19  St.  Tr.  252.  Fielding  acted  as  committing  magistrate  in  the  case  of 
Squires  and  Wells.  He  also  advised  upon  the  case  as  counsel— a  strange 
mixture  of  functions  according  to  modern  ideas. 


424  CROSS-EXAMINATION   BY   COUNSEL. 

Chap.  XI.  Such,  shortly,  were  the  leading  points  in  th^  case  for  the 
prosecution.  They  are  stated  with  admirable  skill  and 
clearness  in  the  opening  of  Serjeant  Davy,  followed  by  Mr. 
Morton.  The  defence  has  almost  greater  interest.  It  de- 
serves to  be  read  and  studied  by  all  who  care  for  questions  of 
evidence ;  but  I  could  not  describe  it  without  entering  into 
details  too  minute  to  be  stated  here.  Canning  was  convicted, 
and  transported  for  seven  years.  The  case  gave  rise  to  a 
great  number  of  pamphlets,  and  is  remarkable  not  only  for 
the  reasons  I  have  already  given,  but  because  it  is  perhaps 
the  first  specimen  to  be  found  of  those  elaborately  conducted 
criminal  trials  in  which  no  time  or  expense  is  spared  on  either 
side,  and  in  which  all  the  characteristics  of  English  criminal 
law  are  seen  at  their  best. 

From  the  middle  of  the  eighteenth  century  to  our  own 
time  there  has  been  but  little  change  in  the  character  of 
criminal  trials,  and  it  is  unnecessary  to  give  further  illustra- 
tions of  them.  The  most  remarkable  change  introduced  into 
the  practice  of  the  courts  was  the  process  by  \yhich  the  old 
rule  which  deprived  prisoners  of  the  assistance  01  counsel  in 
trials  for  felony  was  gradually  relaxed.  A  practice  sprung  up, 
the  growth  of  which  cannot  now  be  traced,  by  which  counsel 
were  allowed  to  do  everything  for  prisoners  accused  of  felony 
except  addressing  the  jury  for  them.  In  the  remarkable  case 
of  '  William  Barnard,  tried  in  1758,  for  sending  a  threatening 
letter  to  the  Duke  of  Marlborough,  his  counsel  seem  to  have 
cross-examined  all  the  witnesses  fully,  in  such  a  way,  too,  at 
times,  as  to  be  nearly  equivalent  to  speaking  for  the  prisoner, 
"  a.g. :  "  Q.  It  has  been  said  he  went  away  with  a  smile.  Pray, 
"  my  Lord  Duke,  might  not  that  smile  express  the  conscious- 
"  ness  of  his  innocence  as  well- as  anything  else?  A.  I  shall 
"  leave  that  to  the  Great  Judge." 

On  the  other  hand,  at  the  trial  of  Lord  Ferrers  two  years 
afterwards,  the  prisoner  was  obliged  to  cross-examine  the 
witnesses  without  the  aid  of  counsel  and,  what  seems  even 
harder,  to  examine  for  himself  witnesses  called  to  prove  the 
defence  of  insanity  which  he  set  up. 

Since  the  middle  of  the  eighteenth  century  proceedings  of 

1  19  St.  Tr.  815.  2  lb.  839. 


SCMMAEY  OF  HISTORY.  425 

the  highest  importance,  and  involving  momentous  changes  in  Chap.  xi. 
the  substantive  criminal  law,  have  been  effected  partly  by 
legislation,  partly,  though  to  a  much  smaller  extent,  by  judicial 
decisions.  Of  these  I  shall  speak  in  my  chapters  on  the  dif- 
ferent branches  of  the  substantive  law  ;  but  I  do  not  think  that 
the  actual  administration  of  justice,  or  the  course  of  trials  has 
altered  much  since  the  beginniug  of  the  reign  of  George  III. 
Its  general  character  has  no  doubt  been  affected  to  a  consider- 
able extent  by  the  changes  made  in  the  law  itself,  by  the 
course  of  thought  on  legal  and  political,  religious  and  moral 
subjects,  and  by  many  other  influences,  but  it  can  hardly  be 
said  to  have  had  any  history  of  its  own,  and  apart  from  its 
connection  with  the  current  events  of  the  time.  The  only 
change  which  has  made  any  great  difference  between  the  trials 
of  our  own  days  and  those  of  120  years  ago  was  made  by  ^  the 
Act  which  allowed  prisoners  accused  of  felony  to  make  their  full 
defence  by  counsel ;  and  this,  after  all,  has  only  put  trials  for 
felonies,  such  as  robbery  or  burglary,  on  the  same  footing 
as  trials  for  perjury,  cheating,  and  other  misdemeanours. 
Indeed,  if  we  have  regard  to  the  powers  of  cross-examination 
which  were  conceded  to  counsel  in  the  course  of  the  eighteenth 
century,  the  change  was  less  important  than  it  may  at  first 
sight  seem  to  have  been. 

The  result  of  the  history  of  the  administration  of  criminal 
justice  in  England  which  I  have  thus  sketched — for  it  is  a 
slight  though  not,  I  hope,  an  incorrect  sketch—  may  be  thus 
shortly  summarized : — 

Criminal  justice  was  originally  a  rude  substitute  for,  or 
limitation  upon,  private  war,  the  question  of  guilt  or  inno- 
cence, so  far  as  it  was  entertained  at  all,  being  decided  by 
the  power  of  the  suspected  person  to  produce  compurgators 
or  by  his  good  fortune  in  facing  an  ordeal.  The  introduction 
of  trial  by  combat,  though  a  little  less  irrational,  was  in 
principle  a  relapse  tovvards  private  war,  but  it  was  gradually 
restricted  and  practically  superseded  many  centuries  before 
it  was  formally  abolished. 

Trial  by  jury  originated  in  the  adaptation  to  the  purpose 
1  6  &  7  Will.  4,  c.  114,  s.  1. 


426  SUMMARY   OF   HISTOEY. 

Chap.  XI.  of  the  administration  of  justice  of  tlie  process  commonly  in  use 
in  the  -eleventh  and  twelfth  centuries  for  obtaining  informa- 
tion as  to  matters  of  fact,  namely,  collecting  an  inquest  or 
body  of  persons  supposed  to  be  acquainted  with  the  subject 
and  taking  their  sworn  statement  about  it.  The  members  of 
the  inquest  were  originally  witnesses,  and,  even  if  they 
derived  their  knowledge  from  other  witnesses,  they,  and  not 
their  informants,  were  responsible  for  the  truth  of  their 
verdict.  By  slow  degrees  they  acquired  the  character  of 
judges  of  fact  informed  by  witnesses.  This  process  lasted 
from  the  first  origin  of  juries  in  the  twelfth  or  thirteenth  cen- 
turies down  to  the  sixteenth  century,  when  we  have  the  first 
fairly  trustworthy  records  of  actual  trials. 

Side  by  side  with  trial  by  jury  during  this  period,  a 
system  was  developing  itself  in  the  Star  Chamber,  and 
similar  courts,  of  a  trial  by  written  pleadings,  bills,  answers, 
interrogatories,  and  affidavits,  like  those  which  were  after- 
wards in  use  in  the  Court  of  Chancery  in  civil  cases.  It 
exercised  a  strong  influence  over  trial  by  jury,  and  its  effect 
can  be  traced  in  all  the  criminal  proceedings  which  took 
place  under  the  Tudors,  James  I.  and  Charles  I.  The 
administration  of  criminal  justice  at  this  time  was  also 
affected  to  a  considerable  extent  by  the  civil  law  trial  by 
witnesses,  though,  on  the  one  hand,  it  never  thoroughly 
adopted  torture,  which  was  practically  an  essential  part  of 
that  system,  nor  did  it,  on  the  other,  admit,  except  in  the  one 
case  of  treason,  the  necessity  for  two  witnesses,  which  rendered 
torture  necessary  in  countries  where  it  prevailed. 

The  Civil  Wars  broke  down  this  system,  and  gave  to  trial 
by  jury  an  undisputed  supremacy,  which  has  now  lasted  for 
more  than  two  centuries,  in  the  administration  of  criminal 
justice ;  but  the  experience  of  the  reigns  of  Charles  II.  and 
James  II.  showed,  first,  that  juries  might  be  quite  as  unjust 
and  tyrannical  as  the  Star  Chamber ;  next,  that  they  were 
equally  likely  to  be  unjust  on  any  side  in  politics  ;  and,  lastly, 
that  the  true  theory  of  judicial  evidence  was  at  that  time  not 
understood,  and  that,  so  far  as  it  was  understood,  it  had  little 
influence  upon  verdicts. 

Lastly,  after  the  Revolution,  a  decisive  victory  having  been 


TRIALS   SINCE   THE   REVOLUTION.  42/ 

won  by  one  of  the  great  parties  of  the  State,  the  adminis-  Chai>.  xi. 
tration  of  criminal  justice  was  set  upon  a  firm  and  dignified 
basis,  and  so  became  decorous  and  humane ;  and  as  it  was 
mainly  left  in  the  hands  of  private  persons,  between  whom 
the  judges  were  really  and  substantially  indifferent,  the 
questions  which  were  involved  came  to  be  fully  and  fairly 
investigated,  each  party  to  the  contest  doing  the  best  he 
could  to  establish  his  own  view  of  the  case  in  which  he  was 
interested.  The  rapid  growth  of  physical  science,  and  in- 
deed of  every  branch  of  knowledge,  which  has  been  one  great 
characteristic  of  the  history  of  the  last  two  centuries,  natu- 
rally influenced  the  administration  of  justice  as  well  as  other 
things,  and  the  final  result  of  the  long  process  which  I  have 
been  trying  to  describe  seems  to  be  that  in  criminal  trials 
questions  of  fact  are  investigated  as  nearly  in  the  same  spirit 
as  other  matters  of  fact  as  the  differences  inherent  in  the 
nature  of  .the  processes  will  admit.  It  would  be  interesting 
to  trace  the  steps  by  which  this  came  about,  but  such  an 
inquiry  belongs  rather  to  the  history  of  the  rules  of  evidence 
than  to  the  history  of  the  administration  of  criminal  justice. 
The  last-mentioned  history  ends  at  the  point  at  which  the 
present  forms  are  fully  established,  and  at  which  the  process 
carried  on  under  them  begins  to  develop  itself,  in  accordance 
with  the  general  intellectual  movement  of  the  age. 


428  MODEEX   CRIMINAL  TRIALS. 


CHAPTER  XII. 

'  DESCRIPTION   OF   MODERN   CRIMINAL   TRIALS. 

CiT.  XII.  I  PASS  now  to  the  consideration  of  modern  criminal  trials, 
by  which  expression  I  understand  criminal  trials  as  they  now 
are,  and  as  they  have  been  for  the  last  120  years ;  for  although 
some  variations  in  the  practice  of  the  courts  have  taken 
place  during  that  period,  the  resemblance  between  the  pro- 
ceedings of  our  own  time  and  those  of  1760  is  go  strong, 
that  in  reading  the  reports  of  the  proceedings  relating  to 
Wilkes,  Lord  George  Gordon,  Tooke,  Hardy,  or  Thelwall,  a 
lawyer  feels  himself  quite  as  much  at  home  as  when  he 
reads  the  reports  of  contemporary  trials  in  the  news- 
papers of  the  day.  I  propose  to  give  some  account  of 
each  of  the  most  important  of  tlie  stages  in  the  criminal 
trials  which  take  place  amongst  us  from  day  to  day.  In 
doing  so  I  rely  mainly  upon  the  acquaintance  with  them 
which  I  have  acquired  by  nearly  thirty  years'  experience  as 
a  barrister  and  as  a  judge.  During  these  thirty  years 
nearly  a  quarter  of  the  period  which  has  elapsed  since 
the  beginning  of  George  III.'s  reign,  no  change  in  the 
procedure  important  enough  to  notice  has  taken  place, 
except  the  introduction  of  the  second  speech  of  the  counsel 
for  the  prosecution,  which  I  think  of  doubtful  advantage. 

The  first  step  in  the  trial  properly  so  called  is  the  opening 
speech  of  the  counsel  for  the  Crown.  He  is  expected  to  con- 
iine  himself — except  under  very  special  and  unusual  circum- 
stances—to a  quiet  account  of  the  different  facts  to  be  proved, 
and  of  their  bearing  upon  each  other,  and  on  the  guilt  of 
the  prisoner.     This  statement  is  often  of  decisive  importance, 

'  See  Dig.  Crim.  Proc.  arts.  283-300. 


OPENING   THE   CASE   FOR  THE  CROWN.  429 

for  it  produces  the  first  impression  made  upon  the  minds  of    Ch.  XI 
the  judge  and  jury,  the  indictment  being  a  neutral,  formal 
document,   wholly  unlike    a   Continental  ade   d'accusation. 
It  is  pleasant  to   be  able  to   say  that,  as  a  rule,  subject 
only  to  rare  exceptions,  extreme  calmness  and  impartiality 
in  opening  criminal  cases  is  characteristic  of  the   English 
bar.      It   is  very  rare   to   hear   arguments  pressed  against 
prisoners  with  any  special  warmth  of  feeling  or  of  language  : 
one   reason  for  which  no  doubt   is,   that  any  counsel   who 
did    so    would    probably    defeat    his    own    object.     Apart, 
however,    from     this,     it    is    worthy    of    observation     that 
eloquence   either  in   prosecuting  or    defending  prisoners  is 
almost    unknown    and    unattempted    at    the    bar.       The 
occasion   seldom  permits   of  it,  and   the  whole  atmosphere 
of  English   courts   in   these   days   is   unfavourable  to  any- 
thing  like   ah  appeal  to   the   feelings — though,  of   course, 
in  particular  cases,  topics  of  prejudice  are  introduced.     This 
characteristic  of  English  courts  has  existed  for  a  considerable, 
time.     M.  Cottu,  who  was  sent  by  the  French  Government 
in  1822  to  inquire  into  the  administration  of  criminal  justice 
in  England,  and  who  made  an  interesting  report  on  the  sub- 
ject,  thus   describes    the   opening  speeches   of    counsel: — 
"  ^  The  plaintiff's  counsel  then  lays  before  the  jury  a  summary 
"  of  the  case,  which  is  nothing  but  a  more   detailed  and 
"  circumstantial  repetition  of  the  indictment,  guarding  him- 
"  self,    however,    from    every  sort    of  invective   against   the 
"  prisoner,    and   making    no    reflections    on    his    depravity. 
"  Facts  must  speak ;  the  counsel  is  forbidden  to  excite  feel- 
"  ings  which  must  be  called   forth  by  them  alone."     This 
description  is  as  true  now  as  it  was  sixty  years  ago.     The 
opening  speech  for  the  prosecution  is  followed  by  the  exami- 
nation of  the  witnesses,  who  are  first  examined  in  chief  by 
the    counsel   for   the    Crown,    then    cross-examined    by   the 
counsel  for  the  prisoner  if  he  is  defended  by  counsel,  or  by 
the  prisoner  himself  if  he  is  not,  and  then  re-examined  by 
the  counsel  for  the  Crown.     The  judge  and  the  jury  can  also 

^  On  the  Administration  of  Crvminal  Justice  in  England,  Ijy  M.  Cottn 
(English  translation,  1822).  The  translation  is  not  a  good  one.  I  have  not 
seen  the  original. 


43°  EXAMINATION    OF   WITNESSES. 

Cii.  XTT.  ask  such  questions  as  they  may  think  necessary.  The  object 
of  examination-in-chief  is  to  make  the  witness  tell  what  he 
knows  relevant  to  the  isssue  in  a  consecutive  manner  and 
without  "wandering  from  the  point.  The  object  of  cross- 
examination  is  twofold,  namely,  to  prove  any  facts  favourable 
to  the  prisoner  which  may  not  have  been  stated  by  the  wit- 
ness when  examined  in  chief,  and  to  bring  to  light  any 
matter  calculated  to  shake  the  weight  of  his  evidence  by 
damaging  his  character,  or  by  showing  that  he  has  made 
inconsistent  statements  on  former  occasions,  or  that  his 
opportunities  of  observation,  or  his  memory  as  to  what  passed, 
were  defective.  The  object  of  re-examination  is  to  clear  up 
any  matter  brought  out  in  cross-examination  which  admits 
of  explanation. 

The  main  rule  as  to  the  manner  in  which  the  examination 
of  a  witness  must  be  conducted  is,  that  leading  questions, 
that  is  questions  which  suggest  the  desired  answer,  must  not 
be  asked  by  the  side  which  calls  the  witness,  and  to  which 
he  is  presumed  to  be  favourable,  but  that  they  may  be 
asked  by  the  party  against  whom  he  is  called  and  to 
whom  he  is  presumed  to  be  unfavourable :  in  other  words, 
leading  -questions  may  not  be  asked  in  an  examination-in- 
chief,  or  in  a  re-examination,  bat  they  may  be  asked  in  cross- 
examination. 

This  nile,  however,  is  liable  to  be  modified  at  the  discretion 
of  the  judge  if  the  witness  appears  to  be  in  fact  unfavourable 
to  the  party  by  whom  he  is  called,  and  to  be  keeping  back 
matter  with  which  he  is  acquainted.  A.  common  instance  of 
this  is  when  a  witness  refuses  or  hesitates  to  state  at  the  trial 
what  he  stated  in  his  depositions  before  the  magistrate.  The 
great  care  bestowed  upon  the  examination  of  the  witnesses, 
and  the  importance  attached  to  such  rules  as  these,  are 
characteristic  features  in  an  English  trial ;  and  though  they 
are  sometimes  carried  to  an  apparently  pedantic  length, 
there  can  be  no  doubt  of  their  substantial  value. 

Their  proper  application  requires  experience  and  skill. 
It  is  not  easy  to  question  a  person  in  such  a  way  as  to 
draw  from  him  the  knowledge  which  he  possesses  on  a 
given  subject  in  the  form  of  a  continuous  statement  in  the 


CROSS-EXAMINATION.  43 1 

order  of  time,  the  questions  being  so  contrived  as  to  keep  Ch.  Xll. 
alive  the  attention  and  memory  of  the  witness  without  being 
open  to  the  objection  that  they  suggest  the  answer  which 
he  is  to  give.  The  power  of  doing  so  can  be  acquired  only 
by  experience  joined  with  quickness  of  observation  and 
power  of  sympathy ;  and  it  may  be  compared,  not  inappro- 
priately, to  the  management  of  a  horse's  bridle.  The  present 
method  of  examining-in-chief  must,  to  judge  from  the  State 
Trials,  be  at  least  as  old  as  the  beginning  of  the  reign  of 
George  III.  In  earlier  times,  as  I  have  already  observed, 
the  witness  was  allowed  to  tell  his  own  story,  and  I  have 
little  doubt  that  the  present  practice  was  introduced  in  order 
to  keep  witnesses  to  the  point,  and  as  a  consequence  of  the 
recognition  of  the  rule  that  all  evidence  must  be  confined 
to  the  issue  which,  like  other  rules  of  evidence,  found  its 
way  from  the  civil  into  the  criminal  courts  I  should  think 
early  in  the  eighteenth  century. 

The  examination-in-chief  is  followed  by  the  cross-examina- 
tion. Cross-examination  is  a  highly  characteristic  paxt  of 
an  English  trial,  whether  criminal  or  civil,  and  hardly  any 
of  the  contrasts  between  the  English  and  Continental  sys- 
tems strikes  an  English  lawyer  so  forcibly  as  its  absence 
in  the  Continental  system.  Its  history  may  be  collected 
from  the  particulars  given  in  the  last  chapter.  So  long  as 
prisoners  were  really  undefended  by  counsel  in  serious 
cases,  their  cross-examination  of  the  witnesses  against  them 
was  trifling  and  of  little  or  no  importance,  though  they 
did  cross-examine  to  a  greater  or  less  extent.  When  they 
were  allowed  to  have  counsel  to  cross-examine,  but  not 
to  speak  for  them,  the  cross-examination  tended  to  become 
a  speech  thrown  into  the  form  of  questions,  and  it  has  ever 
since  retained  this  character  to  a  greater  or  less  extent. 
Cross-examination  is  no  doubt  an  absolutely  indispensable 
instrument  for  the  discovery  of  truth,  but  it  is  the  part  of  the 
whole  system  which  is  most  liable  to  abuse,  and  which,  in  my 
opinion,  ought  to  be  kept  most  carefully  and  jealously  under 
control  by  the  judge  ;  but  1  do  not  think  that  the  unfavour- 
able- criticisms  often  made  upon  it  by  unprofessional  persons 
are  well  founded. 


43  2  CROSS-EXAMINATION. 

Ch.  XII.  In  discussing  the  subject  of  criminal  trials  and  the  pro- 
cedure,  as  to  evidence  and  otherwise,  to  be  observed  upon 
them,  people  are  usually  tempted  to  forget  their  real  character. 
Cool,  un excited  bystanders,  often  demand  that  a  criminal 
trial  should  be  conducted  as  quietly  as  a  scientific  inquiry, 
and  are  disgusted  if  any  course  is  allowed  to  be  taken  which 
compromises  the  interests  or  character  of  third  parties,  or 
which  leads  to  any  sort  of  unseemly  discussion.  The  truth  is 
that  litigation  of  all  sorts,  and  especially  litigation  which 
assumes  the  form  of  a  criminal  trial,  is  a  substitute  for 
private  war,  and  is,  and  must  be,  conducted  in  a  spirit  of 
hostility  which  is  often  fervent  and  even  passionate.  No  man 
will  allow  himself  to  be  deprived  of  character,  or  liberty,  or 
possibly  of  life,  without  offering  the  most  strenuous  resistance 
in  his  power,  or  without  seeking,  in  many  cases,  to  retaliate 
on  hi&  opponent  and  his  opponent's  supporters.  A  trial  of 
any  importance  is  always  more  or  less  of  a  battle,  and  one 
object  of  the  rules  of  evidence  and  procedure  is  to  keep  such 
warfare  within  reasonable  bounds,  and  to  prevent  the  com- 
batants from  inflicting  upon  each  other,  and  upon  third 
parties,  injuries,  the  inflicting  of  which  is  not  absolutely 
essential  to  the  purposes  of  the  combat.  Such  injuries,  how- 
ever, as  are  essential  to  the  object  in  view  must  be  permitted. 
"Within  its  proper  limits  the  battle  inust  be  fought  with  swords 
and  not  with  foils.  Unless  this  is  clearly  understood  it  is 
practically  impossible  to  form  a  sound  judgment  upon  the 
limits  to  be  imposed  upon  cross-examination. 

These  limits  can  hardly  be  defined  with  precision,  nor  do  I 
think  that  it  would  ever  be  practicable  to  lay  down  rules  upon 
the  subject,  which  would  not  leave  much  to  the  discretion  of 
the  judge  as  well  as  to  the  honourable  feeling  of  counsel. 
Some  limits,  however,  may  I  think  be  described  distinctly 
enough  to  answer  many  practical  purposes. 

First,  the  difference  between  cross-examinations  and  exam- 
inations-in-chief, has  reference  rather  to  the  question,  What 
facts  are  relevant?  than  to  the  question,  What  proof  must 
be  given  of  a  fact  admitted  to  be  relevant  ?  In  cross-exam- 
ination the  great  object  is  to  test  the  memory,  the  power 
of  observation,   and  the   good   faith  of  the  witness.     Many 


CROSS-EXAMINATION. 


433 


matters  are  relevant  to  the  probability  of  a  witness's  observ-  Ch.  xii. 
ing  a  fact  correctly,  and  reporting  it  accurately,  which 
are  not  relevant  to  the  occurrence  of  the  fact  itself.  It' 
may  thus  often  be  proper  to  ask  a  witness  under  cross- 
examination  whether  at  a  given  time  he  had  not  heard  or 
done  certain  things,  which  might  predispose  him  to  take  a 
prejudiced  view  of  circumstances  described,  but  which  are 
quite  irrelevant  to  the  main  facts  to  which  he  deposes. 

Suppose,  for  instance,  that  a  servant  is  charged  with  theft, 
and  that  a  fellow-servant  deposes  to  conduct  which  is  at  first 
sight  suspicious,  it  may  be  very  important  to  know  whether 
the  common  master  of  both  had  set  the  one  servant  to  watch 
the  other,  and  had  communicated  to  the  one  the  suspicions 
which  he  entertained  against  the  other.  This  would  not  be 
admissible  upon  the  examination-in-chief,  because  the  master's 
suspicion  is  not  regarded  as  relevant  to  the  guilt  of  the 
accused  servant,  but  it  may  well  be  admitted  in  cross- 
examination,  because  it  is  relevant  to  the  probable  accuracy 
of  the  witness's  observation. 

Assuming,  however,  that  the  relevancy  of  the  fact  to  be 
proved  is  not  in  question,  its  existence  must  be  proved  in 
precisely  the  same  manner  in  the  case  of  a  cross-examination 
as  in  the  case  of  an  examination-in-chief.  If,  for  instance,  it 
is  necessary  to  prove  the  contents  of  a  document,  the  docu- 
ment itself,  or  such  secondary  evidence  of  it  as  the  nature  of 
.  the  case  permits  or  requires  to  be  given,  must  be  produced, 
whether  it  is  proved  in  chief  or  upon  cross-examination. 

The  most  diflScult  point  as  to    cross-examination   is   the  ,"' 

question  how  far  a  witness  maybe  cross-examined  to  his  credit 
by  being  asked  about  transactions  irrelevant  to  the  matter  at 
issue,  except  so  far  as  they  tend  to  show  that  the  witness  is 
not  to  be  believed  upon  his  oath. 

No  doubt  such  questions  may  be  oppressive  and  odious. 
They  may  constitute  a  means  of  gratifying  personal 
malice  of  the  basest  kind,  and  of  deterring  witnesses 
from  coming  forward  to  discharge  a  duty  to  the  public. 
At  the  same  time  it  is  impossible  to  devise  any  rule  for 
restricting  the  latitude  which  at  present  exists  upon  the 
subject,  without  doing  cruel  injustice.      I  have  frequently 

VOL.    I.  F  F 


434  CROSS-EXAMINATION   TO   CREDIT. 

;h.  xii.  known  cases  in  which  evidence  of  decisive  importance  was 
procured  bj' asking  people  of  apparent  respectability  questions 
which,  when  first  put,  appeared  to  be  offensive  and  insulting 
in  the  highest  degree.  I  remember  a  case  in  which  a 
solicitor's  clerk  was  indicted  for  embezzlement.  His  defence 
was  that  his  employer  had  brought  a  false  charge  against 
him  to  conceal  (I  think)  forgery  committed  by  himself  The 
employer  seemed  so  respectable  and  the  prisoner  so  discredit- 
able that  1  the  prisoner's  counsel  returned  his  brief  rather  than 
ask  the  questions  suggested  by  his  client.  The  prisoner 
thereupon  asked  the  questions  himself,  and  in  a  few 
minutes  satisfied  every  person  in  court  that  what  he  had 
suggested  was  true.  I  have  in  the  same  way  heard  of  a 
woman,  who  seemed  perfectly  respectable,  being  compelled  to 
admit  that  she  had  hidden  in  her  servant's  box  articles  which 
she  charged  the  servant  with  stealing,  and  of  a  constable  who 
was  compelled  by  the  late  Serjeant  Ludlow  to  confess  that 
he  had  hidden  forged  bank-notes  in  the  pocket  of  a  man 
tried  for  being  in  possession  of  them.  It  is  also  to  be  re- 
membered that  cross-examination  to  credit  may  be  conducted 
in  very  different  ways.  It  is  one  thing  to  throw  an  insulting 
question  coarsely  and  roughly  in  the  face  of  a  witness.  It  is 
quite  another  thing  to  follow  up  a  point  by  questions  justified 
by  the  circximstances.  I  remember  an  occasion  when  a  most 
modest,  respectable-looking  woman  swore  to  an  alibi  on  the 
prisoner's  behalf.  She  was  cross-examined  (without  instruc- 
tions) as  follows  : — Q.  :  Are  you  sure  it  was  the  same  man  ? 
A.  :  Oh,  yes.  Q.  :  Did  you  know  him  before  ?  A. :  Yes,  I 
knew  him  before  (there  was  an  expression  in  her  eyes  as  she 
said  this  which  led  her  questioner  to  go  further).  Q. :  Did 
you  know  him  well  ?  A.  :  Yes,  well.  Q.  :  Very  well  indeed  ? 
A.  :  Yes.  Q. :  Did  you  live  in  the  same  house  ?  A. :  Yes. 
Q. :  Are  you  his  wife  ?  A. :  No.  Q. :  Do  you  live  with  him 
as  his  wife  ?     A. :  Yes. 

The  most  difficult  cases  of  all  are  those  in  which  the  impu- 
tation is  well  founded,  but  is  so  slightly  connected  with  the 
matter  in  issue  that  its  truth  ought  not  to  affect  the  credi- 
bility of  the  witness  in  reference  to  the  matter  on  which  he 
•"  The  late  Mr.  Adams,  afterwards  Attorney- General  for  Hong  Kong. 


CROSS-EXAMINATION.  435 

testifies.     The  fact  that  a  woman  had  an  illegitimate  child  at    Ch.  xir. 
eighteen,  is  hardly  a  reason  for  not  believing  her  at  forty,  when 
she  swears  that  she  locked  up  her  house  safely  when  she  went 
to  bed  at  night,  and  found  the  kitchen  window  broken  open  and 
her  husband's  boots  gone  when  she  got  up  in  the  morning. 

Cases,  however,  may  beim^agined  in  which  a  real  connection 
may  be  traced  between  acts  of  profligacy  and  a  man's  credi- 
bility on  matters  in  no  apparent  way  connected  with  them. 
Seduction  and  adultery  usually  involve  as  gross  a  breach 
of  faith  as  peijury,  and  if  a  man  claimed  credit  on  any 
subject  of  importance,  the  fact  that  he  had  been  convicted 
of  perjury  would  tend  to  discredit  him.  No  general  rule 
can  be  laid  down  in  matters  of  this  sort.  All  that  caa  be 
said  is  thab  whilst  the  power  of  cross-examining  to  a  witness's 
credit  is  ^  essential  to  the  administration  of  justice,  it  is  of 
the  highest  importance  that  both  judges  and  counsel  should 
bear  in  mind  the  abuse  to  which  it  is  liable,  and  should  do 
their  b.est  not  to  ask,  or  permit  to  be  asked,  questions  con- 
veying reproaches  upon  character,  except  in  cases  in  which 
there  is  a  reasonable  ground  to  believe  that  they  are  necessary. 

There  is  another  matter  connected  with  cross-exami' 
nation  in  which  there  is  no  room  for  doubt  as  to  the 
duty  of  counsel,  and  as  to  the  duty  incumbent  upon 
judges  to  enforce  that  duty  stringently.  The  legitimate 
object  of  cross-examination  is  to  bring  to  light  relevant 
matters  of  fact  which  would  otherwise  pass  unnoticed.  It 
is  not  unfrequently  converted  into  an  occasion  for  the  dis- 
play of  wit,  and  for  obliquely  insulting  witnesses.  It  is  not 
uncommon  to  put  a  question  in  a  form  which  is  in  itself  an 
insult,  or  to  preface  a  question  or  receive  an  answer  with  an 
insulting  observation.  This  naturally  provokes  retorts,  and 
cross-examination  so  conducted  ceases  to  fulfil  its  legitimate 
purpose,  and  becomes  a  trial  of  wit  and  presence  of  mind 
which  may  amuse  the  audience,  but  is  inconsistent  with 
the  dignity  of  a  court  of  justice,  and  unfavourable  to  the 
object   of    ascertaining    the    truth.     When    such    a    scene 

^  As  illustrations  of  such  examiQations  see  the  cross-examination  of  Lutter- 
loh  by  Bunning  in  1781  (21  St.  Tr.  746—54)  and  the  cross-examination  of 
Castles,  the  spy,  by  Sir  0.  Wetherell  in  1817  (32  St.  Tr.  284). 

F  F   2 


43^  HISTORY   OF   CROSS-EXAMINATION   TO   CREDIT. 

Ch.  XII.  takes  place  the  judge  is  the  person  principally  to  blame! 
He  has  a  right  on  all  occasions  to  exercise  the  power 
of  reproving  observations  which  are  not  questions  at  all, 
of  preventing  questions  from  being  put  in  an  improper  form, 
and  of  stopping  examinations  which  are  not  necessary  for  any 
legitimate  purpose. 

I  have  already  given  the  history  of  cross-examination  in 
general.  The  history  of  cross-examination  to  credit  is  a 
separate  matter.  As  I  have  shown  in  the  chapter  on  trials  the 
practice  of  the  court  in  the  seventeenth  century  was  to  allow 
great  latitude  in  calling  witnesses  to  discredit  witnesses  for  the 
Crown  by  showing  almost  any  sort  of  disgraceful  conduct  on 
their  part,  but  witnesses  were  not  allowed  to  be  discredited 
by  cross-examination.  By  degrees  this  practice  was  re- 
versed and  the  modern  rule  substituted  for  it.  The  rules 
upon  the  subject  are  stated  in  my  Digest  of  the  Law  of 
Evidence,  Articles  129 — 133.  The  history  of  these  rules 
is  curious.  In  the  seventeenth  century,  as  I  have  already 
shown,  evidence  defaming  a  witness  was  permitted,  but 
he  was  not  allowed  to  be  cross-examined  as  to  his  char- 
acter. By  degrees  cross-examination  as  to  character  came 
into  use,  but  evidence  defaming  a  witness's  character  was 
allowed  at  the  same  time.  The  most  modern  and  most  re- 
markable instance  of  this  which  I  can  cite  occurred  in  the 
trials  for  the  Irish  rebellion  of  1798.  ^  On  the  trial  of  the 
Sheares,  Captain  Armstrong,  the  principal  witness  against 
them,  was  accused  of  disloyalty,  of  holding  atheistical  opinions, 
and  of  cruelty  in  the  suppression  of  rebellion,  and  this  having 
been  denied  on  cross-examination  several  witnesses  were 
called  to  prove  it.  On  the  ^trials  of  Byrne,  M'Cann,  and 
Oliver  Bond,  Eeynolds  was  the  principal  witness.  In  cross- 
examination  questions  were  asked  him  suggesting  that  he 
had  poisoned  his  mother-in-law  and  committed  other  gross 
offences.     He  denied  the  imputations  made  against  him,  and 

1  27  St.  Tr.  Cross-examination  of  Armstrong,  314 — 319.  Evidence  in  con- 
tradiction, 347—358. 

2  lb.  See  Eeynolds'.s  examination  and  cross-examination  in  Byrne's  case, 
469—479 ;  and  see  the  evidence  of  Eleanor  Dwyer,  p.  499.  Most  of  the 
vritnesses  against  Eeynolds,  however,  confined  themselves  to  the  general  asser- 
tion that  he  was  not  to  be  believed  on  his  oath.  They  gave  their  reasons  on 
cross-examination.     This  is  the  modern  practice. 


EULES  OF   EVIDENCE  IN   CRIMINAL   CASES.  437 

witnesses  were  called  to  prove  some  of  them.  This  is  no  ch.  Xll. 
longer  allowed  on  account  of  its  obvious  inconvenience  and 
unfairness.  It  is  inconvenient  because  a  trial  so  conducted 
has  a  tendency  to  swell  to  unmanageable  dimensions.  It  is 
unfair  because  it  puts  the  witness  on  his  trial  for  every  act 
of  his  life  without  notice.  The  modern  rule  accordingly  is 
that  when  defamatory  questions  are  asked  the  witness's 
answer  must  be  taken,  though  he  may  be  indicted  for  per- 
jury if  he  swears  falsely.  He  may,  however,  be  impeached 
by  witnesses  who  will  swear  in  general  terms  that  he  is  not 
worthy  of  credit  on  his  oath,  and  if  such  witnesses  are  asked 
why  they  say  so  they  can  answer  that  they  know  the  imputa- 
tation  which  he  denied  on  oath  to  be  true  in  fact.  Such 
evidence  is  now  very  rarely  given.  I  can  remember  only  one 
case  in  which  it  decided  the  issue  of  a  trial.  That  case 
occurred  very  lately  in  a  trial  before  me  for  rape.  The 
prosecutrix  in  that  case  was  shown  in  the  manner  just 
described  to  be  a  person  on  whom  it  was  impossible  to  rely, 
and  the  jury  stopped  the  case. 

^The  rules  as  to  the  relevancy  of  facts  and  as  to  the 
proof  of  relevant  facts,  are,  speaking  generally,  the  same  in 
relation  to  criminal  as  in  relation  to  civil  proceedings,  for 
the  manner  in  whi'ch  a  fact  is  to  be  proved  has  no  necessary 
connection  with  the  use  to  which  it  is  to  be  applied  when  it 
has  been  proved.  If  it  is  necessary  to  show  that  a  man  is 
dead  the  fact  must  be  proved  in  the  same  way,  whether  it  is 
proved  in  a  criminal  trial  for  murder  or  on  the  trial  of  a 
civil  action  for  the  recovery  of  an  estate.  Moreover  the 
principles  which  determine  whether  or  no  a  given  fact  is 
either  in  issue  or  is  or  is  not  relevant  to  the  issue,  are  the  same 
whatever  may  be  the  nature  of  the  issue.  Some  of  the  more 
detailed  rules  of  evidence,  however,  apply  exclusively,  and 
others  most  frequently  to  criminal  cases,  and  as  they  give 
much  of  its  special  character  to  an  English  criminal  trial,  I 
will  refer  to  the  most  important  of  them. 

In  the  first  place,  I  may  mention  the  general  presumption  of 
innocence  which,  though  by  no  means  confined  to  the  criminal 

1  As  to  the  rules  of  evidence  in  general  see  mj  Digest  of  the  Law  of  Evidence 
(4tli  edition,  Macmillan). 


43^  PEESUMPTION  OF  INNOCENCE — REASONABLE  DOUBT. 

Ch.  XII.  law,  pervades  the  whole  of  its  administration.  This  rule  is  thus 
expressed  in  my  *  Digest  of  the  Law  of  Evidence,  "  If  the  com- 
"  mission  of  a  crime  is  directly  in  issue  in  any  proceeding,  civil 
"  or  criminal,  it  must  be  proved  beyond  all  reasonable  doubt. 

"  The  burden  of  proving  that  any  person  has  been  guilty  of 
"  a  crime  or  wrongful  act  is  on  the  person  who'  asserts  it, 
"  whether  the  commission  of  such  act  is  or  is  not  directly  in 
"  issue  in  the  action." 

This  is  otherwise  stated  by  saying  that  the  prisoner  is 
entitled  to  the  benefit  of  every  reasonable  doubt.  The 
word  "  reasonable "  is  indefinite,  but  a  rule  is  not 
worthless  because  it  is  vague.  Its  real  meaning,  and  I 
think  its  practical  operation,  is  that  it  is  an  emphatic 
caution  against  haste  in  coming  to  a  conclusion  adverse  to  a 
IDrisoner.  It  may  be  stated  otherwise,  but  not,  I  think,  more 
definitely,  by  saying  that  before  a  man  is  convicted  of  a  crime 
every  supposition  not  in  itself  improbable  which  is  consistent 
with  his  innocence  ought  to  be  negatived.  But  I  do  not 
know  that  "  improbable  "  is  more  precise  than  "  reasonable." 
It  is  also  closely  connected  with  the  saying  that  it  is 
better  that  ten  guilty  men  should  escape  than  that  one  inno- 
cent man  should  suffer — an  observation  which  appears  to  me 
to  be  open  to  two  decisive  objections.  In  the  first  place,  it 
assumes,  in  opposition  to  the  fact,  that  modes  of  procedure 
likely  to  convict  the  guilty  are  equally  likely  to  convict 
the  innocent,  and  it  thus  resenables  a  suggestion  that  soldiers 
should  be  armed  with  bad  guns  because  it  is  better  that 
they  should  miss  ten  enemies  than  that  they  should  hit 
one  friend.  In  fact,  the  rule  which  acquits  a  guilty  man  is 
likely  to  convict  an  innocent  one.  Just  as  the  gun  which 
misses  the  object  at  which  it  is  aimed  is  likely  to  hit  an  object 
at  which  it  is  not  aimed.  In  the  second  place,  it  is  by  no 
means  true  that  under  all  circumstances  it  is  better  that  ten 
guilty  men  should  escape  than  that  one  innocent  man  should 
sjffer.  Everything  depends  on  what  the  guilty  men  have 
been  doing,  and  something  depends  on  the  way  in  which 
the  innocent  man  came  to  be  suspected.  I  think  it  probable 
that  the  length  to  which  this  sentiment  has  been  carried 
1  Article  94. 


COTTU'S   REPORT   ON   ENGLISH   PROCEDURE.  439 

in  our  criminaJ  courts  is  due  to  a  considerable  extent  to  the   Cir.  xil. 

extreme  severity  of  the  old  criminal  law,  and  even  more  to 

the  capriciousness  of  its  severity  and  the  element  of  chance 

which,  as  I  have  already  shown,  was    introduced  into  its 

administration.      In   the  report  already  quoted,  ^M.  Cottu 

remarks  that  the  English,  "  not  thinking  it  for  the  advantage 

"  of  the  public  to  punish  every  crime   committed  lest  the 

"  effect  of  example  should  be  weakened   by  the  frequency 

"  of  executions,  they  reserve  the  full  measure  of  their  severity 

"for  the  more  hardened  offenders,  and  dismiss  unpunished 

"  those  whose  guilt  is  not  proved  by  the  most  positive  testi- 

"  mony.     ^^hey  are  indifferent  whether  among  the  really 

"  guilty  such  be  convicted  or  acquitted.     So  much  the  worse 

"  for  him  against  whom  the  proofs  are  too  evident,  so  much 

"  the  better  for  the  other  in  whose  favour  there  may  exist 

"  some  faint  doubts  ;  they  look  upon  the  former  as  singled  out 

"  by  a  sort  of  fatality  to  serve  as  an  example  to  the  people, 

"  and  inspire  them  with  a  wholesome  terror  of  the  vengeance 

"  of  the   law ;    the   other  as  a  wretch   whose    chastisement 

"  heaven  has  reserved  in  "  (?  for)  "  the  other  world."    He  adds 

that  none  of  the   English  with   whom   he  was  in  company 

"  ever  positively  expressed  such  a  sentiment,  but  they  act  as 

"  if  they   thought   so."     There  may  be  some  exaggeration 

in  this,  but  the   sentiment  here  described  is  not  altogether 

unlike  the  practical  result  to  be  expected  from  the  maxim, 

"  Timor  in  omnes  j^cena  in  paucos,"  a  sentiment  not  unnatural 

Avhen  the  practice  and  the  theory  of  the  law  differed  so  widely 

as  they  did  sixty  years  ago.     It  was  natural  that  a  convicted 

prisoner  should  be  looked  upon  as  a  victim,  chosen  more  or 

less  by  chance,  when  the  whole  law  was  in  such  a  state  that 

public  sentiment  would  not  permit  of  its  being  carried  even 

proximately  into  effect. 

I  know  of  only  four  rules  of  evidence  which  can  be  said  to 
be  peculiar  to  criminal  proceedings. 

1.  The  first  and  by  far  the  most  important  is  the  rule  that 
the  prisoner  and  his  wife  are  incompetent  witnesses.  The 
history  of  this  rule  is  as  follows  : — The  husbands  or  wives  of 

^  Cnttu's  Repnrt,  p.  91,  &c. 

2  This  clumsy  sentence  is  obviously  the  fault  of  the  translator. 


440  INCOMPETENCY  OF  PRISONER  AND   WIFE  TO  TESTIFY. 

Ch.  XII.  prisoners,  were  never,  so  far  as  I  know,  compelled  to  testify 
against  their  wives  or  husbands.  But  down  to  the  Civil  Wars, 
as  I  have  already  shown,  the  interrogation  of  the  prisoner  on 
his  arraignment  formed  the  most  important  part  of  the  trial. 
Under  the  Stuarts  questions  were  still  asked  of  the  prisoner, 
though  the  extreme  unpopularity  of  the  ex  officio  oath,  and  of 
the  Star  Chamber  procedure  founded  upon  it,  had  led  to  the 
assertion  that  the  maxim,  "Nemo  tenetur  accusare  seipsum," 
was  part  of  the  law  of  God  and  of  nature  (to  use  the  language 
of  the  day),  an  assertion  which  was  all  the  more  popular  because 
it  condemned  the  practice  of  torture  for  purposes  of  evidence, 
then  in  full  use  both  on  the  Continent  and  in  Scotland. 

Soon  after  the  Eevolution  of  1688,  the  practice  of  question- 
ing the  prisoner  died  out,  and  as  the  rules  of  evidence  passed 
from  the  civil  to  the  criminal  courts,  the  rule  that  a  party  was 
incompetent  as  a  witness,  which  (subject  to  evasion  by  bills 
of  discovery  in  equity)  prevailed  in  civil  cases  till  ^1853,  was 
held  to  apply  to  criminal  cases.  This,  however,  was  subjfect 
to  two  important  quaUfications.  First,  the  prisoner  in  cases 
of  felony  could  not  be  defended  by  counsel,  and  had  there- 
fore to  speak  for  himself.  He  was  thus  unable  to  say,  as 
counsel  sometimes  still  says  for  him,  that  his  mouth  was 
closed.  On  the  contrary  his  mouth  was  not  only  open,  but 
the  evidence  given  against  him  operated  as  so  much  indirect 
questioning,  and  if  he  omitted  to  answer  the  questions  it 
suggested  he  was  very  likely  to  be  convicted.  This  was 
considerably  altered  by  the  act  which  allowed  prisoners 
accused  of  felony  the  benefit  of  counsel.  The  counsel  was 
always  able  to  say,  "  My  client's  mouth  is  closed.  If  he 
"  could  speak  he  might  say  so  and  so."  Within  the  last 
few  years,  however,  counsel  have  been  allowed  to  make 
any  statement  they  please  as  from  their  clients,  and  in 
^  some  instances  prisoners  have  been  allowed  to  make  such 
statements  themselves,  though  such  a  course  has  been  held 
to  give  the  prosecutor  a  right  to  reply.  Counsel  still  often 
allege  by  way  of  grievance  that  their  clients'  mouths  are 
closed  ;  but  no  one  who  is  acquainted  with  the  law  can  believe 

1  It  was  repealed  by  16  &  17  Vic.  c.  83. 

''  Especially  by  Cave,  J.,  in  the  winter  circuitof  1882.  I  have  done  the  same. 


NOT  EXAMINING  PRISONER.  44 1 

it,  nor  ought-  judges  to    allow   such  a   statement    to   pass    Ch.  Xll. 
uncontradicted. 

Secondly,  the  statutes  of-  Philip  and  Mary  already  referred 
to,  repealed  and  re-enacted  in  1826  by  7  Geo.  4,  c.  Qi, 
authorized  committing  magistrates  to  "  take  the  examlna- 
"  tion  "  of  the  person  suspected.  This  examination  (^  unless 
it  was  taken  upon  oath,  which  was  regarded  as  moral  com- 
pulsion), might  be  given  in  evidence  against  the  prisoner. 

This  state  of  the  law  continued  till  the  year  1848,  when 
by  the  11  &  12  Vic.  c.  42,  the  present  system  was  estab- 
lished, under  which  the  prisoner  is  asked  whether  he  wishes 
to  say  anything,  and  is  warned  that  if  he  chooses  to  do  so 
what  he  says  will  be  taken  down  and  may  be  given  in 
evidence  on  his  trial.  The  result  of  the  whole  is  that  as 
matters  stand  the  prisoner  is  absolutely  protected  against  all 
judicial  questioning  before  or  at  the  trial,  and  that,  on  the 
other  hand,  he  and  his  wife  are  prevented  from  giving 
evidence  in  their  own  behalf.  He  is  often  permitted,  however, 
to  make  any  statement  he  pleases  at  the  very  end  of  the 
trial,  when  it  is  difficult  for  any  one  to  test  the  correctness 
of  what  is  said. 

This  is  one  of  the  most  characteristic  features  of  English 
criminal  procedure,  and  it  presents  a  marked  contrast  to  that 
which  is  common  to,  I  believe,  all  continental  countries.  It 
is,  I  think,  highly  advantageous  to  the  guilty.  It  contributes 
greatly  to  the  dignity  and  apparent  humanity  of  a  criminal 
trial.     ^  It  effectually  avoids  the  appearance    of   harshness, 

1  See  my  Digest  of  the  Law  of  Evidence,  Art.  23,  and  note  xvi. 

2  The  contrast  is  described  by  M.  Cottu  in  a  singular  passage,  p.  103 — 4. 
"  The  courts  of  England  offer  an  aspbct  of  impartiality  and  humanity  which 
"  ours,  it  must  be  acknowledged,  are  far  from  presenting  to  the  eyes  of  the 
"  stranger.  In  England  everything  breathes  an  air  of  lenity  and  mildness, 
"  the  judge  looks  like  a  father  in  the  midst  of  his  family  occupied  in  trying 
"  one  of  his  children  "  (an  extraordinary  position  certainly  for  a  man  to  be 
placed  in).  "  His  countenance  has  nothing  threatening  in  it.  According  to 
"  an  ancient  custom  flowers  are  strewed  upon  his  desk  and  upon  the  clerk's. 
"  The  sheriff  and  officers  of  the  court  wear  each  a  nosegay."  .  .  .  "Every- 
"  thing  among  us,  on  the  contrary,  appears  in  hostility  to  the  prisoner.  He 
"  is  often  treated  by  the  public  officers  with  a  harshness,  not  to  say  cruelty,  at 
"  which  an  Englishman  would  shudder.  Even  our  presiding  judges,  instead 
"  of  showing  that  concern  for  the  prisoner  to  which  the  latter  might  appear 
"  entitled  from  -the  character  of  impartiality  in  the  functions  of  a  judge, 
'•  whose  duty  is  to  direct  the  examination,  and  to  establish  the  indioiSnient, 
"  too  often  becomes  a  party  against  the  prisoner,  and  would  seem  sometimes 
"  to  think  it  less  a  duty  than  an  honour  to  procure  his  conviction." 


442         EXAMINATION   OF   INNOCENT  PRISONER   FAVOURABLE  TO  HIM. 

ch.  xii.  not  to  say  cruelty,  which  often  shocks  an  English  spectator  in 
a  French  court  of  justice,  and  I  think  that  the  fact  that  the 
prisoner  cannot  be  questioned  ^stimulates  the  search  for 
independent  evidence.  ^  The  evidence  in  an  English  trial  is,  I 
think,  usually  much  fuller  and  more  satisfactory  than  the 
evidence  in  such  French  trials  as  I  have  been  able  to  study. 

On  the  other  hand,  I  am  convinced  by  much  experience 
that  questioning,  or  the  power  of  giving  evidence,  is  a 
positive  assistance,  and  a  highly  important  one,  to  inni.'cent 
men,  and  I  do  not  see  why  in  the  case  of  the  guilty  there 
need  be  any  hardship  about  it.  It  must  be  remembered 
that  most  persons  accused  of  crime  are  poor,  stupid,  and 
helpless.  They  are  often  defended  by  solicitors  who  confine 
their  exertions  to  getting  a  copy  of  the  depositions  and 
endorsing  it  with  the  name  of  some  counsel  to  whom  they 
pay  a  very  small  fee,  so  that  even  when  prisoners  are  defended 
by  counsel  the  defence  is  often  extremely  imperfect,  and  con- 
sists rather  of  what  occurs  at  the  moment  to  the  solicitor  and 
counsel  than  of  what  the  man  himself  would  say  if  he  knew 
how  to  say  it.  When  a  prisoner  is  undefended  his  position 
is  often  pitiable,  even  if  he  has  a  good  case.  An  ignorant 
uneducated  man  has  the  greatest  possible  difficulty  in 
collecting  his  ideas,  and  seeing  the  bearing  of  facts  alleged. 
He  is  utterly  unaccustomed  to  sustained  attention  or  syste- 
matic thought,  and  it  often  appears  to  me  as  if  the  pro- 
ceedings on  a  trial,  which  to  an  experienced  person  appear 
plain  and  simple,  must  pass  before  the  eyes  and  mind  of  the 
prisoner  like  a  dream  which  he  cannot  grasp.  I  will  give 
an  illustration  of  what  I  mean,  which  many  years  ago 
impressed  me  deeply. 

A  number  of  men,  six  or  seven,  I  think,  were  indicted  at 
Lincoln  on  three  separate  charges  arising  out  of  the  same 
set  of  facts.      The  indictments  charged,  wounding  A,  with 

'  During  the  discussions  which  took  place  on  the  Indian  Code  of  Criminal 
Procedure  in  1872  some  observations  were  made  on  the  reasons  which  occa- 
sionally lead  native  police  officers  to  apply  torture  to  prisoners.  An  experienced 
civil  officer  observed,  "  There  is  a  great  deal  of  laziness  in  it.  It  is  far 
"  pleasanter  to  sit  comfortably  in  the  shade  rubbing  red  pepper  into  a  poor 
"  devil's  eyes  than  to  go  about  in  the  sun  hunting  up  evidence."  This  was 
a  new  view  to  me,  but  I  have  no  doubt  of  its  truth. 

-  See  the  trials  at  the  end  of  this  work. 


CASE  AT  LINCOLN.  443 

intent  to  do  liim  grievous  bodily  harm,  wounding  B,  with  Ch.  Xll. 
the  same  intent,  and  being  to  the  number  of  three  or  more 
on  land  armed  by  night  for  the  purpose  of  poaching.  The 
facts  were  that  a  gang  of  poachers  had  fallen  in  with  certain 
keepers  and  their  assistants,  and  that  A  and  B,  two  of  the 
keepers'  party  were  severely  beaten  and,  indeed,  nearly 
murdered.  ^  On  the  first  and  second  indictments  some  of  the 
party  were  convicted  of  unlawfully  wounding  A  and  B 
respectively.  On  the  third  indictment  all  were  convicted  of 
night  poaching.  At  the  first  trial  they  hardly  defended 
themselves  at  all,  though  one  of  the  party  slightly  cross- 
examined  the  leading  witnesses  for  the  Crown.  One  witness 
said  that  a  dog  which  he  saw  with  the  poachers  was  white, 
and  another  said  that  it  was  red.  The  prisoners  pointed  out 
this  small  difference  in  a  feeble  helpless  way,  without  showing 
that  it  was  at  all  important,  and  they  were  at  once  convicted 
on  the  minor  charge  of  unlawful  wounding.  As  I  considered 
this  verdict  insufficient  the  other  indictmeuts  were  tried.  On 
the  second  trial,  as  I  was  informed,  the  prisoners  appeared  to 
understand  what  was  going  on  much  better,  and  some  of 
them  defended  themselves  with  a  good  deal  of  energy.  On 
the  third  trial  they  fully  tinderstood  the  whole  matter  and 
brought  out  their  real  defence.  The  defence  was  that  on  the 
night  in  question  two  different  parties  went  out  poaching, 
one  with  a  white  dog  and  the  other  with  a  red  dog,  that  they 
set  out  together  and  returned  together,  but  that  the  fray  took 
place  between  the  keepers  and  one  only  of  the  parties  of 
poachers,  and  that  the  evidence  confused  together  the  white 
dog  party  and  the  red  dog  party.  The  judge  who  tried  the 
case  was  so  much  impressed  by  the  defence,  which  the  jury 
would  not  believe,  that  he  made,  and  caused  to  be  made, 
independent  inquiries,  which  finally  resulted  in  a  grant  of 
free  pardons  to  several  of  the  prisoners.  Others  were 
clearly  guilty,  and,  indeed,  admitted  their  guilt.  If  these 
men  could  have  been  questioned,  I  think  all  the  innocent 
members  of  the  party  would  have  been  acquitted  at  once. 
The  following  is  another  instance  which  struck  me  much.    I 

^  I  was  couDsel  for  the  crown,  but  I  was  not  present  at  the  second  and 
third  trials,  though  I  was  present  at  the  first,  and  was  fully  informed  at  the 
time  of  all  that  happened  at  the  other  two. 


444  OTHER   ILLUSTRATIONS. 

Ch>  X II.  keard  of  it  on  unquestionable  authority,  though  I  was  not  myself 
present  on  the  occasion : — A  man  was  indicted  at  a  Court 
of  Quarter  Sessions  for  stealing  a  spade.  The  evidence  was 
that  the  spade  was  safe  overnight  and  was  found  in  his  posses- 
sion next  day,  and  that  he  gave  no  account  of  it.  He  made 
no  defence  whatever,  and  was  immediately  convicted.  When 
called  upon  to  say  why  sentence  should  not  be  passed  upon 
him,  he  replied  in  a  stupid  way,  "  Well,  it  is  hard  I  should 
be  sent  to  gaol  for  this  spade,  when  the  man  I  bought  it  of  is 
standing  there  in  court."  The  chairman  caused  the  man 
referred  to  to  be  called  and  sworn ;  the  jury,  after  hearing 
him,  recalled  the  verdict  they  had  given,  and  the  man  was 
acquitted  at  once. 

These  are  specimens  of  a  considerable  number  of  cases 
which  have  led  me  to  form  an  opinion,  that  when  a 
wrong  conviction  does  occur  in  an  English  criminal  court, 
it  is  usually  caused  by  treating  a  poor  and  ignorant  man 
as  if  he  were  rich,  well  advised,  and  properly  defended. 
If  money  enough  is  to  be  had  to  procure  the  services  of 
skilful  counsel  and  solicitors,  and  to  provide  all  the  evidence 
which  may  be  required,  the  presumption  that  every  point  is 
taken  which  can  be  taken,  and  that  matters  passed  over  are 
passed  over  advisedly,  is  probably  true,  and  I  think  nothing 
can  be  fairer  or  more  completely  satisfactory  than  a  great 
criminal  trial  so  conducted.  A  poor  and  ill-advised  man,  on 
the  contrary,  is  always  liable  to  misapprehend  the  true  nature 
of  his  defence,  and  might  iu  many  cases  be  saved  from  the 
consequences  of  his  own  ignorance  or  misfortune  by  being 
questioned  as  a  witness.  I  do  not  think  that  any  evil  would 
easue  to  the  wealthy  and  well-advised  from  being  placed  in 
the  same  position. 

The  practice  suggested  would  also  make  it  impossible  for 
prisoners  to  play  a  triok  upon  the  court  which  is  sometimes 
practised  at  present,  and  which  causes  great  embarrassment. 
A  prisoner,  let  us  suppose,  has  a  defence  to  offer  which  he 
considers  doubtful  and  dangerous.  He  accordingly  keeps 
it  to  himself,  and  takes  his  chance  of  an  acquittal  on  the 
weakness  of  the  case  for  the  crown.  After  conviction  and 
sentence  he  brings  out  his  real  defence.     This,  especially  in 


SUGGESTIONS  AS  TO   EXAMINING  PEISONEBS.  445 

capital  cases,  is  extremely  embarrassing.  It  is  hard  to  hang  Ch,  Xll. 
a  man  because  he  or  his  advisers  have  not  been  candid,  and 
it  is  also  hard  to  hang  a  man  whose  real  defence  was  not  put 
before  the  jury.  In  such  cases,  accordingly,  informal  in- 
quiries have  to  be  made,  which  are  seldom  satisfactory,  and 
often  cause  failures  of  justice.  If  the  prisoner  was  questioned, 
this  result  would  be  generally  avoided.^ 

The  propriety  of  making  the  parties  competent  witnesses 
in  civil  cases  is  no  longer  disputed.  It  is  difficult  to  say  why 
the  same  rule  should  not  apply  to  criminal  cases  also.  One 
objection  to  the  admission  of  such  evidence  rests  upon  the 
false  supposition  that  a  witness  is  to  be  believed  because  he 
is  sworn  to  speak  the  truth.  The  proper  ground  for  admit- 
ting evidence  is  not  that  people  are  reluctant  to  lie  but  that 
it  is  extremely  difficult  to  lie  minutely  and  circumstantially 
without  being  found  out. 

If  prisoners  are  to  be  made  competent  witnesses,  I  think 
they  ought  to  be  competent  to  testify  as  well  before  the 
magistrate  as  before  the  judge.  No  greater  test  of  innocence 
can  be  given  than  the  fact  that  as  soon  as  he  is  charged,  and 
whilst  there  is  still  time  to  inquire  into  and  test  his  state- 
ments, a  man  gives  an  account  of  the  transaction  which  will 
stand  the  test  of  further  inquiry. 

Some  precautions  might  properly  be  observed  in  admitting 
such  evidence.  If  the  prisoner  did  not  offer  his  testimony 
it  would  be  hard  to  allow  the  prosecution  to  call  him.  The 
fact  of  his  refusing  to  testify  would  always  have  its  weight 
with  the  jury.  By  leaving  him  to  be  exanained  in  chief  by 
his  own  counsel  and  cross-examined  by  the  counsel  for  the 
cro\yn  the  danger  of  placing  the  judge  in  a  position  hostile 
to  the  prisoner  would  be  avoided.  I  should  regard  this 
as  so  important  an  object  that  unless  it  could  be  fully 
secured  I  should  prefer  to  maintain  the  existing  law  as  it 
stands.  The  following  provision,  upon  this  subject  was  intro- 
duced into  the  Draft  Criminal  Code  of  1879,  though  the 
Commissioners  were  divided  in  opinion  as  to  its  policy  : — 
"  2  Evidence  of  the  Accused. — Every  one  accused  of  any 

1  As  an  instance,  I  may  refer  to  the  recent  case  of  Lamson,  hanged  for 
poisoning  his  brother-in-law.  ^  See  Report,  p.  37,  s.  523. 


44^  CEIMINAL   CODE  COMMISSION. 

Ch.  XII,  "  indictable  offence  shall  be  a  competent  witness  for  himself 
"  or  herself  upon  his  or  her  trial  for  such  offence,  and  the  wife 
"  or  husband  as  the  case  may  be  of  every  such  accused  person 
"  shall  be  a  competent  witness  for  him  or  her  upon  such 
•'  trial :  provided  that  no  such  person  shall  be  liable  to  be 
"  called  as  a  witness  by  the  prosecutor,  but  every  such  witness 
"  called  and  giving  evidence  on  behalf  of  the  accused  shall 
"  be  liable  to  be  cross-examined  like  any  other  witness  on  any 
"  matter  though  not  arising  out  of  his  esamination-in-chief : 
"  provided  that  so  far  as  the  cross-examination  relates  to  the 
"  credit  of  the  accused,  the  court  may  limit  such  cross- 
"  examination  to  such  extent  as  it  thinks  proper,  although 
"  the  proposed  cross-examination  might  be  permissible  in  the 
"  case  of  any  other  witness." 

2.  Another  set  of  rules  peculiar  to  criminal  trials  are  ^  the 
rules  relating  to  evidence  of  confessions.     These  extremely 

'  The  Tales  as  to  confessione  are  thus  stated  in  my  Digest  of  the  Law  of 
Evidence  :  "^ArticIe  21. — Confessions  Defined. — A  confession  is  an  admission 
"  made  at  any  time  by  a  person  charged  with  a  crime,  stating  or  suggesting 
"  the  inference  that  he  committed  that  crime.  Confessions,  if  voluntary,  are 
' '  deemed  to  he  relevant  facts  as  against  the  persons  who  make  them  only. 

"  Article  22. — Confessions  caused  by  Inducement,  Threat,  or  Promise,  when 
'"  Irrelevant  in  Criminal  Proceedings. — No  confession  is  deemed  to  be  volun- 
' '  tary  if  it  appears  to  the  judge.to  have  been  caused  by  any  inducement,  threat, 
"  or  promise,  proceeding  from  a  person  in  authority,  and  having  reference  to 
"  the  charge  against  the  accused  person,  whether  addressed  to  him  directly  or 
"  brought  to  his  knowledge  indirectly  ;  and  if  (in  tbe  opinion  of  the  judge) 
"  such  inducement,  threat,  or  promise,  gave  the  accused  person  reasonable 
"  grounds  for  supposing  that  by  making  a  confession  he  would  gain  some 
"  advantage  or  avoid  some  evil  in  reference  to  the  proceedings  against  him. 
"  A  confession  is  not  involuntary  only  because  it  appears  to  have  been  caused 
"  by  the  exhortations  of  a  person  in  authority  to  make  it  as  a  matter  of 
"  religious  duty,  or  by  an  inducement  collateral  to  the  proceeding,  or  by 
"  inducements  held  out  by  a  person  not  in  authority.  The  prosecutor, 
"  officers  of  justice  having  the  prisoner  in  custody,  magistrates,  and  other 
"  persons  in  similar  positions,  are  persons  in  authority.  The  master  of  the 
"  prisoner  is  not  as  such  a  person  in  authority,  if  the  crime  of  which  the 
"  person  making  the  coiifession  is  accused  was  not  committed  against,  him. 
"  A  confession  is  deemed  to  be  voluntary  if  (in  the  opinion  of  the  judge)  it  is 
"  shown  to  have  been  made  after  the  complete  removal  of  the  impression  pro- 
"  duced  by  inducement,  threat,  or  promise  which  would  otherwise  render  it 
"  involuntary  Facts  discovered  in  consequence  of  confessions  improperly 
"  obtained,  and  so  much  of  such  confessions  as  distinctly  relate  to  such  facts, 
"  may  be  proved. 

"  Article  24. — Confession  made  under  a  Promise  of  Secrecy. — If  a  confession 
"  is  otherwise  relevant,  it  does  not  become  irrelevant  merely  because  it  was 
"  made  under  a  promise  of  secrecy,  or  in  consequence  of  a  deception  practised 
"  on  the  accused  person  for  the  purpose  of  obtaining  it,  or  when  he  was 
"  drunk,  or  because  it  was  made  in  answer  to  questions  which  he  need  not 
"  have  answered,  whatever  may  have  been  the  form  of  those  questions,  or 
"  because  he  was  not  warned  that  he  was  not  bound  to  make  such  confession, 
"  and  that  evidence  of  it  might  be  given  against  him." 


HISTORY   OF   RULE  AS  TO   INDUCEMENTS.  447 

detailed  and  elaborate  rules  were  developed  by  a  series  of  Ch.  xii. 
judicial  decisions  within  the  last  century  (Warickshall's 
case,  1  Leach,  263,  decided  in  1783,  is  one  of  the  earliest  on 
the  subject),  from  the  general  proposition  that  "  confessions 
"  ought  to  be  voluntary  and  without  compulsion."  The  rule 
is  stated  almost  in  these  words  in  the  sixth  edition  of  Gilbert 
on  the  Law  of  Evidence,  published  in  1801,  p.  123.  ^A  vast 
number  of  cases  have  since  been  decided  by  which  every 
branch  of  the  rules  given  below  is  established.  It  would 
be  difficult  to  give  a  stronger  illustration  of  the  way  in 
which  the  law  of  England  is  gradually  made  by  judicial 
decisions  than  is  afforded  by  the  growth  of  this  rule.  I  can- 
not here  go  into  detail  upon  the  subject,  but  I  may  observe 
in  general  that  the  character  of  the  decisions  has  varied 
considerably.  At  one  time  the  courts  were  disposed  to  take 
almost  any  opportunity  to  exclude  evidence  of  confessions, 
almost  anything  being  treated  as  an  inducement  to  confess. 
In  1852,  however,  the  law  was  considerably  modified  by  the 
decision  in  the  case  of  ^  R.  v.  Baldry,  since  which  time  the 
disposition  has  been  rather  the  other  way. 

The  general  maxim,  that  confessions  ought  to  be  voluntary, 
is  historically  the  old  rule  that  torture  for  the  purpose  of 
obtaining  confessions  is,  and  long  has  beeu,  illegal  in  England. 
In  fact  it  cannot  be  said  that  it  ever  was  legal,  though  it 
seemed  at  one  time  as  if  it  were  likely  to  become  legal. 

3.  Another  rule  peculiar  to  criminal  cases  is  ^the  exception 
to  the  rule  respecting  hearsay  evidence  which  renders  dying 
declarations  as  to  the  cause  of  death  admissible  in  trials  for 
murder  or  manslaughter.  I  believe  this  rule  as  now  limited 
to  be  about  100  years  old.     The  earliest  emphatic  statement 

'  They  are  collected  in  Taylor,  On  Evidence,  769 — f  09,  and  elsewhere. 

2  2  Den  480.  The  latest  oases  are  E.  v.  Jarvis,  L.  R.  1  0.  0.  JR.  96,  and 
R.  V.  Reeve,  ib.  364. 

'  The  rule  is  thus  stated  in  my  Digest  of  the  Law  of  Evidence  : — "  Article 
"26.  — Dying  Declaration  as  to  the  Cause  of  Death. — A  declaration  made  by 
"  the  declarant  as  to  the  cause  of  his  death,  or  as  to  any  of  the  circumstances  of 
"  the  transaction  which  resulted  in  his  death,  is  deemed  to  be  relevant  only 
"  in  trials  for  the  murder  or  manslauuhter  of  the  declarant ;  and  only  when 
"  the  decliiraut  is  shown,  to  the  satisfaction  of  the  judge,  to  have  been  in 
"  actual  danger  of  death,  and  to  have  given  up  all  hope  of  recovery  at  the 
"  time  when  his  declaration  was  made.  Such  a  declaration  is  not  irrele- 
"  vaut  merely  because  it  was  intended  to  be  made  as  a.  deposition  before  a 
"  magistrate,  but  was  u-regular. 


448  EXJLE   AS  TO 'DYING  DECLARATIONS. 

Ch.  xii.  of  it  commonly  quoted  is  to  be  found  in  ^Woodcock's  case, 
decided  in  1789  by  Lord  Chief  Baron  Eyre.  This  case  refers 
to  a  decision  in  1720  by  Lord  Chief  Justice  King,  and  to  the 
case  of  ^R.  v.  Reason  and  Tranter,  decided  in  1722.  That 
case,  however,  says  nothing  as  to  any  limitation  on  the  rule. 
A  series  of  cases  from  1678  to  1765  show  that  during  that 
period  declarations  of  deceased  persons  as  to  the  cause  of 
their  death  were  admitted  ev,en  though  the  declarants  had 
hopes  of  recovery  when  they  were  made.  In  the  ^  trial  of 
Lord  Pembroke  for  the  murder  of  Mr.  Cony  in  1678, 
evidence  was  given  of  many  statements  made  by  the 
deceased  as  to  the  cause  of  his  death ;  they  must  have 
been  made  when  he  hoped  to  recover,  as  he  said  he  should 
demand  satisfaction  for  the  injury  done  him.  In  the  case 
of  *Lord  Ferrers,  tried  in  1760,  evidence  was  given  as  to 
what  Johnson,  the  steward,  said  about  Lord  Ferrers  having 
shot  him,  without  any  question  being  asked  as  to  his  hopes 
of  recovery  at  the  time.  Lord  Mansfield  was  one  of  the 
peers  present  on  this  occasion,  and  took  a  leading  part  in  the 
proceedings.  Again,  in  the  trial  in  1765  of  ^  Lord  Byron 
for  the  murder  of  Mr.  Chaworth,  evidence  was  given  by  Mr. 
Caesar  Hawkins,  the  surgeon,  of  what  Mr.  Chaworth  said 
about  the  transaction,  without  any  such  preliminary  inquiry 
as  to  his  expectation  of  recovery  as  would  now  be  made.  It 
certainly  appeared  from  the  evidence  that  he  was  aware 
of  his  danger  but  not  that  he  had  no  hopes  of  life. 

The  rule  is  in  many  ways  remarkable.  It  has  worked, 
I  am  informed,  ill  in  India,  into  which  country  it  has  been 
introduced  together  with  many  other  parts  of  the  English 
law  of  evidence.  I  have  heard  that  in  the  Punjab  the  effect 
of  it  is  that  a  person  mortally  wounded  frequently  makes 
a  statement  bringing  all  his  hereditary  enemies  on  to 
the  scene  at  the  time  of  his  receiving  his  wound,  thus 
using  his  last  opportunity  to  do  them  an  injury.  A 
remark  made   on   the  policy  of  the    rule  by    a  native  of 

^  Leach,  502.  It  is  singular  that  WarickshaU's  case,  which  contains  the 
earliest  statement  of  the  modern  law  as  to  confessions,  should  have  -been 
decided  by  the  same  judge  a  few  years  before.  The  language  used  in  each  case 
is  rather  rhetorical  and  inflated.  ^  1  St.  Tr.  449. 

3  6  St.  Tr.  1325.  ■>  19  lb.  918.  ^  lb.  1205-6. 


EVIDENCE  OP  CHARACTER.  449 

Madras  shows  how  differently  such  matters  are  viewed  in   Ch.  XII. 
different   parts  of  the   world.     "Such   evidence,"  he   said, 
"  ought  never  to  be  admitted  in  any  case.     What  motive  for 
"  telling  the  truth  can  any  man  possibly  have  when  he  is 
"  at  the  point  of  death  ? " 

4.  Lastly,  evidence  as  to  the  character  of  the  accused 
person  is  admitted  in  criminal  cases  as  a  sort  of  indulgence, 
though  character  is  usually  treated  as  irrelevant.  Before  the 
Norman  Conquest  (as  I  have  already  shown)  the  character  of 
the  accused  decided  the  question  whether  he  was  to  be  allowed 
to  make  his  purgation  by  compurgators  or  was  to  be  sent  to 
the  ordeal.  In  later  times  the  character  of  the  accused  must 
have  weighed  with  the  jury  who  acted  as  witnesses.  Under 
the  Stuarts  (as  I  have  shown)  evidence  was  freely  given  of 
particular  crimes  or  misconduct,  unconnected  with  the  matter 
in  issue,  committed  by  the  prisoner.  Evidence  of  his  good 
character  was  also  admitted.  An  early,  perhaps  the  earliest, 
instance  of  this  is  to  be  found  in  ^the  trial  of  Colonel  Turner 
for  burglary  in  1664.  The  report  does  not  give  the  evidence 
of  the  prisoner's  witnesses,  but  he  must  have  called  such 
witnesses,  for  Lord  Chief  Justice  Hyde  said  in  summing  up  : 
"  The  witnesses  he  called  in  point  of  reputation  that  I  must 
''  leave  to  you.  I  have  been  here  many  a  fair  time.  Few 
"  men  that  come  to  be  questioned  but  shall  have  some  come 
"  and  say — He  is  a  very  honest  man,  I  never  knew  any  hurt 
"  by  him ;  but  is  this  anything  against  the  evidence  of 
':  the  fact  ?  " 

All  through  the  eighteenth  century  evidence  of  character 
was  given  on  behalf  of  the  prisoner  as  it  is  now.  Perhaps 
the  most  remarkable  recorded  instance  of  it  occurred  in  the 
Hrial  of  Mr.  Arthur  O'Connor  for  high  treason  in  1798,  when 
Lord  Moira,  Mr.  Erskine,  Mr.  Fox,  Lord  Suffolk,  Mr.  Sheridan, 
Mr.  Michael  Angelo  Taylor,  Mr.  Grattan,  and  Mr.  Whitbread, 
were  called,  and  "  many  other  gentlemen  equally  respectable  " 
were  tendered  to  give  evidence  as  to  his  character  for  loyalty. 
Great  importance  must  have  been  attached  to  this  evidence 
as  the  prisoner  gave  up  the  advantage  of  being  defended  by 
Erskine  for  the  sake  of  calling  him  as  a  witness. 

1  6  St.  Tr.  613.  '  27  lb.  31-53. 

VOL.   I.  ^  ^ 


450  E.  V.   ROWTON. 

Ch.  XII.        The  whole  of  the  law  as  to  witnesses   to  character  was 
-  greatly  discussed  in  the  case  of  ^  R.  v.  Rowton,  decided  in  1863, 

in  which  it  was  decided  by  all  the  judges  that  if  evidence 
of  good  character  was  given  for  the  prisoner  evidence  of  bad 
character  might  be  given  against  him,  and  by  eleven  judges 
against  two  (Erie,  C.  J.,  and  WiUes,  J.)  that  evidence  of 
character  means  evidence  of  reputation  as  opposed  to  evidence 
of  disposition.  The  decision  settled  the  law,  but  in  practice 
it  is  impossible  to  act  upon  it,  and  it  may  be  doubted  whether 
it  is  desirable  to  try  to  do  so.  The  facts  in  R.  v.  Rowton  set 
this  in  so  clear  a  light  that  comment  upon  them  seems  to  me 
superfluous.  The  prisoner  took  pupils,  and  was  convicted 
of  committing  an  indecent  assault  upon  one  of  them.  He 
called  witnesses  who  gave  him  "  an  excellent  character  as  a 
moral  and  well-conducted  man."  Thereupon  a  witness  was 
called  to  contradict  this  evidence,  who  was  asked,  "  What  is 
"  the  defendant's  general  character  for  decency  and  morality 
"  of  conduct?"  He  was  allowed  to  answer,  "I  know  nothing 
"  of  the  neighbourhood's  opinion,  because  I  was  only  a  boy 
"  at  school  when  I  knew  him,  but  my  own  opinion,  and  the 
"  opinion  of  my  brothers,  who  were  also  pupils  of  his,  is  that 
"  his  character  is  that  of  the  grossest  indecency  and  the  most 
"  flagrant  immorality."  This  was  held  to  be  a  ground  for 
quashing  the  conviction,  so  that  the  case  expressly  decides 
that  if  a  man  gains  a  reputation  for  honesty  or  morality  by 
the  grossest  hypocrisy  he  is  entitled  to  give  evidence  of  it, 
which  evidence  cannot  be  contradicted  by  people  who  know, 
the  truth. 

The  examination  of  the  witnesses  having  been  completed 
if  the  prisoner  is  defended  by  counsel,  and  if  no  witnesses 
(except  witnesses  to  character)  are  to  be  called  for  the  defence, 
the  counsel  for  the  Crown  may  sum  up  the  evidence.  His 
right  to  do  so  was  given  by  28  Vic.  c.  18,  s.  2,  which  was 
passed  in  1865.  The  theory  was  that  matters  might  come  out 
in  evidence  which  ought  to  be  explained  and  commented  upon 
by  the  counsel  for  the  Crown  before  the  defence  was  made. 
I  doubt  the  advantage  of  the  change.  It  adds  a  speech  where 
there  is  already  speaking  enough. 

^  L,  &  C.  520. 


DEFENCE,  451 

This  is  follow'ed  by  the  defence.     It  is  a  highly  character-   Ch.  Xll. 
istic  part  of  an  English  criminal  trial. 

^M.  Oottu  observes,  in  reference  to  the  mildness  with  which 
prisoners  are  prosecuted  in  England :  "  It  is  true  that  the 
"  liberty  of  defence,  very  differently  understood  in  France 
"  from  what  it  is  in  England,  forces  us  to  a  much  more 
"  rigorous  prosecution ;  it  would  be  almost  impossible  to 
"  convict  a  prisoner  considering  the  latitude  which  our  laws 
"  give  to  the  defence,  were  the  prosecution  confined  within 
"  the  limits  prescribed  in  England,  that  is,  were  it  forbidden 
"  to  question  the  prisoner  and  his  accomplices." 

No  one  at  all  acquainted  with  the  subject  would  admit 
that  English  barristers  are  in  any  degree  inferior,  either  in 
courage,  or  in  independence,  or  in  resource,  to  any  body  of 
professional  men  in  the  world,  but  it  is  unquestionably  true 
that  the  history  of  English  advocacy  in  criminal  cases  is  far 
calmer  than  the  history  of  French  advocacy,  in  recent  times. 
Collisions  between  the  Bench  and  the  Bar  are  exceedingly 
rare,  and  when  they  do  occur  they  arise  rather  out  of 
individual  faults  of  temper  on  the  one  side  or  the  other  than 
from  any  struggle  as  to  matters  of  principle,  or  any  attempt 
on  the  part  of  the  Bar  to  prevent  the  application  to  the  case 
of  the  law  laid  down  by  the  judge. 

Several  observations  arise  both  upon  the  history  and  the 
causes  of  this  state  of  feeling.  For  a  great  length  of  time 
the  Bar  had  no  opportunity  of  defending  their  clients  at  all, 
except  in  cases  of  misdemeanour.  Misdemeanours  of  im- 
portance on  public  grounds  were  usually  tried  before  the  Star 
Chamber,  and  the  discretion  of  that  court  was  so  wide  and 
its  decisions  so  little  capable  of  being  checked  by  any  power 
except  Parliament,  that  there  was  practically  no  opportunity 
for  the  Bar  to  say  anything  of  importance.  From  the  Civil 
"Wars  to  the  Revolution  of  1688,  prisoners  in  cases  of  treason 
and  felony  had  no  counsel.  Their,  defences,  in  cases  of  mis- 
demeanour, were  not  very  impressive.  The  only  case  to  the 
contrary  which  occurs  to  me  is  the  case  of  the  seven  bishops, 
which  was  in  every  way  so  exceptional  that  no  inference  as 
to  the  common  course  of  justice  can  be  drawn  from  it. 

i  P.  101 

G  G  2 


452  RELATIONS  BETWEEN   BENCH  AND  BAR. 

Ch.  XII.        Since    the    Kevolution    the  following    affirmations    with 
"  respect  to  the  Bar  and  the  defence  of  prisoners  may  fairly 

be  made.  In  the  first  place  there  always  has  been  and 
still  is  a  degree  of  sympathy  and  fellow-feeling  between 
the  Bench  and  the  Bar  which  I  believe  to  be  peculiar  to 
this  country,  and  which  has  had  and  still  has  most  important, 
and,  as  I  (naturally)  consider,  most  beneficial  effects  upon  the 
administration  of  justice.  The  judges  are  simply  barristers 
who  have  succeeded  in  the  profession  ^  of  which  they  still  are 
members,  and  they  carry  to  the  Bench  the  professional  habits 
and  ways  of  thought  acquired  in  the  course  of  a  professional 
lifetime,  beside  which  they  are  naturally  upon  terms  of 
intimacy  with  the  senior  members  of  the  profession.  This 
gives  them  an  influence  in  the  administration  of  justice  which 
those  who  have  neither  felt  nor  exercised  it  can  hardly 
appreciate.  The  judges  can  hardly  fail  to  understand  the  un- 
written rules  and  sentiments  which  determine  the  duties  of 
counsel,  and  when  they  do  understand  them  and  apply  them 
fairly,  they  have  the  sentiment  of  the  profession  on  their 
side.  These  sentiments  are  to  a  surprising  extent  on  the  side 
of  the  existing  law.  The  number  of  barristers  who  try  to 
evade  its  application  or  who  wish  to  see  it  defeated  by  an 
appeal  to  prejudice  is  small.  The  action  of  a  judge 
who  warns  counsel  that  he  is  going  beyond  the  limits 
assigned  to  him  either  by  trying  to  intimidate  a  jury  or  by 
attempting  to  induce  them  to  break  the  law  from  motives 
of  prejudice,  or  by  making  suggestions  which  the  evidence 
does  not  warrant,  is  never  in  my  experience  unpopular 
amongst  those  with  whom  the  judge  wishes  to  be  on 
good  terms,  namely,  the  members  of  his  own  profession. 
The  barrister's  province  is  singularly  well  defined.  It  is 
to  say  for  his  client  whatever  upon  the  evidence  it  is  by 
law  open  to  him  to  say,  and  which  he  thinks  likely  to  be 
advantageous.     The  judge's  province  is  equally  well  defined. 

_  ^  In  former  times  judges  -when  dismissed  from  the  Bencli  returned  to  prac- 
tice at  the  Bar,  and  I  know  of  no  legal  reason  why  if  a  judge  resigned  his 
office  he  might  not  resume  his  practice.  The  judges  are  now  Benchers  of  their 
respective  Inns.  As  members  of  Serjeant's  Inn  they  formed  a  domestic 
tribunal  having  the  authority  of  a  Court  of  Appeal  over  the  Inns  of  Court. 
The  present  judges  of  the  Queen's  Bench  Division  had  been  on  an  average 
nearly  twenty-eight  years  at  the  Bar  before  they  were  raised  to  the  Bench. 


HISTORY   OF   RELATIONS   BETWEEN   BENCH  AND  BAR.  453 

It  is  to  prevent  mis-statements  of  law  and  of  fact  and  attempts    Ch.  Xll. 

to  intimidate  or  mislead  the  jury.     Again,  though  the  form 

of  the  law  is  clumsy,  its  substance  is  on  almost  every  subject 

so  minute  and  complete  that  there  can  be  little  doubt  as  to 

the  point  at  which  a  barrister  begins  to  mis-state  it  or  to  ask 

the  jury  to  transgress  it.     Finally,  the  whole  legal  profession 

is  a  pre-eminently  manly  one.  It  is  a  calling  in  which  success 

is  impossible  to  the  weak  or  timid,  and  in  which  every  one, 

judge  or  barrister,  is  expected  to  do  his  duty  without  fear 

or  favour  to  the  best  of  his  ability  and  judgment. 

I  am  no  doubt  prejudiced  in  fevour  of  a  system  in  the 
administration  of  which  great  part  of  my  life  is  passed,  but  it 
seems  to  me  that  the  result  of  this  state  of  things  has  been 
in  the  past,  and  is  in  the  present,  eminently  satisfactory. 
Even  in  times  of  vehement  political  excitement  the  Bench 
and  the  Bar  have  hardly  ever  been  brought  into  collision, 
though  neither  has  as  a  rule  failed  in  its  special  duty,  and 
though  on  particular  occasions  the  result  of  the  criminal 
trials  conducted  by  their  agency  has  been  of  the  highest 
political  importance. 

The  following  are  a  few  instances  of  this  : — 
Throughout  the  eighteenth  century  counsel  were  allowed 
to  speak  in  cases  of  treason  and  misdemeanour  only.  No 
case  of  treason  which  gave  rise  to  any  point  of  much  con- 
stitutional importance  occurred  before  the  trial  of  Lord 
George  Gordon  for  the  riots  of  1780.  In  the  trials  for  the 
rebellions  of  1715  and  1745,  there  was  no  room  for  doubt  as  to 
either  the  law  or'  the  facts.  The  points  connected  with  the 
trial  of  Lord  George  Gordon  I  shall  consider  more  fully  ^  here- 
after, but  the  matter  relevant  to  the  present  subject  is  that 
Erskine's  famous  speech  in  his  defence  does  not  in  any  single 
instance  go  beyond  the  line  I  have  tried  to  draw  as  that 
which  limits  the  duty  of  an  advocate.  His  whole  defence 
is  based  upon  a  view  of  the  law  which  differs  from  that  which 
was  afterwards  laid  down  by  Lord  Mansfield  mainly  in  style. 
The  statements  of  the  law  made  by  the  advocate  and  the  judge 
are  in  substance  identical.  Nearly  the  same  may  be  said  of  the 
trials  for  high  treason  in  1794,  and  something  not  unlike  it 
1  Vol.  II.,  pp.  273,  274. 


454  SPEECHES   IN   DEFENCE   OF   PRISONERS. 

Ch.  XII.  may  be  observed  as  to  the  famous  trials  for  libel  which  led  to 
Fox's  Libel  Act.  Erskine  was  by  far  the  most  popular  and 
effective  advocate  who  ever  appeared  at  the  English  Bar,  but 
the  more  his  speeches  are  studied  the  more  distinctly  will 
it  be  seen  that  he  was  essentially  on  the  side  of  the  law,  and 
that  though  fearless  and  independent  ^he  was  hardly  ever 
brought  into  collision  with  the  judges. 

If  time  and  space  permitted  it  would  not  be  difficult  to 
trace  this  state  of  things  down  to  our  own  times.  Strong 
illustrations  of  it  might  be  drawn  from  the  trials  of  the 
Chartists  in  1841,  1842,  and  1843,  from  some  of  the  trials  of 
a  later  date  for  trade  conspiracies,  and  from  a  long  series  of 
Irish  trials  extending  from  those  which  arose  out  of  the 
rebellion  of  1798  to  those  which  arose  out  of  the  abortive 
rising  of  1848.  As  a  general  rule  counsel  on  all  these 
occasions  have  taken  the  law  as  they  found  it,  and  have  not 
attempted  to  induce  juries  to  break  it. 

Few  stronger  proofs  are  to  be  found  of  the  simplicity  of 
English  taste  in  the  matter  of  making  speeches  than  the 
exceedingly  prosaic  character  of  speeches  in  defence  of 
prisoners.  Even  when  the  circumstances  of  crimes  are 
pathetic  or  terrible  in  the  highest  degree,  the  counsel  on  both 
sides  are  usually  as  quiet  as  if  the  case  was  an  action  on 
a  bill  of  exchange.  This  way  of  doing  business  is  greatly 
to  be  commended.  It  is  impossible  to  be  eloquent  in  the 
sense  of  appealing  to  the  feelings  without  more  or  less  false- 
hood, and  an  unsuccessful  attempt  at  passionate  eloquence 
is  of  all  things  the  most  contemptible  and  ludicrous,  besides 
being  usually  vulgar.  The  critical  temper  of  the  age  has 
exercised  an  excellent  influence  on  speaking  in  the  courts. 
Most  barristers  are  justly  afraid  of  being  laughed  at  and 
looking  silly  if  they  aim  at  eloquence,  and  generally  avoid 
it  by  keeping  quiet. 

The  defence  is  followed  by  the  examination  of  the  prisoner's 
witnesses,  if  any,  the  summing-up  of  his  counsel,  and  the 
reply  of  the  counsel  for  the  Crown,  if  he  is  entitled  to  a  reply. 

'  The  famous  scene  between  him  and  his  old  tutor,  BuUer,  at  the  trial  of 
the  Dean  of  St,  Asaph  is  no  doubt  something  of  an  exception.  See  Vol.  II, 
p.  331. 


SUMMING  UP.  455 

But  upon  these  matters  I  need  add  nothing  to  what  I  have    Ch.  XII. 
already  said. 

The  trial  concludes  by  the  summing-up  of  the  judge. 

This  again  is  a  highly  characteristic  part  of  the  proceed- 
ings, but  it  is  one  on  which  I  feel  it  difficult  to  write.  I 
think,  however,  that  a  judge  who  merely  states  to  the 
jury  certain  propositions  of  law  and  then  reads  over  his 
notes  does  not  discharge  his  duty.  This  course  was  ^  com- 
moner in  former  times  than  it  is  now.  I  also  think  that  a 
judge  who  forms  a  decided  opinion  before  he  has  heard 
the  whole  case,  or  who  allows  himself  to  be  in  any  degree 
actuated  by  an  advocate's  feelings  in  regulating  the  pro- 
ceedings, altogether  fails  to  discharge  his  duty,  but  I  further 
think  that  he  ought  not  to  conceal  his  opinion  from  the 
jury,  nor  do  I  see  how  it  is  possible  for  him  to  do  so  if  he 
arranges  the  evidence  in  the  order  in  which  it  strikes  his 
mind.  The  mere  effort  to  see  what  is  essential  to  a  story,  in 
what  order  the  important  events  happened,  and  in  what 
relation  they  stand  to  each  other  must  of  necessity  point  to 
a  conclusion.  The  act  of  stating  for  the  jury  the  questions 
which  they  have  to  answer  and  of  stating  the  evidence 
bearing  on  those  questions  and  showing  in  what  respects  it 
is  important  generally  goes  a  considerable  way  towards  suggest- 
ing an  answer  to  them,  and  if  a  judge  does  not  do  as  much 
at  least  as  this  he  does  almost  nothing. 

The  judge's  position  is  thus  one  of  great  delicacy,  and  it  is 
not,  I  think,  too  much  to  say  that  to  discharge  the  duties 
which  it  involves  as  well  as  they  are  capable  of  being  dis- 
charged, demands  the  strenuous  use  of  uncommon  faculties, 
both  intellectual  and  moral.  It  is  not  easy  to  form  and 
suggest  to  others  an  opinion  founded  upon  the  whole  of  the 
evidence  without  on  the  one  hand  shrinking  from  it,  or  on 
the  other  closing  the  mind  to  considerations  which  make 
against  it.  It  is  not  easy  to  treat  fairly  arguments  urged  in 
an  unwelcome  or  unskilful  mannner.  It  is  not  easy  for  a 
man  to  do  his  best,  and  yet  to  avoid  the  temptation  to  choose 
that  view  of  a  subject  which  enables  him  to  show  off  his  special 

■■  It  was  followed,  to  take  one  instance  in  a  thousand,  by  Lord  Mansfield  in 
Lord  George  Gordon's  case. 


456  SUMMING  UP. 

Ch.  XII.  gifts.  In  short,  it  is  not  easy  to  be  true  and  just.  That 
the  problem  is  capable  of  an  eminently  satisfactory  solution, 
there  can,  I  think,  be  no  doubt.  Speaking  only  of  those, 
who  are  long  since  dead,  it  may  be  truly  said  that  to  hear 
in  their  happiest  moments  the  summing-up  of  such  judges  as 
Lord  Campbell,  Lord  Chief  Justice  Erie,  or  Baron  Parke, 
was  like  listening  not  only  (to  use  Hobbes's  famous  ex- 
pression) to  "law  living  and  armed,"  but  to  the  voice  of 
Justice  itself. 


LEGAL   PUNISHMENTS.  457 


CHAPTER  XIII. 

HISTORY  OP   LEGAL  PUNISHMENTS. 

Having  in  preceding  chapters  described  the  whole  of  the  ch.  xiii. 

procedure  in  criminal  cases  up  to  the  end  of  the  trial,  I  pro-       

pose  in  this  chapter  to  give  the  history  of  the  various  punish- 
ments inflicted  by  law  for  different  offences. 

The  verdict  of  the  jury  is  followed  by  the  judgment  of  the 
court,  which  is  either  acquittal  or  condemnation.  A 
acquittal  does  not  entitle  the  prisoner  to  be  instantly  dis- 
charged, though,  as  a  fact,  he  usually  is  so  discharged.  ^  In 
strictness,  when  a  man  is  committed  to  gaol  to  be  tried,  he  is 
liable  to  be  detained  till  the  end  of  the  sittings  of  the  next 
commission  of  gaol  delivery  or  Oyer  and  Terminer,  when,  if 
he  is  not  indicted,  he  is  entitled  to  be  discharged  upon  bail, 
unless  it  is  proved  upon  oath  that  the  witnesses  for  the  Crown 
could  not  be  produced,  or  without  bail  if  he  is  tried  and 
acquitted  or  if  he  has  not  been  indicted  and  tried  at  the 
second  sitting  after  his  committal. 

If  the  prisoner  is  convicted  he  is  sentenced  usually  at 
once. 

The  judgments  which  may  be  pronounced  are  as  follows : — 
Death,  penal  servitude,  imprisonment  with  or  without  hard 
labour,  detention  in  a  reformatory  school,  subjection  to  police 
supervision,  whipping,  fines,  putting  under  recognizances. 
The  history  of  these  punishments  is  perhaps  the  most  curious 
part  of  the  history  of  the  criminal  law. 

I    shall   consider  first  the  history  of  the  punishment  of 

1  31  Chas.  2,  0.  2,  s.  6  (the  Habeas  Corpus  Act,  1679). 


45^  PUNISHMENTS   BEFORE   THE   CONQUEST. 

Ch.  XIII.  death  and  of  benefit  of  clergy,  and  the  history  of  the  punish- 
ments  which  by  degrees  were  substituted  for  death.  I  shall 
then  consider  the  history  of  other  punishments,  especially 
those  inflicted  at  common  law  for  misdemeanours. 

As  I  have  already  observed,  the  punishments  inflicted  for 
what  we  now  call  treason  and  felony,  varied  both  before  the 
Norman  Conquest,  and  for  some  time  after  it.  At  some 
periods  it  was  death,  at  others  mutilation,  and  it  is  remark- 
able that  under  William  the  Conqueror  the  punishment  of 
death  was  almost  entirely  replaced  by  mutilation.  Hoveden 
says  that  Henry  I.  "  firmissima  lege  statuit  quod  fures  latro- 
"  cinio  deprehensi  suspendantur,"  but  he  quotes  no  authority, 
and  he  did  not  write  till  perhaps  fifty  years  after  Henry's 
time.  ^  The  Leges  Henrici  Primi  speak  of  some  kinds  of 
theft  as  being  capitally  punished,  and  imply  that  other 
crimes  were  capital.  Mutilation,  however,  is  the  punish- 
ment mentioned  in  the  Assizes  of  Clarendon  and  Northamp- 
ton in  the  time  of  Henry  II. 

Capital  punishments  were  ^  certainly  in  use  in  Richard  I.'s 
time.  In  the  reigns  of  Henry  III.  and  Edward  I.  there  is 
abundant  evidence  that  death  was  the  common  punishment 
for  felony  ;  and  this  continued  to  be  the  law  of  the  land  as  to 
treason  and  as  to  all  felonies,  except  petty  larceny  and 
mayhem,  down  to  the  year  \1826,  subject  to  the  singular  and 
intricate  exceptions  introduced  by  the  law  relating  to  the 
benefit  of  clergy. 

Of  this  branch  of  the  law,  Blackstone  characteristically 
remarks  that  the  English  legislature,  *  "  in  the  course  of  a 
"long  and  laborious  process,  extracted  by  noble  alchemy  rich 
"  medicines  out  of  poisonous  ingredients." 

According  to  our  modern  views  it  would  be  more  correct  to 
say  that  the  rule  and  the  exception  were  in  their  origin 
equally  crude  and  barbarous,  that  by  a  long  series  of  awkward 
and  intricate  changes  they  were  at  last  worked  into  a  system 

^  "  Furtum  probatum  et  morte  dignum  "  is  mentioned  as  one  of  the  crimes 
which  "  mittant  hominem  in  misericordii  regis  "  (Thorpe,  i.  518).  So  "De 
"  furto  autem,  et  de  hiis  quae  sunt  mortis,  faciat,"  &c.,  p.  561. 

^  A  record  is  quoted  by  Sir  F.  Palgrave  of  the  10th  Eichard  I.  in  which  a 
woman  was  sentenced  to  be  burnt  lor  murder.— Proo/s  wnd  Illustrations, 
clxxxv.  (11).  3  See  7  &  8  Geo.  4,  c.  26,  ss.  6,  7. 

*  4  Bl.  Com.  p.  364  (2nd  edition). 


BENEFIT   OF   CLERGY.  459 

which  was  abolished  in  a  manner  as  clumsy  as  that  in  which  Ch.  Xlll. 
it  was  constructed.  

1  The  history  of  the  subject  falls  naturally  into  three  heads, 
namely,  first,  the  history  of  the  privilege  itself,  next  the 
history  of  its  gradual  extension  to  all  persons  whatever,  and 
lastly,  the  history  of  the  exclusion  from  it  of  a  large  number 
of  offences.  The  two  processes  last  mentioned  to  some  extent 
overlapped  each  other,  but  it  is  obvious  that  as  the  privilege 
ceased  to  be  confined  to  a  comparatively  small  class  of  persons, 
it  would  be  necessary  to  confine  it  to  a  comparatively  small 
number  of  offences. 

Privilege  of  clergy  consisted  originally  in  the  right  of 
the  clergy  to  be  free  from  the  jurisdiction  of  lay  courts, 
and  to  be  subject  to  the  ecclesiastical  courts  only,  and 
it  might  be  compared  to  the  privilege  which  European 
British  subjects  in  India  still  possess  of  being  tried  in  some 
cases  by  tribunals  different  from  those  by  which  natives 
would  be  tried  in  similar  cases,  and  also  to  the  privilege 
claimed  by  British  and  other  foreign  subjects  in  Turkey, 
in  Egypt,  and  in  China,  of  being  tried  before  their  own 
courts. 

The  following  is  Bracton's  account  of  it,  "  ^  When  a  clerk  of 
"  whatever  order  or  dignity  is  taken  for  the  death  of  a  man 
''  or  any  other  crime,  and  imprisoned,  and  an  application  is 
"  made  for  him  in  the  Court  Christian  by  the  ordinary  "  .  .  .  . 
"  the  prisoner  must  be  immediately  delivered  up  without 
"  making  any  inquisition.  He  must  not,  however,  be  set  at 
"  liberty  and  allowed  to  wander  about  the  country,  but  is  to 
"  be  safely  kept,  either  in  the  bishop's  prison,  or  in  the  King's 
"  prison  if   the   ordinary  wishes,  till    he  has  duly  purged 

^  The  subject  is  described  at  full  length  and  with  the  greatest  technical 
minuteness  of  detail  by  Hale  (2  P.  G.  323—390).  Blackstone  (4  Com.  358)  has 
given  (principally  from  Hale)  an  account  of  the  subject  as  it  stood  in  his  time  ; 
and  an  account  of  the  law  as  it  stood  in  1826,  just  before  benefit  of  clergy  was 
abolished,  is  given  in  1  Chitty's  OrimAmal  Law,  666 — 90.  Hale's  account  of 
the  law  is  rendered  prolix  and  intricate  by  the  necessity  under  which  he  lay 
of  referring  to  a  number  of  minute  and  capricious  distinctions  which  in  his 
time  applied  to  the  law  relating  to  accessories  and  principals  and  to  the  varied 
provisions  of  the  statutes  relating  to  particular  crimes,  as  to  cases  ended  by 
conviction,  by  indictment,  by  appeal,  by  standing  mute,  by  pleading  guilty, 
or  by  challenging  more  than  twenty  jurors.  Blackstone  was  placed  under 
the  same  difficulty,  though  to  a  smaller  extent. 

^  Br.  De  Cor.  ch.  ix.  II.  298. 


460  ECCLESIASTICAL  PURGATION. 

Ch.  XIII.  "  himself  from  the  accusation  laid  upon  him,  or  has  failed  to 
"  purge  himself,  for  which  he  ought  to  be  degraded." 

Ecclesiastical  purgation  is  thus  described,  "  ^  The  trial  was 
"  held  before  the  bishop  in  person,  or  his  deputy,  and  by  a 
"  jury  of  twelve  clerks,  and  there  first  the  party  himself  was 
"  required  to  make  oath  of  his  own  innocence ;  next  there  was 
"  to  be  the  oath  of  twelve  compurgators,  who  swore  they 
"  believed  he  spoke  the  truth ;  then  witnesses  were  to  be 
"  examined  upon  oath,  but  upon  behalf  of  the  prisoner  only, 
"  and  lastly,  the  jury  were  to  bring  in  their  verdict  upon  oath, 
"  which  usually  acquitted  the  prisoner,  otherwise,  if  a  clerk, 
"  he  was  degraded  or  put  to  penance."  Probably  this' 
strange  proceeding  might  be  justified  by  the  singular  notions 
which  prevailed  in  the  civil  law  as  then  understood  as  to 
^  evidence.  The  burden  of  proof  was  on  the  clerk  who  had 
to  make  his  purgation,  and  it  might  be  thought  as  improper 
to  allow  evidence  to  be  given  against  him  by  the  king,  as  to 
allow  evidence  to  be  produced  against  the  king,  when  the 
burden  of  proving  guilt  lay  on  him.  However  this  may  have 
been,  the  claim  of  the  ordinary  in  Bracton's  time  went  so  far  as 
to  require  that  the  clerk  should  be  delivered  up  to  him  as  soon 
as  he  was  imprisoned  on  suspicion  of  any  crime  whatever. 

In  the  course  of  the  three  centuries  which  followed 
Bracton,  this  claim  was  considerably  restricted  by  the  legis- 
lature. 

The  Statute  of  Westminster  the  First  (3  Edw.  1,  A.D.  1275) 
^  was  interpreted  to  mean  that  the  prisoner  must  be  indicted 
before  he  could  be  claimed,  and  afterwards  in  the  reign  of 
Henry  VI.  it  was  settled  by  the  practice  of  the  courts  that 
a  clerk  must  be  convicted  before  he  could  claim  his  clergy. 
This  was  at  once  an  advantage  to  the  prisoner,  who  had  the 
chance  of  being  acquitted,  and  a  restriction  on  the  privilege 
of  the  clergy  as  a  separate  order  in  the  state,  as  it  subjected 
them  to  the  lay  tribunals. 

In  the  next  place  the  courts  exercised  a  discretion  in  de- 

'  E.  V.  Burridge  (1735) ;  3  Peere  "Williams,  447.  See,  too,  Searle  v. 
Williams,  Hobart,  288,  p.  291  (1620)  ;  Staundforde,  Purgacion,  138.  Hobart 
speaks  of  purgation  as  "  turning  the  solemn  trial  of  truth  hy  oath  into  a 
"  ceremonious  and  formal  lie." 

2  See  p.  335,  sup.  ;  also  p.  349,  &c.  s  2  Hale,  377. 


STATUTE   PRO   CLERO— BIGAMI. 


461 


livering  the  clerk  to  the  ordinary.  He  might  be  delivered  either  Ch.  XIII. 
to  make  his  purgation,  or  "  absque  purgatione,"  in  which  latter 
case  he  was  to  be  imprisoned  in  the  bishop's  prison  for  life. 

The  privilege  was  originally  confined  to  those  who  had 
"habitum  et  tonsuram  clericalem,"  but  in  1350,  by  the 
25  Edw.  3,  St.  3  (called  the  statute  pro  clero),  it  was 
enacted  that  "all  manner  of  clerks,  as  well  secular  as  reli- 
"  gious,  which  shall  from  henceforth  be  convict  before  the 
"  secular  justices  .  .  .  shall  from  henceforth  freely  have  and 
"  enjoy  the  privileges  of  Holy  Church."  The  "  secular 
"  clerks  "  here  mentioned  were,  ''■  it  is  said,  "  persons  not  strictly 
"  in  orders,  but  assistants  to  them  in  doing  Divine  offices, 
such  as  Doorkeepers,  Eeaders,  Exorcists,  and  Sub-deacons,  and 
the  statute  is  said  to  have  been  passed  because  "  the  said  pre- 
"  lates  have  grievously  complained,  praying  thereof  remedy." 
It  seems,  however,  that  whether  by  the  construction  given  to 
this  statute  or  otherwise,  the  courts  extended  the  privilege  to 
every  one  who  could  read,  whether  he  had  the  clerical  dress 
and  tonsure  or  not.  This  apparent  extension  of  the  privi- 
lege greatly  diminished  its  value  to  the  clergy  as  a  distinct 
caste,  but  considerable  traces  of  the  old  clerical  view  of  the 
subject  remained  for  centuries.  The  most  important  and 
least  amiable  of  them  was  that  all  women  (except,  till  the 
Eeformation,  professed  nuns)  were  for  centuries  excluded 
from  the  benefit  of  clergy  because  they  were  incapable 
of  being  ordained.  Another  exception,  which  may  almost  be 
called  grotesque,  was  that  "bigamus"  was  excluded  from 
clergy.  This  is  recognised  by  two  statutes,  4  Edw.  1,  c.  5  (1276), 
and  18  Edw.  3,  c.  2  (1344).  "Bigamus  "  was  not  a  bigamist 
in  our  sense  of  the  word,  but  a  man  who  "  hath  married  two 
"wives  or  one  widow."  By  the  last-mentioned  statute  the 
bigamy  was  to  be  tried  in  the  ecclesiastical  court.  This  strange 
rule  was  repealed  in  1547  by  1  Edw.  6,  c.  12,  s.  16,  which 
allows  clergy  to  "  bigami,"  "  although  they  or  any  of  them 
"  have  been  divers  and  sundry  times  married  to  any  single 
"woman  or  single  women,  or  to  any  widow  or  widows,  or 
"  to  two  wives  "  (?  at  once)  "  or  more." 

1  Lord  Holt  in  Armstrong  v.  Lisle.  Kelyng,  p.  143  (edition  of  1873)  ; 
old  edition,  p.  99. 


462         BRAIRDING,  EXTENSION  TO  WOMEN  AND  ILLITERATE  PERSONS. 

Ch.  XIII.  In  1487  (4  Hen.  7,  c  13)  it  was  enacted  that  every 
person  convicted  of  a  clergyable  felony  should  be  branded  on 
the  brawn  of  hie  thumb  with  an  M  if  his  case  was  murder, 
and  a  T  if  it  was  theft,  and  that  if  any  person  claimed  clergy 
a  second  time  (which  fact  the  brand  would  prove),  he  should 
be  denied  it  if  he  was  not  actually  in  orders,  or  if,  being 
actually  in  orders,  he  failed  within  a  day  to  be  assigned  by 
the  judge  to  produce  either  his  letters  of  orders  or  a  certifi- 
cate of  his  ordination  from  the  ordinary.  This  distinction 
was  abolished  by  '  28  Hen.  8,  c.  1,  s.  7,  in  1536,  but  it 
was  considered  to  be  revived  by  1  Edw.  6,  c.  12,  s.  14 
(A.D.  1547),  which  also  gave  every  peer  of  the  realm  ("though 
"  he  cannot  read ")  a  privilege  equivalent  to,  though  not 
identical  with,  benefit  of  clergy.  The  peer  was  to  be  "  ad- 
"  judged,  deemed,  taken,  and  used  for  the  first  time  only  to 
"  all  intents,  constructions,  and  purposes  as  a  clerk  convict," 
and  was  to  be  "  in  case  of  a  clerk  convict  which  may  make 
"  purgation,  without  any  burning  in  the  hand,  loss  of  inherit- 
"  ance,  or  corruption  of  his  blood."  When  benefit  of  clergy 
was  abolished  in  1827,  by  7  &  8  Geo.  4,  c.  28,  this  act 
was  overlooked,  and  upon  the  occasion  of  Lord  Cardigan's 
trial  in  1841  it  was  doubted  whether,  if  he  were  convicted, 
he  would  not  be  entitled  to  the  benefit  of  it,  notwithstanding 
the  act  of  1827.  The  question  was  finally  set  at  rest  by 
4  &  5  Vic.  c.  22,  which  provided  that  peers  accused  of 
felony  should  be  liable  to  the  same  punishment  as  other 
persons,  and  repealed  the  act  of  Edward  VI. 

By  the  18  Eliz.  c.  7,  ss.  2, 3  (1576),  purgation  was 
abolished,  and  it  was  enacted  that  persons  taking  the  benefit 
of  clergy  should  be  discharged  from  custody  subject  to  a 
power  given  to  the  judge  to  imprison  them  for  any  term  not 
exceeding  a  year. 

In  1622,  by  21  Jas.  1,  c.  6,  women  obtained  a  privilege 
analogous  to  that  of  clergy  in  the  case  of  larceny  of  goods 
worth  more  than  Is.  and  not  more  than  10s. ;  and  in  1692,  by  4 
Will.  &  Mary,  c.  9,  they  were  put  on  the  same  footing  as  men. 

In  1705,  by  5  Anne,  c.  6,  the  necessity  for  reading  was 
abolished. 

^  Made  perpetual  by  32  Hen.  8,  o.  3.  iJ.  8. 


SUMMARY    OF    LAW   AS    TO    CLERGY    IN    i8tH   CENTURY.  463 

In  1717  it;  was  enacted  by  ^4  Geo.  1,  c.  11,  that  persons  Ch.  XIII 
guilty  of  clergyable  larcenies  should  be  liable  to  be  trans- 
ported  for  seven  years  instead  of  being  branded  or  whipped. 

In  1779,  by  19  Geo.  3,  c.  74,  s.  3,  branding  was  practically 
abolished,  though  the  words  of  the  act  are  not  absolute. 

Shortly,  the  form  which  the  law  relating  to  benefit  of  clergy 
had  assumed  at  the  beginning  of  the  eighteenth  century 
was  this : — 

All  felonies  were  either  clergyable  or  not. 

Every  one  charged  with  a  clergyable  felony  was  entitled  to 
benefit  of  clergy  for  his  first  offence,  and  clerks  in  orders 
were  entitled  thereto  for  any  number  of  offences. 

Benefit  of  clergy  consisted  in  being  excused  from  capital 
punishment,  but  the  person  who  claimed  it  was,  till  1779 
(unless  he  was  a  peer  or  a  clerk  in  orders),  branded  in  the 
hand,  and  might  be  imprisoned  for  a  term  not  exceeding  one 
year.  If  his  offence  was  larceny  he  might  be  transported  for 
seven  years.  This  result  had  been  reached  by  the  long  series 
of  changes  above  described. 

The  great  importance  of  benefit  of  clergy  in  the  history  of 
the  criminal  law  consists  in  the  fact  that  the  existence  of  the 
privilege  determined  the  form  taken  by  our  legislation  on  the 
whole  subject  of  legal  punishments  for  serious  common 
offences.  The  number  of  felonies  at  common  law  was  but 
small.  In  Coke's  Third  Institute  only  seven  are  mentioned, 
namely  homicide  (in  its  two  forms  of  murder  and  man- 
slaughter), rape,  burglary,  arson,  robbery,  theft,  and  mayhem. 
All  of  these  except  petty  larceny  (stealing  things  worth  less 
than  twelvepence)  and  mayhem  were  punished  with  death, 
and  were  originally  subject  to  the  privilege  of  clergy. 

The  result  of  this  was  to  bring  about  for  a  great  length  of 
time  a  state  of  things  which  must  have  reduced  the  adminis- 
tration of  justice  to  a  sort  of  farce.  Till  1487  any  one  who 
knew  how  to  read  might  commit  murder  as  often  as  he 
pleased,  with  no  other  result  than  that  of  being  delivered  to 
the  ordinary  to  make  his  purgation,  with  the  chance  of  being 
delivered  to  him  "absque  purgatione."  That  this  should 
have  been  the  law  for  several  centuries  seems  hardly  credible, 
1  And  see  6  Geo.  1,  c.  23. 


464  CHIMES  NOT   CLERGYABLE. 

Ch.  XIII.  but  there  is  no  doubt  that  it  was.  Even  after  1487  a  man 
who  could  read  could  commit  murder  once  with  no  other 
punishment  than  that  of  having  M  branded  on  the  brawn  of 
his  left  thumb,  and  if  he  was  a  clerk  in  orders  he  could 
till  1547  commit  any  number  of  murders  apparently  without 
being  branded  more  than  once. 

The  claim  of  the  clergy  to  exemption  from  the  jurisdiction 
of  the  lay  courts  was  however  never  admitted  to  its  full 
extent  by  the  common  law.  ^It  is  said  that  high  treason 
against  the  king  was  never  clergyable,  and  this  is  confirmed 
by  the  words  of  the  statute  de  dero  (25  Edw.  3,  st.  3, 
A.D.  1350)  which  extends  benefit  of  clergy  to  "  any  treason  or 
"  felonies  touching  other  persons  than  the  king  himself  or  his 
"  royal  majesty." 

^  There  were  also  two  forms  of  felony  which  were  excluded 
from  benefit  of  clergy  at  common  law,  namely,  "  Insidiatio 
"  viarum,  et  depopulatio  agrorum,"  or  highway  robbery  and 
wilful  burning  of  houses. 

These,  however,  appear,  according  to  Hale,  to  have  been 
the  only  exceptions  to  benefit  of  clergy  till  the  reign  of 
Henry  VII.,  when  a  statute  was  passed,  12  Hen.  7,  c.  7 
(1496),  depriving  of  clergy  laymen  committing  petty  treason 
by  "  prepensedly  murdering  their  lord,  master,  or  sovereign 
"  immediate."  The  act  is  drawn  in  a  singular  manner.  The 
preamble  recites  that  whereas  "  abominable  and  wilful  pre- 
"  pensed  murders  be  by  the  laws  of  God  and  of  natural  reason 
"  forbidden,  and  are  to  be  eschewed,  yet  not  the  less,  many 
"  and  divers  unreasonable  and  detestable  persons  lacking 
"  grace,  wilfully  commit  murder,"  .  ..."  in  trust  to  eschew  the 
"  peril  and  execution  of  the  law  by  the  benefit  of  their  clergy." 
It  then  goes  on  to  state  that  in  particular  one  Grame  had  then 
lately  murdered  his  master  Tracy,  and  provides  that  Grame 
is  to  be  drawn  and  hanged  as  if  he  were  no  clerk,  and  that  simi- 
lar offenders  shall  for  the  future  be  treated  in  the  same  way. 

In  1512,  another  statute  (4  Hen.  8,  c.  2)  was  passed, 
depriving  persons  of  clergy  who  committed  murder  in  churches, 
highways,  &c. 

In  1531  (23  Hen.  8,  c.  1,  ss.  3,  4)  every  one  convicted 
>  2  Hale,  350.  2  lb.  333, 


LEGISLATION   OF  THE  TUDORS.  465 

of  petty  treason,  or  "  for  any  wilful  murder  with  malice  pre-  Ch.  XIII. 
"  pensed,"  or  for  robbing  churches,  chapels,  or  other  holy 
places,  or  of  certain  kinds  of  robbery  or  certain  kinds  of 
arson,  was  excluded  from  clergy,  except  clerks  in  orders,  who, 
however,  were  to  be  imprisoned  for  life,  unless  (a  somewhat 
impotent  conclusion)  they  could  find  two  sureties  in  201. 
each  for  their  good  behaviour. 

In  1536  (28  Hen.  8,  c.  15)  piratical  offences  were 
excluded  from  clergy.  There  was  a  question  whether 
clergy  was  not  restored  in  these  cases  by  1  Edw.  6,  c.  12, 
and  ^Hale  was  with  some  doubt  of  opinion  that  it  was  restored 
in  some  cases  which  might  be  described  as  piratical,  but  that 
in  cases  which  we  should  now  describe  as  piracy  by  the  law 
of  nations  clergy  was  not  restored,  if  it  ever  existed  (which 
he  denies). 

In  1547  (n  Edw.  6,  c.  12  s.  10)  benefit  of  clergy  was 
taken  away  in  all  cases  of  murder,  cases  of  burglary  and 
housebreaking,  in  which  any  person  was  in  the  house  at  the 
time  and  was  put  in  fear,  highway  robbery,  horse  stealing, 
and  robbing  churches.  The  necessity  for  using  the  word 
"  murdravit "  in  an  indictment  (which  was  so  essential  that 
murderavit  was  a  fatal  flaw)  was  based  on  this  statute. 
If  the  indictment  was  "  felonice  et  ex  maliti§,  sui  praecogitata 
"  inter  fecit,"  or  "felonice  murdravit,''  it  was  an  indictment 
for  manslaughter  only  which  was  clergyable.  What  an  in- 
dictment for  "  murderavit "  would  have  amounted  to  I  do 
not  know. 

In  1565  (8  Eliz.  c.  4)  clergy  was  taken  away  in  cases  of 
"  felonious  taking  of  any  money,  goods,  or  chattels  from  the 
"  person  of  any  other  privily  without  his  knowledge."  But 
this  was  interpreted  to  mean  above  the  value  of  a  shilling. 

In  1576  (18  Eliz.  c.  7)  rape  and  burglary  were  excluded 
from  clergy,  ^  but  the-  part  of  the  statute  which  relates  to 
burglary  was  very  unskilfully  adapted  to  the  statutes  of 
Edward  VI.  and  Philip  and  Mary. 

In  1597  (39  Eliz.  c.  9)  abduction  with  intent  to  marry, 

1  2  H.  P.  0.  369—71. 

2  4  &  5  Ptil.  &  Mary,  c.  4.  applied  to  accessories  in  these  cases. 

3  See  2  Hale,  360—4. 

VOL.   I.  H  H 


466  bale's  account  of  cleegy. 

Ch.xiii.  which  by  3  Hen.  7,  c.  2  was  a  clergyable  felony,  was 
deprived  of  the  benefit  of  clergy. 

Finally,  by  22  Chas.  2,  c.  5  (1671)  stealing  clothes  off 
the  racks,  and  stealing  the  king's  stores  were  deprived  of 
clergy. 

These  are  all  the  cases  enumerated  by  Hale  in  which  clergy 
was  taken  away  from  common  law  crimes  down  to  his  time, 
but  many  statutory  felonies  had  also  been  created  which,  for 
the  sake  of  brevity,  I  have  not  noticed.  These  statutes,  as 
well  as  those  which  I  have  noticed,  were  worded  in  all  sorts  of 
ways.  A  trial  might  end,  it  must  be  remembered,  either  by 
the  accused  person  standing  mute  and  being  pressed  to  death, 
or  by  his  challenging  too  many  jurors  and  being  hanged,  or 
by  his  pleading  guilty,  or  by  his  being  convicted  and  par- 
doned, or  by  his  being  convicted  and  attainted.  If  a  statute 
taking  away  clergy  did  not  expressly  mention  all  these  pos- 
sible cases,  and  take  away  clergy  in  all  of  them,  both  from 
the  principal  and  from  his  accessories  both  before  and  after, 
clergy  remained  in  every  omitted  case.  Hence  questions 
arose  on  the  special  wording  of  every  statute,  as  to  whether 
it  ousted  an  offender  of  clergy  not  only  if  he  was  convicted, 
but  if  he  pleaded  guilty,  if  he  stood  mute,  &c.,  and  similarly 
as  to  his  accessories.  Hardly  any  branch  of  the  law  was  so 
technical  and  so  full  of  petty  quibbles  as  this.  The  detailed 
statement  of  them  makes  a  large  part  of  Hale  nearly  un- 
readable. They  were  abolished  by  two  successive  statutes, 
3  Will.  &  Mary,  c.  9,  s.  2  (a.d.  1691),  which  enacted  that  if 
any  person  were  convicted  of  a  felony,  excluded  from  benefit  of 
clergy  "  by  virtue  of  any  former  statute,"  if  convicted  or  at- 
tainted, the  exclusion  should  extend  to  cases  in  which  they 
stood  mute,  challenged  too  many  jurors,  or  were  outlawed. 
This  was  extended  to  accessories  by  1  Anne,  st.  2,  c.  9,  and  by 
7  Geo.  4,  c.  64,  s.  7,  to  all  statutory  felonies  subsequent  to 
the  act  of  William  and  Mary,  or  afterwards  to  be  created. 

All  this  legislation  shows  that  the  early  criminal  law  was 
extremely  severe,  that  its  severity  was  much  increased  under 
the  Tudors,  but  that  it  varied  little  from  the  time  of  Elizabeth 
to  the  end  of  the  seventeenth  century.  Before  noticing  the 
legislation  of  the  eighteenth  century  on  this  subject,  it  will  be 


WOllKING  OF  THE  SYSTEM.  4^7 

desirable  to  sum  up  what  has  been  said.  The  result  of  it  is  as  ^^h-  XIII. 
follows : — Towards  the  end  of  the  seventeenth  century  the  fol- 
lowing crimes  were  excluded  from  benefit  of  clergy,  and  were 
thus  capital  whether  the  offender  could  read  or  not :  ■  high 
treason  (which  had  always  been  so),  petty  treason,  piracy, 
murder,  arson,  burglary,  housebreaking  and  putting  in  fear, 
highway  robbery,  horse  stealing,  stealing  from  the  person 
above  the  value  of  a  shilling,  rape  and  abduction  with  intent 
to  marry.  In  the  case  of  persons  who  could  not  read,  all 
felonies,  including  manslaughter,  every  kind  of  theft  above 
the  value  of  a  shilling,  and  all  robbery  were  capital  crimes. 
It  is  difficult,  if  not  impossible,  to  say  how  this  system 
worked  in  practice.  No  statistics  as  to  either  convictions  or 
executions  were  kept  then,  or  till  long  afterwards.  A  few 
vague  generalities,  with  here  and  there  a  piece  of  positive 
evidence  are  all  that  I  at  least  can  refer  to.  I  will  mention 
one  specimen  of  each.  There  are  still  preserved  at  Exeter 
Castle  many  of  the  depositions  and  other  records  of  the 
Courts  of  Quarter  Sessions,  held  there  from  the  latter  part  of 
the  reign  of  Elizabeth — they  begin  in  1592.  From  these 
materials  Mr.  Hamilton  has  compiled  a  History  of  the  Quarter 
Sessions  from  Elizabeth  to  Anne.  The  following  is  one  result 
at  which  he  arrives,  "  ^  At  the  Lent  Assizes  of  1598,  there 
"  were  134  prisoners,  of  whom  seventeen  were  dismissed  with 
"  the  fatal  S.  P.,  it  being  apparently  too  much  trouble  to 
"  write  sus.  per  coll.  Twenty  were  flogged  ;  one  was  liberated 
"  by  special  pardon  and  fifteen  by  general  pardon ;  eleven 
"  claimed  benefit  of  clergy  and  were  consequently  branded  and 
"  set  free,  '  legunt  uruntur  et  deliberantur.'  At  the  Epiphany 
"  Sessions  preceding  there  were  sixty-five  prisoners,  of  whom 
"  eighteen  were  hanged.  At  Easter  there  were  forty-one 
"  prisoners,  and  twelve  of  them  were  executed.  At  the  Mid- 
"  summer  sessions  there  were  thirty-five  prisoners  and  eight 
"  hanged.  At  the  Autumn  Assizes  there  were  eighty-seven  on 
"  the  calendar  and  eighteen  hanged.  At  the  October  Sessions 
"there  were  twenty-five,  of  whom  only  one  was  hanged. 
"  Altogether  there  were  seventy-four  persons  sentenced  to  be 
"  hanged  in  one  county  in  a  single  year,  and  of  these  more 
'  Hamilton's  History  of  Quarter  Sessions,  pp.  30 — 1. 

H   H   2 


468  QUARTER   SESSIONS   UNDER   ELIZABETH. 

Ch.  XIII.  "  than  one-lialf  were  condemned  at  Quarter  Sessions."     Mr. 
Hamilton  gives  ^  a  copy  of  the  calendar  for  the  Midsummer 
Sessions  for  1598.     It  appears  that  five  persons  were  con- 
victed of  sheep-stealing.      John    Capron  was  sentenced  to 
death.      Stephen    Juell,    Andrew    Penrose,    and    Anthony 
Shilston  had  their  clergy.      Gregory  Tulman  was   flogged. 
In  Tulman' s  case  the  sheep  was  probably  valued  at  less,  or 
charged  in  the  indictment  as  being  of  less  value,  than  a 
shilling.      If  the   average  number  of    executions  in  each 
county  was  only  twenty,  or  a  little  more  than  a  quarter  of  the 
number  of  capital  sentences  in  Devonshire  in   1598,  this 
would  make  800   executions  a  year  in  the   forty  English 
counties.     The  number  of  executions  was  notoriously  very 
great.     A  remarkable  illustration  of  this  is  afforded  by  the 
remark   with  which   Coke    concludes    his   Third  Institute. 
"  What  a  lamentable  case  it  is  to  see  so  many  Christian  men 
"  and  women  strangled  on  that  cursed  tree  of  the  gallows, 
"  insomuch  as  if  in  a  large  field  a  man  might  see  together  all 
"  the  Christians  that,  but  in  one  year  throughout  England 
"  come  to  that  untimely  and  ignominious  death,  if  there  were 
"  any  spark  of  grace  or  charity  in  him,  it  would  make  his 
"  heart  to  bleed  for  pity  and  compassion."     He  then  points 
out  three   remedies :   education,   laws    to    set   the    idle  to 
work,  and  "that  forasmuch  as  many  do  offend  in  hope  of 
"  pardon,  that  pardons  be  very  rarely  granted."     This  con- 
trasts oddly  with  the  philanthropic  tone    of  the   preceding 
extract. 

When  all  the  restrictions  upon  benefit  of  clergy  had  been 
taken  off  at  the  beginning  of  the  eighteenth  century,  so  that 
women  were  entitled  to  it  as  well  as  men,  and  those  who  could 
not  read,  as  well  as  those  who  could,  the  punishment  for  all 
the  common  offences  became  slight.  If  a  man  was  not  hung 
he  was  discharged,  or  at  most  imprisoned  for  a  year  with- 
out hard  labour,  though  under  circumstances  likely  to 
injure  both  his  health  and  his  morals.  At  the  same  time 
the  rapidly  increasing  trade  and  wealth  of  the  country 
brought  to  light  the  great  defects  in  the  criminal  law  as  it 
then  stood,  and  especially  the  crudity  and  meagreness  of  its 
'■  History  of  Quarter  Sessions,  p.  33. 


LEGISLATION   OF    i8tH   CENTURY.  469 

provisions,  of  which  I  shall  give  a  fuller  account  in  relating  Ch.  XIII. 
the  history  of  the  substantive  law. 

I  do  not  think,  however,  that  these  defects  were  recognised 
as  such.  The  fact  that  the  revolutions  of  the  17th  century- 
had  been  conducted  with  an  almost  superstitious  respect 
for  law,  and  that  the  party  opposed  to  the  encroachments 
(as  they  said)  of  royal  power,  had  always  taken  their  stand 
upon  what  they  called  the  good  old  laws  of  England,  and 
the  fact  that  the  law  was  professedly  based  upon  what  were 
regarded  as  the  highest  standards  of  truth  and  goodness, 
had  surrounded  the  law  with  a  degree  of  veneration,  which, 
in  these  days,  it  is  not  easy  to  understand,  but  which  is 
represented  probably  with  little  exaggeration  in  the  courtly 
and,  indeed,  reverential  language  of  Blackstone,  who  scarcely 
ever  misses  an  opportunity  of  extolling  the  system  which 
he  describes,  though  he  may  ^"occasionally  find  room  to 
"  remark  some  particulars  that  seem  to  want  revision  and 
"  amendment." 

Hence,  the  alterations  made  in  the  criminal  law  by  the 
legislation  of  the  eighteenth  century  preserved  its  form  and 
did  not  greatly  alter  its  substance.  The  benefit  of  clergy 
having  been  extended  at  the  beginning  of  the  century  to  all 
persons  whatever,  it  was  in  the  course  of  the  century  taken 
away  from  a  great  variety  of  offences.  This  in  some  cases 
simply  extended  the  old  law  relating  to  women  and  to  illite- 
rate persons  to  all  persons  whatever.  Sheep-stealing,  for 
instance,  though  clergyable,  was  from  the  earliest  times  a 
capital  felony  if  the  sheep  stolen  was  over  one  shilling  in 
value  ;  and,  as  ^  Mr.  Hamilton  tells  us,  one  man  was  hanged 
for  it,  and  two  had  their  clergy  at  the  Exeter  Midsummer 
Sessions   in    1598.     By  Hhe   14  Geo.   2,  c.  6  (1741),  and 

^  4  Bl.  Com.  3. 

^  Sist.  Quarter  Sessions,  p.  33.  Mr.  Hamilton  observes  as  to  the  value 
of  steep  in  James  I.  's  time  the  King  was  entitled  to  have  sheep  at  6s.  Sd. 
a-pieee.  ...  It  is  probable  that  the  average  price  of  sheep  at  that  time 
■was  nearer  that  given  by  Justice  Shallow,  "A  score  of  good  ewes  maybe 
"worth  £10." 

3  The  first  of  these  Acts  applies  to  "  sheep  and  other  cattle.  '  The  second 
defines  "cattle"  to  mean  "bull,  cow,  ox,  steer,  buUock,  heifer,  calf,  and 
"lamb,  as  well  as  sheep,  and  no  other  cattle  whatever."  It  is  curious  that 
pigs  have  never  met  with  any  special  recognition  or  protection  from  the  law, 
nor,  I  think,  donkeys  or  mules. 


47°  FELONIES  WITHOUT  CLERGY  IN    i8tH  CENTURY. 

Ch.  XIII.  15  Geo.  2,  c.  34  (1742)  all  sheep-stealers  were  deprived  of 
benefit  of  clergy.  The  process,  however,  was  carried  much 
beyond  removing  benefit  of  clergy  from  offences  formerly 
clergyable.  The  severity  of  the  criminal  law  was  greatly 
increased  all  through  the  eighteenth  century  by  the  creation 
of  new  felonies  without  benefit  of  clergy.  In  the  second 
edition  of  the  •"■  Commentaries,  published  in  1769,  Blackstone 
says  that  "  among  the  variety  of  actions  which  men  are  daily 
"  liable  to  commit  no  less  than  160  have  been  declared  by 
"  Act  of  Parliament  to  be  felonies  without  benefit  of  clergy." 
This  passage  has  often  been  quoted,  but  it  must  be  observed 
that  the  number  of  capital  offences  on  the  statute-book 
is  no  test  of  its  severity.  A  few  general  enactments 
would  be  much  more  severe  than  a  great  number  of 
special  ones.  A  general  enactment  that  grand  larceny 
should  be  excluded  from  benefit  of  clergy  would  have  been 
infinitely  more  severe  than  fifty  acts  excluding  the  stealing  of 
fifty  different  sorts  of  things  from  the  benefit  of  clergy. 
By  a  great  number  of  statutes  the  forgery  of  different  spe- 
cified documents  was  made  felony  without  benefit  of  clergy. 
Different  statutes  provided,  for  instance,  for  the  forgery  of 
Exchequer  bills,  South  Sea  bonds,  certain  powers  of  attorney, 
&c.  The  real  severity  of  a  single  general  Act  about  forgeries 
would  have  been  much  greater  than  that  of  these  numerous 
scattered  provisions,  each  of  which  went  to  swell  the  number 
of  capital  offences.  Moreover,  the  160  offences  mentioned 
by  Blackstone  might  probably  be  reduced  by  careful  classi- 
fication to  a  comparatively  small  number.  For  instance, 
I  know  not  how  many  offences  of  the  160  are  included  in 
what  was  known  as  the  Black  Act  (9  Geo.  1,  c.  27,  1722). 
This  Act  provided,  amongst  other  things,  that  if  any  persons 
armed  or  having  their  faces  blacked,  or  being  otherwise  dis- 
guised, should  appear  in  any  forest,  &c.,  or  in  any  warren  or 
place  where  hares  or  rabbits  were  usually  kept,  or  in  any 
high  road,  open  heath,  common,  or  down,  or  should  unlaw- 
fully and  wilfully  hunt,  wound,  kill,  destroy,  or  steal  any 
red  or  fallow  deer,  &c.,  they  should  be  guilty  of  felony, 
without  benefit  of  clergy.     The  part  of  this  provision  which  I 

4  Com.  IS. 


WORKING   OF  SYSTEM  UNDEE  GEOBGE   III.  4/1 

have  quoted  creates  i  fifty-four  capital  offences,  for  it  forbids  Ck.  Xlll. 
three  classes  of  persons  to  do  any  one  of  eighteen  acts. 
However,  after  making  all  deductions  on  these  grounds,  there 
can  be  no  doubt  that  the  legislation  of  the  eighteenth  cen- 
tury in  criminal  matters  was  severe  to  the  highest  degree, 
and  destitute  of  any  sort  of  principle  or  system.  In  practice 
the  punishment  of  death  was  inflicted  in  only  a  small  pro- 
portion of  the  cases  in  which  sentence  was  passed.  The 
persons  capitally  convicted  were  usually  pardoned  condition- 
ally on  their  being  transported  either  to  the  American  or 
afterwards  to  the  Australian  colonies  for  life  or  for  a  long 
term  of  years.  These  conditional  pardons  were  recognised  by 
the  Habeas  Corpus  Act  (31  Ghas.  2,  c.  2,  ss.  13,  14),  and  used 
to  be  granted  by  the  king  through  the  Secretary  of  State 
upon  the  recommendation  of  the  Judges  of  Assize.  This 
being  thought  circuitous  and  dilatory,  it  was  enacted  in  1768 
(8  Geo.  3,  c.  15)  in  substance  that  Judges  of  Assize  should 
have  power  to  order  persons  convicted  of  crimes  without  the 
benefit  of  clergy  to  be  transported  for  any  term  they  thought 
proper,  or  for  fourteen  years  if  no  term  was  specially 
mentioned. 

The  result  of  all  this  legislation  as  to  the  punishment  of 
death  was  in  the  reign  of  George  IV.  as  follows  : — All 
felonies  except  petty  larceny  and  mayhem  were  theoretically 
punishable  with  death,  but  clergyable  felonies  were  never 
punished  with  death,  nor  were  persons  convicted  of  such 
felonies  sentenced  to  death.  When  asked  what  they  had  to 
say  why  sentence  should  not  be  passed  upon  them,  they  "  fell 

1   The  classes  of  persons  are  :  (1)    Persons  armed,  (2)  persons  witli  their 
faces  blacked,  (3)  persons  otherwise  disguised.     The  18  acts  are  : — 

(1)  Appearing  in  a  forest. 

(2)  ..         ,,        warren. 


place  where  hares  are  kept. 
,,         „       rabbits    ,, 
high  road, 
open  heath, 
common, 
down. 
(9)  Uniawfuliy  hunting    ^ 

(10)  „  wounding 

(11)  „  killing        ^  any  red  deer. 

(12)  ,,  destroying 

(13)  ,,  stealing     J 
(14—18)  Same 'as  to  falldw  deer. 


(3) 
(4) 
(5) 
(6) 
(7) 
(8) 


472         EESTRICTION   OF  CAPITAL  PUNISHMENTS   UNDER  GEORGE  IV. 

Ch.  XIII.   «  upon  their  knees  and  prayed  their  clergy,"  upon  which  they 

~~       were  liable  to  imprisonment  for  not  exceeding  a  year,  or  in 

some  cases  to  whipping,  or  in  the  case  of  petty  larceny,  or 

grand  larceny  not  excluded  from  clergy,  and  in  some  other 

cases  to  seven  years'  transportation. 

A  great  number  of  felonies  had  been  excluded  from  benefit 
of  clergy  in  the  course  of  the  eighteenth  century,  and  when  a 
person  was  convicted  of .  such  an  offence  he  had  to  be  sen- 
tenced to  death,  but  the  judge  might  order  him  to  be  trans- 
ported instead,  and  such  an  order  had  all  the  effects  of  a 
conditional  pardon. 

It  cam,e  to  be  considered  that  to  pass  sentence  of  death  in 
cases  in  which  it  was  not  intended  to  be  carried  out  was  objec- 
tionable, and  accordingly  in  1823  an  act  (4  Geo.  4,  c.  48) 
was  passed  which  authorized  the  court  in  cases  of  capital  con- 
victions for  any  felony  except  murder  to  abstain  from  actually 
passing  sentence  of  death,  and  to  order  it  to  be  recorded, 
which  had  the  effect  of  a  reprieve.  The  act  is  still  in  force, 
but  as  in  cases  of  murder  sentence  of  death  ^  must  be  passed, 
and  practically  no  other  felony  is  capital,  it  is  hardly  ever 
acted  upon. 

This  state  of  the  la,w  excited  great  philanthropic  indigna- 
tion, and  was  completely  altered  by  the  first  set  of  Acts  passed 
for  the  reform  of  the  criminal  law.  They  were  conceived  in 
a  spirit  totally  different  from  that  of  our  earlier  legislation. 
The  following  were  their  most  important  provisions : — In  1827 
(7  &  8  Geo.  4,  c.  28)  benefit  of  clergy  was  abolished  by  s.  6. 
Standing  alone  this  would  have  made  every  case  of  stealing 
above  the  value  of  a  shilling  punishable  by  death.  It  was 
therefore  provided  by  s.  7  that  no  one  convicted  of  felony 
should  suffer  death  unless  for  felonies  excluded  from  benefit 
of  clergy,  or  made  punishable  by  death  by  some  statute  sub- 
sequently passed.  In  order  to  meet  the  case  of  acts  made 
felony  in  general  terms  it  was  provided  that  in  such  cases  the 

^  The  repealed  statute,  6  &  7  Will.  4,  o.  30,  s.  2,  seems  to  tave  extended 
(4  Geo.  4,  c.  48)  to  cases  of  murder,  but  (24  &  25  Vie.  c.  100  s.  2)  had  the 
effect  stated  in  the  text.  I  remember  a  case  in  which  Mr.  Justice  Wightman 
ordered  sentence  of  death  to  be  recorded  upon  a  conviction  for  murder.  The 
prisoner,  though  not  quite  mad  enough  to  be  acquitted,  was  obviously  too  mad 
to  be  hanged.  I  have  met  with  cases  in  which  I  wished  I  had  a  similar 
power. 


LEGISLATION   OF  GEORGE  IV.  473 

punishment  should  be  seven  years'  transportation  or  two  years'  Ch.  XIII. 
imprisonment,  with  or  without  whipping  in  the  case  of  males. 
Section  9  provided  that  in  case  of  a  second  conviction  for 
felony  the  offender  should  be  liable  to  transportation  for 
life,  imprisonment  up  to  four  years,  and  public  or  private 
whipping  once,  twice,  or  thrice.  In  all  such  cases  the  court 
was  authorised  to  direct  that  the  imprisonment  should  be 
with  hard  labour.  This  section  replaced  the  old  rule  that 
privilege  of  clergy  could  be  had  once  only.  It  is  still  in 
force,  though  seldom  acted  on,  as  certain  provisions  in  the 
Larceny  Act  have  practically  superseded  it. 

The  Act  of  1827  was  followed  by  several  others  which  were 
intended  to  form  the  nucleus  of  a  criminal  code,  and  to  re- 
place the  fragmentary  and  yet  indiscriminate  legislation  of  the 
eighteenth  century  by  laws  in  which  punishments  were  more 
carefully  adjusted  to  offences.  Each  of  them  retained  the 
punishment  of  death  in  a  considerable  number  of  cases.  The 
first  of  them  was  7  &  8  Geo.  4,  c.  29,  "  for  consolidating 
"and  amending  the  laws  relating  to  larceny."  This  Act 
re-enacted  the  punishment  of  death  in  the  following  in- 
stances, namely,  robbery  either  by  force,  or  by  threats  to 
accuse  of  an  infamous  crime  (ss.  6 — 9),  sacrilege  (s.  10), 
burglary  (s.  11),  housebreaking  and  stealing  or  putting  in 
fear  any  person  in  the  house,  stealing  to  the  value  of  51. 
in  a  dwelling-house  (s.  12),  and  stealing  horses,  sheep,  and 
other  cattle  (s.  25). 

1  By  the  7  &  8  Geo.  4,  c.  30,  which  consolidated  the  law 
as  to  malicious  injuries,  the  punishment  of  death  was 
retained  in  cases  of  arson,  riotously  demolishing  houses, 
&c.,  destroying  ships  in  certain  cases,  and  exhibiting  false 
signals. 

In  the  following  year  (1828)  an  Act  was  passed  for  consoli- 
dating the  law  relating  to  offences  against  the  person  (9  Geo. 
4,  c.  31).  ^  By  this  Act  death  was  retained  as  the  punish- 
ment of  murder ;  attempts  to  murder  by  poisoning,  stabbing, 
shooting,  &c. ;  administering  poison  to  procure  abortion ; 
sodomy ;  rape  ;  and  connection  with  a  girl  under  ten. 

In  1830  was  passed   11  Geo.  4,  and  1    Will.    4,    c.    66, 
1  Ss.  2,  8,  9,  10,  11.  '  Ss.  3,  11,  12,  13,  15,  16. 


474  LEGISLATION   OF   WILLIAM  IV.   AND  VICTORIA. 

Ch.  xiil  consolidating  the  law  relating  to  forgery.  ^  This  Act  retained 
the  punishment  of  death  for  forging  the  great  seal  (which 
was  treated  as  high  treason),  public  securities,  wills,  bills  of 
exchange,  and  promissory  notes,  making  false  entries  in 
certain  public  books  of  accounts,  and  forging  transfers  of 
stocks. 

Each  of  these  Acts  repealed  and  re-enacted  a  number  of 
Acts  passed  at  various  times,  but  principally  in  the  eighteenth 
century,  excluding  particular  offences  from  benefit  of  clergy, 
and  punished  the  offences  created  by  those  statutes  with 
terms  of  transportation  varying  in  their  maximum  length 
from  life  to  seven  years,  the  court  having  power  to  sentence 
the  offender  in  the  alternative  to  imprisonment  with  or  with- 
out hard  labour,  and  in  some  cases  with  or  without  whipping. 

The  number  of  cases  in  which  the  punishment  of  death  was 
retained  under  the  Acts  of  George  IV.  was  considered  excessive, 
and  it  has  since  been  greatly  reduced,  though  by  slow  degrees- 
The  history  of  this  legislation  is  curious,  as  it  traces  the 
gradual  growth  of  a  sentiment  very  characteristic  'of  our 
generation.  It  is  as  follows : — In  1832  the  punishment  of  death 
was  abolished,  by  2  &  3  Will.  4,  c.  62,  in  the  case  of  stealing 
horses,  sheep,  and  other  cattle.  In  1835  it  was  abolished 
in  cases  of  letter-stealing  (which  was  capital  under  52  Geo. 

3,  c.  143,  and  had  not  been  included  in  the  consolidation 
Act  of  1827),  and  in  cases  of  sacrilege  in  which  it  had  been 
reimposed  by  that  Act.     This  was  effected  by  ^  5  &  6  Will. 

4,  c.  81. 

In  1837  several  acts  were  passed  which  abolished  the 
punishment  of  death  in  other  cases. 

By  7  Will.  4,  and  1  Vic.  c.  84  capital  punishment  was 
abolished  in  all  cases  of  forgery. 

By  chapter  85  the  punishment  of  death  was  modified  in 
regard  to  attempts  to  murder  by  confining  it  to  cases  of 
administering  poison  or  inflicting  bodily  injury  dangerous  to 
life  with  intent  to  murder ;  it  was  abolished  in  respect  of  the 
other  offences  made  capital   by  9  Geo.   4,  c.  31,  with  the 

'  Ss.  2 — 6,  inclusive. 

^  A  clerical  error  in  this  Act  ("  act "  for  "  acts  ")  made  it  doubtful  whether 
any  punishment  at  all  could  be  awarded  in  cases  of  letter-stealing  and 
sacrilege.     It  was  set  right  by  6  &  7  Will,  i,  o.  i. 


LEGISLATION   IN   PRESENT   REIGN.  475 

exception   of  murder,  rape,   abusing  girls   under  ten,    and   Ch.  XIII 
sodomy,  as  to  which  the  provisions  of  that  act  were  left 
unaltered. 

By  chapter  86  the  punishment  of  death  in  cases  of  burglary 
was  confined  to  burglary  accompanied  with  actual  violence  to 
any  person  in  the  house. 

By  chapter  87  the  punishment  of  death  in  cases  of  robbery 
was  confined  to  cases  accompanied  by  "  stabbing,  cutting,  or 
wounding: " 

By  chapter  88  the  punishment  of  death  in  cases  of  piracy 
was  confined  to  piracy  accompanied  by  an  assault  with  intent 
to  murder,  or  by  stabbing,  cutting,  or  wounding,  or  by  any 
act  by  which  the  life  of  any  person  on  board  is  endangered. 

By  chapter  89  the  punishment  of  death  was  abolished  in 
all  cases  of  injury  to  houses  and  ships,  except  only  the  case 
of  setting  fire  to  a  dwelling-house,  some  persons  being  therein. 

By  chapter  91  the  punishment  of  death  was  abohshed  in 
the  case  of  offences  against  the  Riot  Act,  rescuing  persons 
going  to  execution,  seducing  soldiers  from  their  allegiance, 
administering  seditious  oaths,  slave-trading,  and  certain  forms 
of  smuggling  accompanied  with  violence. 

In  1841  by  4  &  5  Vic.  c.  38,  the  punishment  of  death  was 
abolished  in  cases  of  rape  and  abusing  children  under  ten. 

By  the  ^  Consolidation  Acts  of  1861  the  punishment  of 
death  was  abolished  in  cases  of  robbery  with  violence, 
attempts  to  murder,  arson  of  dwelling-houses,  and  sodomy. 

The  only  offences  now  punishable  with  death  are  treason, 
murder,  piracy  with  violence,  and  setting  fire  to  dockyards 
and  arsenals. 

The  manner  in  which  the  punishment  of  death  has  been 
inflicted  for  many  centuries  has  been  and  still  is  hanging, 
though  in  early  times  beheading  wsfs  also  common,  not  only 
as  a  favour  to  persons  of  rank,  but  as  a  mode  of  executing 
common  criminals.^ 

1  24  &  25  Vic.  ss.  96,  97,  98,  99,  100. 

2  A  curious  proof  of  this  occurs  in  the  Parliament  Rolls  for  1314  (8  Edward 
II.).  The  land  of  a  person  who  had  been  beheaded  escheated  to  the  King, 
and  the  writ  stated  that  he  had  been  hanged.  Upon  which  "  concordatum  est 
' '  per  consilium  quod  consuetum  breve  de  escaeta  non  mutetur,  et  quod  ilium 
"  verbum  'suspensus,'  &c.,  habeat  locum  in  omni  casu  quando  aliqiiis 
"mortem  patitur  pro  felonia  per  ipsum  commissa.     Ita  quod  sive  fuerit 


476 


MANNER   OF   EXKCUTING  CRIMINALS. 


Ch.  XIII.  The  only  exceptions  to  the  general  rule  were  the  punish- 
ment of  treason,  which,  in  the  case  of  men,  was  hanging, 
drawing  (this  anciently  meant  dragging  the  offender  along 
the  ground  at  the  tail  of  a  horse),  and  quartering ;  and  in  the 
case  of  women,  burning ;  and  heresy,  which  was  also  punished 
by  burning.  ^  In  Henry  VII  I. 's  time  poisoning  was  declared 
to  be  treason,  punishable  by  boiling  to  death ;  and  it  seems 
that  three  or  four  persons  were  so  boiled,  but  this  Act  was 
repealed  by  the  1  Edw.  6,  and  it  is  remarkable  as  supply- 
ing the  single  instance  in  which  death  by  torture  has  been 
authorised  in  England  as  a  punishment  for  any  offence  ex- 
cept treason  and  heresy.  As  to  the  punishment  of  treason, 
^in  1283,  at  a  kind  of  Parliament  held  at  Shrewsbury,  David, 
the  last  native  Prince  of  Wales,  was  sentenced  to  be  hanged, 
drawn,  and  quartered,  and  to  have  his  bowels  burnt.     ^In 

«  ' '  decoUatus,  sive  alio  modo  pro  felonia  per  ipsum  facta  moriatur  illud  verbum 

"  'suspe.nsus'  locum  habeat"  (1  Eot.  Par.  293a— 2966).  So  in  31  Hen.  3, 
upon  an  appeal  for  murder,  "  Duodecim  juratores  dicunt  quod  prsedicti 
"  Albinus  et  Eicardus  "  (said  to  have  been  murdered)  "fuerunt  latrones  de 
"  bobus  et  vaccis,  et  cum  latrooinio  capti  unde  fuerunt  in  sesinft  et  idea  fv^runt 
"  deeollati  "  (Palgrave,  Proofs  and  Illustrations,  clxxxvii.).  There  are  several 
references  in  the  Year-books  to  decapitation  as  a  punishment  for  flight.  See 
3  Edw.  3,  it.  North.  FitzHerbert,  Corone,  346.  "It  was  presented  that  a 
' '  thief  indicted  was  taken  and  led  towards  th6  gaol  by  four  of  the  town,  and 
"  when  they  came  to  a  church  two  went  in  to  hear  mass,  and  two  staj'ed  out- 
"  side  to  guard  the  prisoner.  The  prisoner  fled  ;  the  twotfollowed  and  raised 
"  the  hue  and  cry,  whereby  the  town  rose  and  followed  the  felon  tiU  they 
"beheaded  him,  because  they  could  not  otherwise  take  him.  The  justices 
"  charged  the  town  which  ought  to  have  taken  him  for  an  escape  "  (les  justiez 
ag.  le  pur  eschape  ss  le  vill'  q  luy  duit  aii  amesfl),  "  and  the  twelve  said  he 
"  was  never  out  of  their  sight ;  the  justices  said  that  he  escaped  by  the  fault 
"  of  their  guard,  and  this  was  a  case  of  escape.  Louth  said  that  when  a  thief 
"  is  beheaded  in  pursuing  him  for  a  robbery  the  act  can  be  justiB.ed,  and  this 
"  is  more  accordant  to  reason  than  it  is  to  behead  a  man  who  flies,  having 
' '  been  indicted  and  being  under  guard,  for  honest  men  are  sometimes  indicted, 
"  so  that  the  law  should  be  more  favourable  to  them  than  to  the  others"  (i.e 
robbers  followed  by  hue  and  cry).  This  seems  to  be  the  meaning  of  the 
passage,  but  the  wording  is  rather  confused.  Cf.  FitzHerbert,  Corone,  290 
and  328,  which  seem  to  relate  to  the  same  case. 

^  Zrd  Institute,  p.  48. 

2  Ante,  p.  146.  Lingard,  iii.  196,  and  see  Stubbs,  0.  H.  ii.  216.  The 
sentence  as  quoted  by  Lingard  (iii.  196)  from  a  chronicler,  is  "  to  be  drawn  to 
"  the  gallows  as  a  traitor  to  the  king  who  made  him  a  knight,  to  be  hanged 
"  as  the  murderer  of  the  gentleman  taken  in  the  Castle  of  Hawarden  ;  to  have 
"  his  bowels  burnt  because  he  had  profaned  by  assassination  the  solemnity  of 
' '  Christ's  passion ;  and  to  have  his  quarters  dispersed  through  the  country 
"  because  he  had  in  different  places  compassed  the  death  of  his  lord  the 
"  king."  Cumulative  punishments  were  inflicted  on  Lord  Cobham  and  after- 
wards on  Friai  Forrest,  each  being  half  hanged  as  a  felon  and  half  burnt  as  a 
heretic. 

^  See  2  Rot,  Par.  3,  4.  The  form  of  the  sentence  in  this  case  is,  "  Con- 
"  sideratum  est   quod   praedictus   Thomas  Comes  pro  prsediota  prodition 


BURNING — GIBBETING.  477 

the  time  of  Edward  II.,  Thomas  of  Lancaster  was  sentenced  Ch.  xill. 
to  be  hanged,  drawn,  and  beheaded,  but  on  account  of  his 
high  birth  was  pardoned  all  but  the  beheading.     Burning 
continued   till   1790   to    be    the    punishment    inflicted    on 
women   for  treason,  high   or  petty  (which  latter  included 
not  only  the  murder  by  a  wife  of  her  husband,  and  the 
murder   of  a   master   or  mistress    by   a   servant,   but   also 
several  offences  against  the  coin).    Burning  in  such  cases  was 
abolished  by  30  Geo.   3,  c.  48.     In  practice,  women    were 
strangled  before  they  were  burnt;  this,  however,  depended 
on   the  executioner.     In  one  notorious   case  a  woman  was 
actually  burnt  alive  for  murdering  her  husband,  the  exe- 
cutioner being  afraid  to  strangle  her  because  he  was  caught 
by  the  fire.     In  the  reign  of  George  II.  an  act  was  passed 
which  was  intended  to  make  the  punishment  for  murder  more 
severe  than  the  punishment  for  other  capital  crimes.    This  was 
25  Geo.  2,  c.  37,  which  provided  that  a  person   convicted 
of  murder  should  be  executed  on  the  next  day  but  one  after 
his  sentence  (unless  he  was  tried  on  a  Friday,  in  which  case 
he  was  to  be  hanged  on  the  Monday).     He  was  to  be  fed  on 
bread  and  water  in  the  interval,  and  his  body,  after  death, 
was   either  to  be  dissected  or  to  be  hung  in  chains.     The 
judge,  liowever,   had   power  to  respite   or  to  remit  these 
special  severities.      Under  this  act  murderers  were  usually 
anatomized,  but  sometimes   gibbeted.      By  the  2  &  3  Will. 
4,  c.  7,  s.  16  (for  the  regulation  of  schools  of  anatomy),  it 
was  enacted  that  the  bodies  of  murderers  should  no  longer 
be  anatomized,  but  that  the  sentence  should  direct  that  they 
should  either  be  hung  in  chains  or  be  buried  in  the  prison. 
Several  persons  were  gibbeted  under  this  act,  but  by  the  3  & 
4  Will.  4,  c.  26,  s.  2,  it  was  enacted  that  the  bodies  of  mur- 
derers should  no  longer  be  hung  in  chains,  but  that  the  sentence 
should  direct  that  they  should  be  buried  in  the  precincts  of 
the  prison  in  which   they  should  last  have  been  confined 
before   their  execution,    and   this  direction  is    repeated  in 

"  trahatur,  et  pro  prsedictis  homicidiis,  depredationibus,  incendiis,  et  roberiis, 
"  suspendatnr  et  pro  predicta  fug§,  in  hac  parte  decapitetur."  In  each  of 
the  cases  referred  to  above  as  to  beheading,  the  persons  were  taken  whilst 
running  away,  and  were  probably  there  and  then  put  to  death. 


478  OPINION   ON  PUNISHMENT   OF  DEATH. 

Ch.  XIII.  24  &  25  Vic.  c.  100,  s.  2,  which  is  now  in  force.  These  pro- 
visions distinguish  English  law  in  a  marked  manner  from 
the  continental  laws  down  to  the  end  of  the  last  century. 
In  most  parts  of  the  Continent  breaking  on  the  wheel,  burn- 
ing, in  some  cases  quartering  alive  and  tearing  with  red-hot 
pincers,  were  in  use,  as  well  as  simpler  forms  of  death. 
English  people,  as  a  rule,  have  been  singularly  reckless  (till 
very  lately)  about  taking  life,  but  they  have  usually  been 
averse  to  the  infliction  of  death  by  torture. 

Such  is  the  history  of  the  punishment  of  death  as  inflicted 
by  the  law  of  England.  The  subject  is  so  trite  that  I  feel 
reluctant  to  discuss  it,  but  I  am  also  reluctant  to  pass  it  over 
without  shortly  stating  my  own  opinion  upon  it.  My 
opinion  is  that  we  have  gone  too  far  in  laying  it  aside,  and 
that  it  ought  to  be  inflicted  in  many  cases  not  at  present 
capital.  I  think,  for  instance,  that  political  offences  should 
in  some  cases  be  punished  with  death.  People  should  be 
made  to  understand  that  to  attack  the  existing  state  of 
society  is  equivalent  to  risking  their  own  lives. 

In  cases  which  outrage  the  moral  feelings  of  the  com- 
munity to  a  great  degree,  the  feeling  of  indignation  and 
desire  for  revenge  which  is  excited  in  the  minds  of  decent 
people  is,  I  think,  deserving  of  legitimate  satisfaction.  If  a 
man  commits  a  brutal  murder,  or  if  he  does  his  best  to  do  so 
and  fails  only  by  accident,  or  if  he  ravishes  his  own  daughter 
(I  have  known  several  such  cases),  or  if  several  men  acting 
together  ravish  any  woman,  using  cruel  violence  to  effect 
their  object,  I  think  they  should  be  destroyed,  partly  in 
order  to  gratify  the  indignation  which  such  crimes  produce, 
and  which  it  is  desirable  that  they  should  produce,  and  partly 
in  order  to  make  the  world  wholesomer  than  it  would  other- 
wise be  by  ridding  it  of  people  as  much  misplaced  in  civilized 
society  as  wolves  or  tigers  would  be  in  a  populous  country. 
What  else  can  be  done  with  such  people  ?  If  ^  WiUiam 
Palmer  had  not  been  hanged  in  1856,  he  would  probably 
have  been  alive  at  this  day,  and  likely  to  live  for  many 
years  to  come.  What  is  the  use  of  keeping  such  a  wretch 
alive  at  the  public  expense  for,  say,  half  a  century  ? 
1  See  his  case  at  the  end  of  Vol.  III. 


SUGGESTIONS  AS  TO   CAPITAL   PUNISHMENT.  479 

If  by  a  long  series  of  frauds   artfully  contrived   a  man  Ch.  XIll. 
has   shown    that    he    is   determined   to    live   by   deceiving 
and   impoveristung    others,   or    if    by   habitually   receiving 
stolen  goods  he  has  kept  a  school  of   vice  and  dishonesty, 
I  think  he  should  die. 

These  views,  it  is  said,  are  opposed  to  the  doctrine  that 
human  life  is  sacred.  I  have  never  been  able  to  understand 
distinctly  what  that  doctrine  means,  or  how  its  truth  is 
alleged  to  be  proved.  If  it  means  that  life  ought  to  have 
serious  aims  and  to  be  pervaded  by  a  sense  of  duty,  I  think 
the  doctrine  is  true,  but  I  do  not  see  its  relation  to  the  pro- 
position that  no  one  ought  ever  to  be  put  to  death.  It 
rather  suggests  the  contrary  conclusion  as  to  persons  who 
refuse  to  act  upon  it.  If  it  means  only  that  no  one  ought 
ever  to  be  kiUed,  I  do  not  know  on  what  grounds  it  can  be 
supported.  Whether  life  is  sacred  or  not,  I  think  there  are 
many  cases  in  which  a  man  should  be  ready  to  inflict,  or,  if 
necessary,  to  suffer  death  without  shrinking. 

As,  however,  these  views  are  at  present  unpopular  and 
peculiar,  and  in  the  present  state  of  public  feeling  on  the 
subject  it  is  useless  to  discuss  this  matter  at  length,  no  good 
purpose  is  served  by  making  specific  proposals  which  no  one 
would  entertain ;  but  I  may  remark  that  I  would  punish  with 
death  offences  against  property  only  upon  great  deliberation, 
and  when  it  was  made  to  appear  by  a  public  formal  inquiry  held 
after  a  conviction  for  an  isolated  offence  that  the  criminal  really 
was  an  habitual,  hardened,  practically  irreclaimable  offender. 
I  would  on  no  account  make  the  punishment  so  frequent  as 
to  lessen  its  effect,  nor  would  I  leave  any  doubt  as  to  the 
reason  why  it  was  inflicted.  I  suspect  that  a  small  number  of 
executions  of  professional  receivers  of  stolen  goods,  habitual 
cheats,  and  ingenious  forgers,  after  a  full  exposure  of  their 
career  and  its  extent  and  consequences,  would  do  more  to  check 
crime  than  twenty  times  as  many  sentences  of  penal  servi- 
tude. If  society  could  make  up  its  mind  to  the  destruction 
of  really  bad  offenders,  they  might,  in  a  very  few  years,  be 
made  as  rare  as  wolves,  and  that  probably  at  the  expense  of 
a  smaller  sacrifice  of  life  than  is  caused  by  many  a  single 
shipwreck  or  colliery  explosion ;  bixt,  for  this  purpose,  a  change 


480  TRANSPOETATION. 

Ch.  XIII.  of  public  sentiment  would  be  necessary,  of  which  there  are 
~       at  present  no  signs. 

In  relating  the  history  of  the  punishment  of  death  I  have 
also  related  by  anticipation  the  greater  part  of  the  history  of 
the  punishment  of  transportation.  The  punishment  was  un- 
known at  common  law,  though  in  ^one  case  exile  was  at 
common  law  a  consequence  of  crime.  This  happened  when  a 
criminal  took  sanctuary  and  confessed  his  crime.  Upon  this 
he  was  allowed  to  leave  the  kingdom,  taking  an  oath  of  ab- 
juration, as  it  was  called,  which  bound  him  never  to  return ; 
but  sanctuary  and  abjuration  were  both  abolished  by  1  Jas.  1, 
0.  25,  and  20  Jas.  1,  c.  18.  ^  The  earliest  instances  of  trans- 
portation as  a  punishment  seem  to  have  occurred  in  the 
reign  of  Charles  II.,  when  pardons  were  granted  to  persons 
capitally  convicted  conditionally  on  their  being  transported 
for  a  number  of  years — usually  seven.  This  practice  was  re- 
cognised, as  I  have  observed,  by  the  Habeas  Corpus  Act,  and 
greatly  extended  by  subsequent  legislation,  and  particularly 
by  the  Act  of  1768.  It  was  first  legalized  as  a  substantive 
punishment  by  the  Act  of  4  Geo.  1,  c.  11,  already  men- 
tioned. In  the  course  of  the  eighteenth  and  the  early  part 
of  the  present  century  an  immense  number  of  Acts  were 
passed  by  which  various  terms  of  transportation,  with  alter- 
native terms  of  imprisonment,  and  power,  in  some  cases 
alternative  and  in  others  cumulative,  to  order  whipping  more 
or  less  frequently,  were  allotted  to  particular  offences.  This 
legislation  was  guided  by  no  principle  whatever,  and  was 
utterly  destitute  of  any  sort  of  uniformity.  Its  result  is 
given  in  the  ^  fifth  and  sixth  Appendices  to  the  Fourth 
Report  of  the  Criminal  Law  Commissioners.  They  contain 
lists  of  all  the  felonies  not  at  that  time  punishable  by  death, 

1  Chitty,  Orim.  Law,  789  ;  2  Hale,  P.  O.  68. 

^  111  the  "Directions  for  Justices  of  the  Peace"  (prefixed  to  Kelyng's 
Reports,  wHcli  were  published  in  1664),  the  twelfth  direction  is  "  that  such 
"  prisoners  as  are  reprieved  with  intent  to  be  transported  be  not  sent  away 
"  as  perpetual  slaves,  but  upon  indentures  between  them  and  particular 
"  masters  to  serve  in  our  English  plantations  for  seven  years,  and  the  three 
"  last  years  thereof  to  have  wages  that  they  may  have  a  stock  when  their  time 
"  is  expired,  and  that  an  account  be  given  thereof  and  by  whom  they  are 
"  sent,  and  of  their  arrivals." — Kelyng's  Seports,  3 — 4. 

■'  Dated  8th  March,  1839.  See  App,  v.  pp.  10—64;  App.  vi.  pp. 
64—101. 


VARIATIONS  IN   PUNISHMENTS.  48 1 

and  of  all  statutory  misdemeanours,  classified  according  to  Ch.  xill. 
their  punishments.  There  are  thirty-eight  classes  of  felonies 
and  ninety-six  classes  of  misdemeanours.  The  extreme 
intricacy  of  this  classification  is  thus  accounted  for.  In  the 
case  of  an  offence  punishable  by  transportation  the  enactment 
providing  for  its  punishment  might,  and  generally  did,  contain 
the  following  matters  : — 
.  (1)  A  maximum  term  of  transportation. 

(2)  Intermediate  terms  of  transportation. 

(3)  A  minimum  term  of  transportation. 

(4)  A  maximum  alternative  term  of  imprisonment  with 
or  without  hard  labour. 

(5)  A  minimum  alternative  term  of  imprisonment. 

(6)  Power  to  inflict  whipping,  publicly  or  privately,  and 
once  or  more  than  once. 

(7)  Power  to  inflict  solitary  confinement  during  a  certain 
part  of  the  term  of  imprisonment. 

These  seven  elements  of  punishment  were  combined  and 
varied  in  all  imaginable  ways. 

In  their  ^  Seventh  Eeport  the  Criminal  Law  Commissioners 
refer  to  many  instances  of  these  capricious  variations.  They 
say,  for  instance,  "  In  seventeen  different  classes  of  cases  the 
"  sentence  may  be  transportation  for  life ;  in  two  the  punish- 
"  ment  is  absolute  without  any  alternative.  In  another, 
"  power  is  given  to  transport  for  any  other  term  without 
"  fixing  a;ny  minimum  term  of  transportation  or  any 
"  alternative  term  of  imprisonment.  Of  the  fourteen  other 
"  classes  in  one  only  is  the  minimum  of  transportation  fifteen 
"  years."  .  .  .  "In  one  case  only  is  the  minimum  term  of 
"  transportation  ten  years.  We  find  fifteen  varieties  in 
"  punishments  where  the  maximum  is  transportation  for  a 
"  term  of  fourteen  or  fifteen  years.  The  instances  in  which 
"  the  punishment  of  transportation  for  seven  years  may  be 
"  inflicted  present  twenty-three  varieties." 

The  only  point  worth  special  notice  in  this  state  of  the  law 

is  the  wide  though  capriciously  restricted  discretion  left  to 

the  judge.     In  regard  to  the  great  majority  of  offences  the 

judge  was  able  to  give  as  little  punishment  as  he  pleased.    In 

1  11  March,  1843,  pp.  100—103. 

VOL.   I,  II 


482  PRESENT   STATE   OF   THE   LAW. 

Ch.  XIII.  some  few  the  punishment  was  absolute.      In  many  a  greater 
or  less  minimum  punishment  was  inflicted  of  necessity. 

This  was  to  a  great  extent  remedied  in  the  year  1846  by 
an  Act  (9  &  10  Vic.  c.  24,  s.  1),  which  provided  that  in  all 
cases  where  any  court  is  {i.e.  was  then)  empowered  to  pass  a 
sentence  of  more  than  seven  years'  transportation  it  should 
have  power  to  pass  instead  sentence  of  transportation  for  any 
term  not  exceeding  seven  years,  or  sentence  of  imprisonment 
with  or  without  hard  labour  for  any  term  not  exceeding  two 
years. 

Far  the  greater  part  of  the  criminal  law  relating  to 
felonies  has  been  recast  and  re-enacted  since  the  reports  to 
which  I  have  been  referring,  and  though  the  varieties  in 
punishment  are  stiU  considerable,  and  perhaps  not  always 
of  obvious  utility,  they  are  greatly  diminished.  There  is 
only  one  ^  common  case  in  which  a  minimum  punishment  is 
still  retained.  The  maximum  punishments  are  penal  servi- 
tude for  life,  for  fourteen  years,  for  ten  years  (in  a  very  few 
cases),  for  seven  years,  and  for  five  years.  The  alternative 
punishments  in  all  cases  are  imprisonment  for  a  term  not 
exceeding  two  years  with  or  without  hard  labour.  Whipping 
may  be  added  in  a  very  few  cases  of  crimes  by  adults,  and  in 
a  larger  number  of  cases  of  crimes  committed  by  boys  under 
sixteen. 

The  punishment  of  transportation  was  gradually  abolished 
between  1853  and  1864,  principally  on  account  of  the  objec- 
tion of  the  colonies  to  receive  the  convicts  sentenced  to  it, 
and  ^  penal  servitude  or  imprisonment  and  hard  labour  on 
public  works  was  substituted  for  it.  The  Penal  Servi- 
tude Acts  authorize  the  carrying  out  of  the  sentence  in 
any  part  of  Her  Majesty's  dominions,  and  under  those 
Acts  criminals  were  kept  in  confinement  at  Bermuda  and 
in  Gibraltar  till  very  lately.  The  difference  between  the 
two  punishments  is  thus  rather  a  difference  in  name  than 
in  fact,  indeed  the  provisions  of  the  Act  which  regulated 

^  The  case  of  unnatural  offences,  lor  which  the  minimum  punishment  is  ten 
years'  penal  servitude. 

M6  &  17  Vic.  c.  99  (1853),  20  &  21  Vic.  c.  3  (1857),  27  &  28  Vic.  c.  i7 
(1864).     The  Act  as  to  transportation  is  6  Geo.  4,  c.  54. 


IMPEISONMENT.  483 

transportation  (5  Geo.  4,  c.  84)  are  still  in  force  as  regards  Ch.  xiii. 
prisoners  under  sentence  of  penal  servitude.  A  singular 
variation  in  the  scale  of  punishment  produced  by  the 
change  from  transportation  to  penal  servitude  deserves 
notice.  The  common  minimum  term  of  transportation 
was  seven  years,  but  when  that  punishment  was  commonly 
inflicted  imprisonment  might  in  many  cases  be  inflicted 
for  three,  four,  and  even  ^  seven  years,  so  that  the  break 
between  a  sentence  of  imprisonment  and  a  sentence  of 
transportation  was  not  necessarily  a  long  one.  When  penal 
servitude  was  substituted  for  transportation  imprisonment 
had  been  rendered  both  ^more  severe  and  shorter  than 
it  had  formerly  been,  so  that  with  hardly  an  exception  the 
maximum  punishment  permissible  was  two  years'  hard 
labour.  At  first  the  minimum  term  of  penal  servitude  was 
three  years,  so  that  the  break  between  the  longest  term  of 
imprisonment  and  the  shortest  term  of  penal  servitude  was 
not  longer  than  would  be  proportional  to  the  greater  severity 
of  the  former  punishment.  In  1864,  however,  the  minimum 
term  of  penal  servitude  was  raised  to  five  years,  at  which  it 
still  remains,  so  that  at  present  no  sentence  can  be  passed 
intermediate  in  severity  between  two  years'  imprisonment 
and  hard  labour  (which,  however,  is  considered  so  severe  that 
sentences  are  usually  restricted,  except  in  very  peculiar  cases, 
to  eighteen  months)  and  five  years'  penal  servitude. 

The  history  of  the  punishment  of  imprisonment  presents 
some  features  of  interest.  Imprisonment  is  as  old  as  the  law 
of  England,  and  from  very  early  times  enactments  were  made 
as  to  the  provision  of  gaols.  One  of  the  earliest  occurs  in 
the  seventh  chapter  of  the  Assize  of  Clarendon  (a.d.  1166), 
5  which  is  as  follows : — "  Et  in  singulis  comitatibus  ubi  non 
"  sunt  gaiolce  fiant  in  burgo  vel  aliquo  castello  regis  de 
"  denariis  regis  et  bosco  ejus  si  prope  fuerit,  vel  de  alio  bosco 
"  propinquo,  per  visum  servientium  regis,  ad  hoc  ut  vice 
"  comites  in  illis  possint  illos  qui  capti  fuerint  per  ministros 

'  Seven  years'  imprisonment  is  still  lawful  in  cases  of  perjury. 

"  The  great  increase  in  the  severity  of  imprisonment  was  by  making  the 
confinement  in  all  case  separate.  The  present  Act  on  the  subject  is  28  &  29 
Vic.  c.  126,  o.  17.  ^  Stubbs,  Charters,  p.  144. 

I   I    2 


484  HISTORY  OF  PRISONS. 

Ch.  XIII.  "  qui  hoc  facere  solent  et  per  servientes  suos  custodire." 
This,  no  doubt,  is  the  origin  of  the  use  as  prisons  of  large 
numbers  of  ancient  castles,  some  of  which  are  still  used  for 
that  purpose,  as,  for  instance,  at  Norwich,  Cambridge,  and 
York.  These  were  the  original  common  gaols,  but  they  were 
far  from  being  the  only  prisons  in  the  country.  Nearly  every 
court  had  its  own  particular  prison.  Thus  the  Marshalsea  was 
specially  the  prison  of  the  Marshal  of  the  Court  of  King's 
Bench,  The  Fleet  was  the  prison  of  the  Star  Chamber  and 
of  the  Court  of  Chancery,  but  besides  and  apart  from  these, 
there  were  in  many  places  franchise  prisons.  The  right  of 
keeping  a  gaol  in  and  for  particular  districts  was  a  franchise 
which  the  king  granted  to  particular  persons  as  he  granted 
other  rights  connected  with  the  administration  of  justice, 
such  as  the  right  to  execute  writs  (retorna  brevium). 

In  this  as  in  many  other  cases,  the  discharge  of  the  legal 
duty  of  keeping  prisoners  in  custody  was  paid  for,  not  by 
salaries,  but  by  fees,  which  were  levied  on  the  prisoners ;  and 
as  prisoners  accused  of  crime  were,  as  a  rule,  poor  and 
wretched  to  the  last  degree,  fees  had  to  be  extorted  from 
them  by  all  kinds  of  oppression  and  cruelty.  A  remarkable 
illustration  both  of  the  manner  in  which  particular  prisons 
came  into  existence,  and  of  the  horrible  abuses  to  which  the 
system  was  Liable,  is  to  be  found  in  the  ^  proceedings,  recorded 
in  the  seventeenth  volume  of  the  State  Trials,  against 
Huggins,  Bambridge,  Corbett,  and  Acton,  for  a  series  of 
murders  by  cruel  treatment,  said  to  have  been  committed  by 
them  in  the  Fleet  and  the  Marshalsea. 

The  first  matter  ^  published  is  a  report  of  a  Committee  of 
the  House  of  Commons  upon  the  gaols,  and  especially  upon 
the  Fleet.  The  Committee  reported  that  the  Fleet  prison 
was  '  an  ancient  prison,  and  had  been  used  to  receive  prisoners 
CO  mmitted  by  the  Star  Chamber.  It  afterwards  became  a  prison 
for  debtors  and  for  contempts  of  the  Courts  of  Chancery,  Ex- 
chequer, and  Common  Pleas  only.  In  the  3rd  Elizabeth  (1561) 
the  office  of  warden  was  granted  in  fee  simple  to  Sir  Jeremy 

»  17  St.  Tr.  297—618.  2  17  St.  Tr.  297—810. 

'  It  must  have  been  very  ancient  if  it  really  gave  its  name  to  I'lda, 
which  was  written  in  Edward  I.'s  time. 


CASES   OF   HUGGINS,  BAMBRIDGE,   AND   OTHERS.  485 

Whichcot  and  his  heirs  for  ever.  The  patent  was  at  last  set  Ch.  XIJ.T. 
aside,  as  it  descended  to  persons  unable  to  execute  it,  and  a 
grant  for  life  was  made  to  Baldwin  Leighton,  in  consideration 
of  the  expense  to  which  he  had  been  put  in  repealing  the 
former  patent.  Afterwards  Huggins  got  a  grant  of  it  for  his 
own  and  his  son's  life,  "by  giving  £5,000  to  the  late  Lord 
"  Clarendon."  Huggins,  "  growing  in  years,  and  wishing  to 
"  retire  from  business,"  sold  his  and  his  son's  interest  to 
Bambridge  and  Corbett  for  £5,000.  The  rest  of  the  report 
relates  to  the  horrible  cruelties  which,  in  order  to  make 
their  speculation  succeed,  Huggins  and  Bambridge  exercised 
on  a  variety  of  prisoners.  These  cruelties  are  more  parti- 
cularly described  in  seven  trials  for  murder  and  one  trial  for 
theft,  which  are  reported  in  the  State  Trials,  and  which 
show  the  horrible  results  which  such  a  system  not  unnaturally 
produced. 

The  report  of  the  Committee  above  referred  to  was  made 
in  1729,  and  the  trials  took  place  in  that  year  and  in  1730. 
In  1729  an  act  was  passed  (2  Geo.  2,  c.  22)  which  was 
intended  to  remedy  the  mischiefs  thus  exposed.  It  was,  how- 
ever, a  most  imperfect  measure,  and  the  prisons  of  England 
continued  for  many  years  afterwards  to  be  in  an  infamous 
condition.  The  first  great  step  made  towards  their  reforma- 
tion was  taken  in  consequence  of  the  labours  of  Howard, 
which  began  in  1773,  when  he  was  sheriff  of  Bedfordshire. 
Finding  his  own  gaol  in  a  disgraceful  condition  on  account  of 
the  gaoler's  being  paid  by  fees,  Howard  proposed  that  the 
gaoler  should  be  paid  by  a  salary,  but  his  brother  magistrates 
refused  to  agree  to  this  unless  a  precedent  could  be  found  for 
such  a  payment.  Howard  travelled  through  the  whole  of 
England  in  search  of  a  precedent,  and  found  that  none  existed. 
His  attention  was  thus  directed  to  the  shameful  state  of  the 
prisons.  After  employing  himself  for  several  years  in  col- 
lecting information  on  the  subject,  for  which  purpose  he 
travelled  all  over  Europe  and  part  of  Asia,  his  labours 
resulted  in  a  series  of  acts  of  Parliament,  the  most  im- 
portant of  which  were  22  Geo.  3,  c.  64,  passed  in  1782, 
and  24  Geo.  3,  c.  54,  passed  in  1784.  The  first  act 
applies  to  the  discipline  of  houses  of  correction,  and  the 


486  PEISON   ACTS. 

Ch.  XIII.  second  to  the  building,  repairing,  and  government  of  county 

gaols.     These   acts   were   of  the  greatest   importance, .  and 

recognised  many  excellent  principles,  but  in  practice  they 
left  many  evils  undisturbed.  The  subject,  however,  is  not  so 
closely  connected  with  criminal  law  as  to  justify  me  in  going 
at  any  length  into  the  details.  It  is  enough  to  say  that  from 
Howard's  time  to  the  present  day  the  attention  of  the  legis- 
lature has  been  specially  directed  to  the  whole  subject  of 
prison  management  and  discipline.  There  have  been  three 
principal  acts  passed  in  relation  to  it,  namely,  4  Geo.  4,  c.  64, 
passed  in  1823;  the  28  &  29  Vic.  c.  126,  passed  in  1865 
(which  repealed  the  Act  of  4  Geo.  4),  and  the  40  &  41 
Vic.  c.  21 — the  Prison  Act  of  1877 — which  is  now 
the  principal  Act  on  the  subject.  These  Acts  (there  are 
very  many  others  relating  either  to  particular  prisons  or 
to  matters  connected  with  prison  administration)  at  first 
established  a  distinction  between  common  gaols  (of  which 
one  was  to  be  provided  for  every  county,  and  which  were  to 
be  used  principally  for  the  purpose  of  the  confinement  of 
prisoners  of  all  sorts,  debtors  as  well  as  criminals),  and  houses 
of  correction,  which  were  to  be  used  principally  for  the  pur- 
pose of  punishing  convicted  criminals.  The  distinction, 
however,  was  not  maintained,  as  statutes  creating  crimes 
usually  provided  that  the  sentence  of  imprisonment  might  be 
carried  out  either  in  a  common  gaol  or  in  a  house  of  correc- 
tion. Each  of  the  Consolidation  Acts  of  1861  contains 
such  a  clause.  The  Act  of  1865  considerably  simplified 
this  state  of  things,  abolishing,  for  one  thing,  the  distinction 
between  common  gaols  and  houses  of  correction,  directing 
that  imprisonment  should  in  all  cases  be  "  separate,"  which 
in  practice  means  much  the  same  as  solitary,  and  laying 
down  other  regulations  tending  to  make  the  punishment  of 
imprisonment  and  the  discipline  of  prisons  more  uniform 
than  they  used  to  be. 

The  Prison  Act  of  1877  lessened  the  number  of  prisons, 
and  gave  to  the  Home  Secretary  and  to  certain  Prison  Com- 
missioners appointed  on  his  recommendation  extensive  powers 
for  their  management.  It  would  be  foreign  to  my  pui-pose  to 
enter  into  details  on  these  matters.     It  is  enough  to  say  that 


CORRUPTION   OF  BLOOD — FORFEITURE.  4^7 

since  the  Act  of  1865  solitary  confinement,  which  before  that  Ch.  Xlll. 
Act  passed  was  allowed  to  be  inflicted  only  for  a  short  part 
of   the   whole   term   of  imprisonment,   is  now,   under  the 
name  of  separate  confinement,  inflicted  in  all  cases  as  the 
regular  and  appointed  mode  of  punishment. 

Shortly  to  sum  up  the  whole  matter,  the  history  of  the 
punishment  of  death  and  of  the  punishments  substituted  for 
it  is  as  follows  : — 

Death  was  at  common  law  the  punishment  of  all  felonies 
except  petty  larceny  and  mayhem.  But  a  large  class  of 
persons  were  exempted  from  it  by  the  law  as  to  benefit  of 
clergy,  which  at  first  applied  to  the  clergy  only,  then  to  all 
men  who  could  read,  except  the  husbands  of  second  wives 
or  widows,  and  at  last  to  all  persons  whatever. 

On  the  other  hand,  when  benefit  of  clergy  was  extended 
to  all  persons,  it  was  taken  away  from  many  crimes.  This 
was  done  to  a  considerable  extent  under  the  Tudors,  and  to  a 
much  greater  extent  in  the  eighteenth  century,  but  during 
that  century  pardons  conditional  on  transportation  were 
granted  in  the  great  majority  of  cases  of  capital  convictions. 

In  the  reign  of  George  IV.  benefit  of  clergy  was  abolished 
and  capital  punishment  was  abolished  as  regards  most  of  the 
offences  which  had  been  excluded  from  clergy,  but  the 
number  of  offences  subject  to  it  was  still  considerable. 

By  successive  steps,  the  last  of  which  was  taken  in  1861, 
the  law  was  reduced  to  its  present  state. 

Transportation,  having  been  introduced  as  a  condition  of 
pardon  in  the  case  of  crimes  excluded  from  clergy,  was 
made  a  substantive  punishment  by  a  great  number  of 
statutes  passed  in  the  18th  and  the  early  part  of  the  19th 
century,  but  penal  servitude  was  substituted  for  it  between 

1853  and  1864. 

Imprisonment  with  hard  labour  was  introduced  as  a 
punishment  alternative  to  transportation  and  penal  servitude. 

One  other  consequence  of  treason  and  felony  remains  to  be 
noticed.  This  is  corruption  of  blood  and  forfeiture  of  property. 
The  effect  of  corruption  of  blood  was  that  descent  could 
not  be  traced  through  a  person  whose  blood  was  corrupted. 
Also  his  real  property  escheated  to  the  lord  of  the  fee  or  to 


488  FORFEITURE   OF   PENSIONS  AND   OFFICES. 

CH.  XIII.   the  king.     The  personal  property  of  a  traitor  or  felon  was 

forfeited  not  by  his  attainder,  but  by  his  conviction. 

These  incidents  of  treason  and  felony  have  their  source 
in  the  feudal  theory  that  property,  especially  landed  property, 
was  held  of  a  superior  lord  upon  the  condition  of  discharging 
duties  attaching  to  it,  and  was  forfeited   by  the  breach  of 
those  conditions.     They  have  no  history  at  all,  but  prevailed 
from  the  earliest  time  till  the  year  1870,  when  they  were 
abolished  by  33  &  34  Vic.  c.  23  s.  1,  except  in  the  case  "of 
"  forfeiture  consequent  upon  outlawry."     Some  of  the  pro- 
visions by  which  they  were  replaced  appear  to  me  exceedingly 
objectionable.     It  is  provided  by  section  2  that  upon  a  con- 
viction for  felony  and  a  sentence  of  twelve  months'  imprison- 
ment or  upwards  or  imprisonment  with  hard  labour  for  any 
term  the  convict  shall  forfeit  "  any  military  or  naval  office 
"  or  any  civil  office  under  the  Crown  or  other  public  employ- 
"  ment,  or  any  ecclesiastical  benefice,  or  any  place,  office,  or 
"  emolument  in  any  university,  college,  or  other  corporation 
"  which  he  may  hold,  and  also  any  pension  or  superannuation 
"  allowance  or  emolument "  to  which  he  is  entitled.     I  think 
that  the  question  whether  a  person  should  on  account  of  a 
'     conviction  of  felony  followed  by  a  sentence  of  imprisonment 
and  hard    labour,   be    deprived    of   official   employment    or 
ecclesiastical  perferment,  should  be   left  to  his   official  or 
ecclesiastical  superiors.     I  do  not  see  why  an  officer  in  the 
array  who  in  a  moment  of  irritation  strikes  a  blow  which 
kills  a  man  and  is  convicted  of  manslaughter,  should  lose 
his  commission  because' the  judge  sentences  him  to  imprison- 
ment with  hard  labour ;  nor  do  I  think  that  in  considering 
the  sentence  the  judge  ought  to  be  obliged   to  take  into 
account  the  fact  that  a  sentence  of  hard  labour  will  neces- 
sarily cost  the  offender  his  commission.     The  matter  seems 
to  me  to  be  one  for  the   military  authorities,  just  as  the 
question  whether  a  barrister  should   be  disbarred   upon  a 
conviction  is  a  question  for  the  Benchers  of  his  Inn. 

To  deprive  a  man  of  a  pension  or  superannuation  allowance, 
which  is  in  reality  deferred  pay  earned  by  work  done,  is  to 
keep  up  the  principle  of  forfeiture  of  property  as  a  punish- 
ment for  crime  in  a  special  class  of  cases  when  it  has  been 


PUNISHMENT   OF   MISDEMEANOURS.  489 

given  up  in  all  others.  Two  officers  of  a  bank  are  convicted  Ch.  Xlll. 
of  a  forgery  for  which  each  is  sentenced  to  a  year's  hard 
labour.  One  is  a  retired  Indian  civilian  with  a  pension  of 
£1000  a  year;  the  other  has  bought  a  life  annuity  of  the 
same  amount  out  of  his  savings  in  a  profession.  Why  is  the 
one  to  lose  his  pension  and  the  other  to  keep  his  annuity  ?  The 
pension  is  just  as  much  property  as  the  annuity.  It  is  part  of 
the  consideration  for  which  many  years  of  labour  were  given. 
Apart  from  this  why  when  removing  an  admitted  grievance  keep 
up  a  perfectly  irrational  distinction  between  the  punishment 
of  felons  and  the  punishment  of  misdemeanants  ?  Suppose 
that  two  other  persons — directors  of  the  same  bank — had 
fraudulently  misappropriated  its  funds  in  concert  with  the 
two  forgers,  but  by  means  amounting  only  to  misdemeanour. 
If  they  held  pensions  or  commissions  they  would  forfeit 
nothing,  even  if  they  were  sentenced  to  penal  servitude. 
Surely  this  is  highly  unjust.  It  seems  to  me  that  the  whole 
act,  except  the  section  which  abolishes  forfeiture,  should  be 
repealed.  If  its  provisions  are  not  wanted  in  cases  of  mis- 
demeanour they  are  not  wanted  at  all.  They  are  practically 
a  dead  letter  in  cases  of  felony. 

I  now  pass  to  the  punishments  provided  by  law  for  mis- 
demeanours.   As  I  have  already  said,  they  varied  in  an  even 
more  remarkable  manner  than  the  punishments  for  felonies, 
as  in   1839  there  were  no  less  than  ninety-six  classes   of. 
them.     I  will  notice  only  the  most  important. 

A  large  number  of  misdemeanours  were  created  by  statute 
at  different  times,  but  especially  in  the  eighteenth  and  nine- 
teenth centuries,  which  differ  in  no  essential  respect  from  the 
common  crimes  distinguished  as  felonies.  For  instance,  to 
obtain  goods  by  false  pretences,  to  misappropriate  securities 
intrusted  to  the  offender  as  an  agent,  solicitor,  or  banker,  and 
to  commit  many  other  fraudulent  or  mischievous  acts  are,  as 
far  as  moral  guilt  is  concerned,  on  a  level  with  theft.  They 
have  been  punished  by  transportation  and  imprisonment  with 
or  without  hard  labour  in  exactly  the  same  way  as  felonies, 
and  what  I  have  already  said  of  those  punishments  applies 
equally  to  both  classes  of  offences. 

But  apart   from   these   statutory  punishments   there   are 


490  PILLOEY. 

Ch.  XIII.  punishments  appointed  by  the  common  law,  both  for  mis- 
demeanours  at  common  law  and  also  for  those  statutory 
*  misdemeanours   for  which  no   punishment   is  provided   by 

statute.  These  are  fine  and  imprisonment  and  whipping. 
Whipping  has  never  been  formally  abolished  for  common  law 
misdemeanours,  though  I  believe  it  has  never  in  modern 
time  been  inflicted  except  under  the  provisions  of  some 
statute. 

The  statutory  rules  as  to  the  amount  of  the  fines  and  the 
length  of  the  imprisonment  which  the  court  may  impose,  are 
vague  to  the  last  degree.  I  know,  indeed,  of  two  only. 
The  first  is  the  provision  of  ^  Magna  Carta,  ch.  20,  "  Liber 
"  homo  non  amercietur  pro  parvo  delicto,  nisi  secundum 
"  modum  delicti,  et  pro  magno  delicto  amercietur  secundum 
"  magnitudinem  delicti  salvo  contenemento  suo ;  et  mercator 
"  eodem  modo  salva  mercandisa  sua ;  et  villanus  eoddhi  modo 
"  amercietur  salvo  wainagio  suo."  The  second  is  the  provision 
of  the  Bill  of  Rights  (1  Will.  &  Mary,  sess.  2,  c.  2),  "  that  ex- 
"  cessive  bail  ought  not  to  be  required,  nor  excessive  fines 
"  imposed,  nor  cruel  and  unusual  punishments  inflicted."  No 
doubt  the  floggings  to  which  Gates  and  some  others  were  sen- 
tenced were  the  "cruel  punishments"  which  Parliament  re- 
ferred to,  and  the  fine  of  £40,000  to  which  John  Hampden 
(the  grandson  of  the  celebrated  Hampden)  was  sentenced 
•in  1684,  would  be  one  of  the  "  excessive  fines."  The  severest 
sentence  for  a  common  law  misdemeanour  that  I  am  aware  of 
since  the  Revolution,  was  passed  upon  one  Hales  for  forging 
a  promissory  note  in  1729.  He  was  to  stand  twice  in  the 
pillory,  to  be  fined  fifty  marks,  be  imprisoned  for  five  years, 
and  find  security  for  his  good  behaviour  for  seven  years. 

The  pillory  was  abolished  in  all  cases  except  perjury  in 
1816  (56  Geo.  3,  c.  138),  and  was  abolished  absolutely  in 
general  terms  and  without  exception  in  1837  by  7  Will.  4, 
and  1  Vic.  c.  23. 

There  were,   and  in  a  sense  still  are,  certain  exceptional 

misdemeanours,  mostly  of  a  political,  or  ecclesiastico-political 

kind,  which  theoretically  subject  the  offender  to  punishments 

so  severe  that  they  are  never  inflicted.     It  is  said  that  for 

'  Stubbs,  Charters,  299. 


PR^MUNIRE — SANCTUARY.  491  - 

misprision  of  treason  an  offender  must  be  imprisoned  for  life  Ch.  xm. 
and  forfeit  his  property.  ^  There  are  a  variety  of  offences 
of  an  ecclesiastical  kind  such  as  "  depraving "  the  Book  of 
Common  Prayer,  and  a  minister  obstinately  refusing  to  use 
the  said  Common  Prayer,  for  which  the  offender  must  for  a 
third  offence  be  imprisoned  for  life.  There  are  also  some 
offences  for  which  the  penalty  of  a  "  praemunire  "  is  incurred. 
^This  is  said  to  involve  imprisonment  for  life,  or  during 
pleasure,  exclusion  from  the  queen's  protection,  and  for- 
feiture of  property.  These,  however,  are  little  more  than 
monuments  of  past  times,  devoid  of  any  interest  except 
by  way  of  antiquarian  curiosity. 

In  concluding  this  chapter  I  may  refer  shortly  to  a  branch 
of  the  law  which  has  been  obsolete  for  ages,  but  which,  when 
it  existed,  was  connected  with  benefit  of  clergy.  I  refer  to 
the  law  of  sanctuary.  In  very  early  times  a  criminal  who 
took  refuge  in  a  church  could  not  be  taken  from  it,  but  was 
allowed  to  take  before  a  coroner  an  oath  of  abjuration.  That 
is  to  say,  he  admitted  his  guilt,  and  swore  to  leave  the  realm 
for  life  at  a  place  appointed  for  that  purpose.  In  process  of 
time  abjuration  became  obsolete,  but  various  places  came  to 
be  privileged,  and  "  sanctuary  men "  were  allowed  to  live 
there  under  regulations,  some  of  which  were  imposed  by 
statute.  The  statutes  of  27  Hen.  8,  c.  19  (1537),  &  32 
Hen.  8,  c.  12  (1540),  show  how  this  system  worked.  The 
first  statute  enacts  that  sanctuary  men  are  to  wear  badges,  carry 
no  weapons,  and  to  be  to  a  certain  extent  under  the  control  of 
the  governors  of  the  sanctuaries.  An  abstract  of  the  latter 
statute,  printed  in  the  common  edition  of  lite  Statutes  at 
Large,  is  as  follows.  It  gives  correctly  the  effect  of  the  act  as 
printed  in  the  The  Statutes  of  the  Realm.  "  All  sanctuaries  and 
"  places  privileged  which  have  been  used  for  sanctuary  shall 
"  be  utterly  extinguished,  except  parish  churches  and  their 
"  churchyards,  cathedral  churches,  and  churches  collegiate,  and 
"  all  churches  dedicated,  used  as  parish  churches,  and  the 
"  sanctuaries  to  either  of  them  belonging,  and  Wells  in  the 

1  The  statutes  are  abstracted  in  my  Digest,  pj).  100,  101. 

"-  Coke,  1st  Inst.  130a.  See  offences  in  SeveiUh  Sep.  0.  0.  and  Com. 
p.  37.  The  Royal  Marriage  Act,  12  Geo.  3,  c.  11,  is,  1  think,  the  last  Act 
which  subjects  any  one  to  this  penalty. 


492  SANCTUARY. 

Ch.  XIII.  "  county  of  Somerset,  Westminster,  Manchester,  Northampton, 
"Norwich,  York,  Derby,  and  Lancaster.  None  of  the  said 
"  places  shall  give  immunity  of  defence  to  any  person  which 
"  shall  commit  wilful  murder,  rape,  burglary,  robbery  in  the 
"  highway,  or  in  any  house,  or  in  any  church  or  chapel,  or 
"  which  shall  bum  wilfully  any  house  or  bam  with  com.  He 
"  that  taketh  sanctuary  in  any  church,  churchyard,  &c.,  may 
"  remain  there  forty  days,  as  hath  been  used,  unless  the  coroner 
"  repair  to  him  to  take  his  abjuration,  in  which  case  he  shall 
"  abjure  to  any  of  the  foresaid  privileged  places,  not  being  full 
"  of  the  number  appointed  to  them,  viz.,  above  20  persons, 
"  there  to  remain  during  life.  If  a  privileged  person,  duly 
"  called  to  appear  before  the  governor,  shall  make  default 
"  three  days,  or  if  he  commit  any  felony,  he  shall  lose  the 
"  benefit  of  sanctuary.  A  privileged  person,  abjuring  to  any 
"  of  the  aforesaid  places,  shall  be  conducted  from  constable 
"  to  constable  directly  until  he  be  brought  to  the  governor 
"  of  the  said  privileged  place ;  and  if  that  place  be  full  of 
"  his  number  then  he  shall  be  conducted  to  the  next  privileged 
"  place,  and  so  to  the  next,  &c.,  until,  &c." 

In  1623  sanctuary  was  abolished  absolutely  by  21  Jas.  1, 
c.  28,  s.  7,  but  in  a  modified  form  sanctuaries  continued  appa- 
rently in  defiance  of  the  law  for  another  century,  so  far  at 
least  as  regards  the  execution  of  civil  process.  This  appears 
from  the  acts  of  8  &  9  Will.  3,  c.  27,  s.  15,  which  makes  it 
penal  in  sheriffs  not  to  execute  process  in  certain  "  pretended 
"  privileged  places,"  such  as  Whitefriars  and  the  Savoy ;  and 
9  Geo.  1,  c.  28  (1722)  and  11  Geo.  1,  c.  23,  which  contain 
provisions  against  resistance  to  process  in  "  certain  pretended 
"  privileged  places  "  in  the  Mint  and  Stepney.^ 

'  On  Sanctuary,  see  Pike's  HieUrry  of  Crime,  ii.  252-5,  and  elsewhere. 


MANAGEMENT   OF  PROSECOTIONS.  493 


CHAPTER  XIV. 

MANAGEMENT  OF  PROSECUTIONS. 

The  only  subject  connected  with  procedure  which  remains  q„  xiv. 

to  be  treated  is  that  of  the  manner  in  which  criminal  prosecu-       

tions  are  managed.  This  is  a  matter  of  the  highest  practical 
importance,  though  not  of  so  much  interest  as  some  of  the 
other  topics  which  I  have  had  to  discuss. 

In  most  countries  the  duty  of  making  a  preliminary  in- 
vestigation into  the  circumstances  of  an  offence,  collecting 
evidence  for  the  trial,  and  managing  the  case  in  court,  is  in 
the  hands  of  public  officers.  Throughout  the  Continent 
officers  are  to  be  found  answering  more  or  less  to  the  French 
Procureur  General,  Procureur  de  la  B^publique,  and  Juge 
d' Instruction.  Even  in  Scotland  the  Procurator  Fiscal  and 
his  officers  have  somewhat  analogous  duties,  and  in  Ireland, 
where  English  law  prevails  with  but  slight  variations,  a 
system  exists  by  which  prosecutions  are  conducted  principally 
by  solicitors  and  counsel  who  represent  the  Crown.  In 
England,  and,  so  far  as  I  know,  in  England  and  some  English 
colonies  alone,  the  prosecution  of  offences  is  left  entirely  to 
private  persons,  or  to  public  officers  who  act  in  their  capacity 
of  private  persons  and  who  have  hardly  any  legal  powers 
beyond  those  which  belong  to  private  persons. 

Incidentally  this  has  already  appeared  in  the  course  of  this 
work,  but  I  may  now  put  together  what  has  already  been 
stated. 

The  police  in  their  different  grades  are  no  doubt  officers 
appointed  by  law  for  the  purpose  of  arresting  criminals ;  but 
they  possess  for  this  purpose  no  powers  which  are  not  also 


494  PUBLIC   AND   PRIVA.TE   PEOSECUTORS    ON   SAME   FOOTING. 

Ch.  XIV.  possessed  by  private  persons.  They  are,  indeed,  protected  in 
arresting  innocent  persons  upon  a  reasonable  suspicion  that 
they  have  committed  felony,  whether  a  felony  has  in  fact 
been  committed  or  not,  whereas  the  protection  of  a  private 
person  in  such  a  case  extends  only  to  cases  in  which  a  felony 
has  been  committed,  and  they  are,  and  private  persons  are 
not,  under  a  legal  duty  to  arrest  when  the  occasion  arises,  but 
in  other  respects  they  stand  upon  precisely  the  same  footing 
as  private  persons.  They  require  a  warrant,  and  may  arrest 
without  a  warrant  in  the  same  cases.  When  they  have 
arrested  they  are  under  precisely  the  same  obligations.  A 
policeman  has  no  other  right  as  to  asking  questions  or 
compelling  the  attendance  of  witnesses  than  a  private 
person  has  ;  in  a  word,  with  some  few  exceptions,  he  may  be 
described  as  a  private  person  paid  to  perform  as  a  matter 
of  duty  acts  which,  if  so  minded,  he  might  have  done 
voluntarily. 

When  a  prisoner  has  been  arrested  and  is  brought  before  a 
magistrate,  the  magistrate's  duties  are  now  entirely  judicial. 
He  hears  the  evidence,  as  a  rule  to  which  there  are  hardly 
any  exceptions,  in  open  court.  He  is  provided  with  no  means 
of  making  inquiries,  though  he  can  issue  summonses  for  the 
attendance  of  witnesses  if  he  is  informed  by  others  as  to 
their  knowledge,  but  it  is  no  one's  legal  official  duty  to 
inquire  into  the  matter.  As  a  fact  the  duty  is  undertaken 
by  the  police,  who,  in  cases  of  any  importance,  are  usually 
authorised  by  the  superior  police  authorities  to  instruct  a 
solicitor,  who,  in  some  cases,  instructs  counsel  to  appear  before 
the  magistrates  to  prosecute.  If,  as  is  often  the  case,  there 
is  a  private  prosecutor,  he  can,  and  does,  manage  the  whole 
matter,  as  he  might  manage  any  other  action  at  law;  he 
employs  a  solicitor  who  may  or  may  not  instruct  counsel,  and 
who  takes  the  proofs  of  witnesses,  brings  them  before  the 
committing  magistrate  and  the  grand  jury,  instructs  counsel 
at  the  trial,  and,  in  a  word,  manages  the  whole  of  the 
proceedings  just  as  he  would  in  a  civil  cause. 

The  course  pursued  is  precisely  the  same  in  all  cases,  and 
whoever  may  be  the  prosecutor.  A  prosecution  for  high 
treason,  conducted  by  the  Attorney-General,  differs  in  no  one 


ATTOENEY-GENERAL.  495 

particular  in  matter  of  principle  from  the  prosecution  of  a  ch.  XIV, 
servant  by  his  master  for  embezzling  half-a-crown. 

No  person  has  any  legal  power  for  the  collection  of 
evidence,  or  for  its  production  before  the  magistrate,  or  in 
appearing  before  the  court  by  which  the  matter  is  finally 
determined  in  the  one  case  which  the  person  placed  in  a 
corresponding  situation  has  not  in  the  other.  When  the 
Attorney-General  conducts  the  most  important  State  prose- 
cutions before  the  Queen's  Bench  Division,  he  has  (with  one 
or  two  not  very  important  exceptions)  identically  the  same 
powers  and  duties  as  the  youngest  counsel  at  the  bar  on  the 
prosecution  of  a  petty  thief  at  the  Middlesex  Sessions. 

The  Director  of  Public  Prosecutions,  when  he  has  instituted 
a  prosecution  for  the  most  serious  offence,  and  one  in  which 
the  whole  country  has  a  deep  interest,  has  no  other  powers 
than  a  private  person  would  have  in  respect  of  the  prosecution 
of  a  fraud  which  affected  no  one  but  himself 

It  is  perhaps  even  more  singular  that  the  converse  is  true. 
Every  private  person  has  exactly  the  same  right  to  institute 
any  criminal  prosecution  as  the  Attorney-General  or  any  one 
else.  A  private  person  may  not  only  prosecute  any  one  for  high 
treason  or  a  seditious  conspiracy,  but  A  may  prosecute  B 
for  a  libel  upon  C,  for  an  assault  upon  D,  or  a  fraud  upon  E, 
although  A  may  have  no  sort  of  interest  in  the  matter,  and 
C,  D,  and  E,  may  be  altogether  averse  to  the  prosecution. 

The  rule  of  the  French  law,  and  I  believe  of  most  other 
continental  countries,  is  that  prosecutions  having  punishment 
for  their  object  can  be  instituted  only  by  pubhc  authority, 
but  that  a  person  injured  by  a  crime  may  join  in  the 
prosecution  as  the  partie  civile,  under  certain  rules. 

The  English  system  has  no  doubt  its  disadvantages,  and  is 
capable  of  being  made  to  look  extravagant  by  crude  state- 
ments (like  those  just  given)  of  the  results  which  might 
follow  from  it  if  it  were  pushed  to  an  extreme.  It  never  is 
pushed  to  an  extreme,  however :  first,  because  a  jury  as  soon 
as  the  character  of  such  a  prosecution  as  I  have  suggested 
was  exposed,  would  be  certain  to  acquit,  unless  there  were 
some  extraordinary  reason  for  sanctioning  it ;  and  secondly, 
because  the  result  of  such  an  acquittal  would  be  an  action 


49*5  PEOSEGUTIONS,   HOW   CONDUCTED. 

Ch.  XIV.  for  malicious  prosecution  followed  by  a  verdict  for  exemplaiy 
damages.  Besides  which,  the  management  of  a  criminal 
prosecution  is  so  expensive,  so  unpleasant,  and  so  anxious  a 
business,  that  no  one  is  likely  to  undertake  it  without  strong 
reasons. 

On  the  other  hand,  no  stronger  or  more  effectual  guarantee 
can  be  provided  for  the  due  observance  of  the  law  of  the 
land,  by  all  persons  under  all  circumstances,  than  is  given  by 
the  power,  conceded  to  every  one  by  the  English  system,  of 
testing  the  legality  of  any  conduct  of  which  he  disapproves, 
either  on  private  or  on  public  grounds,  by  a  criminal  prosecu- 
tion. Many  such  prosecutions,  both  in  our  days  and  in 
earlier  times,  have  given  a  legal  vent  to  feelings  in  every 
way  entitled  to  respect,  and  have  decided  peaceably,  and  in 
an  authentic  manner,  many  questions  of  great  constitutional 
importance. 

The  unlimited  power  to  institute  prosecutions  does  not 
carry  with  it  an  unlimited  control  over  them  when  they  are 
instituted.  When  a  charge  has  been  made  the  maker  of 
it  is  usually  bound  over  to  prosecute,  and  when  a  bill  has 
been  sent  before  the  grand  jury,  the  matter  is  entirely  oat  of 
the  original  prosecutor's  hands,  and  must  run  its  course, 
unless  the  court  before  which  it  is  to  be  tried  sanctions  the 
withdrawal  of  the  charge,  or  unless  the  Attorney-General  as 
the  representative  of  the  Crown,  the  nominal  prosecutor, 
enters  a  nolle  prosequi,  which  operates  not  as  an  acquittal, 
but  as  a  stay  of  proceedings  upon  the  particular  case  to 
which  it  refers. 

I  do  not  think  that  the  existence  of  this  state  of  the  law 
can  properly  be  regarded  as  the  result  of  design.  It  seems 
rather  to  have  been  the  effect  of  historical  causes  already 
referred  to.  One  cause  is  no  doubt  to  be  found  in  the 
system  of  appeals  or  private  accusations.  They  were  in 
nearly  every  respect  in  the  nature  of  civil  actions,  and  were 
conducted  like  other  private  litigations.  But  another  cause 
is  to  be  found  in  the  history  of  trial  by  jury.  So  long  and 
so  far  as  trial  by  jury  retained  its  original  character  of  a 
report  made  by  a  body  of  official  witnesses  of  facts  within 
their  own  knowledge,  a  criminal  trial  was  a  public  inquiry, 


JUSTICES   OF  THE  PEACE.  497 

or  rather  a  report  upon  a  public  inquiry,  into  the  truth  of  Ch.  xiv. 

an  accusation   of   crime,  but   when  the  jury  assumed   its       

present  character  the  preparation  of  a  case  for  trial  consisted 
no  longer  in  inquiries  made  by  the  jurymen  themselves,  but 
in  the   collection   of    evidence   to   be   submitted   to  them. 
No  direct  express  provision  was  ever  made  for  this  purpose, 
unless  the  appointment  of  justices  of   the  peace  is  to  be 
regarded  in  that  light.     Justices  did  no  doubt  concern  them- 
selves with  the  detection  and  apprehension  of  offenders  and 
the  collection  of  evidence  against  them  to  a  greater  extent 
and  down  to  a  later  period  than  is  commonly  known,  and  to 
that  extent  they  may  be  regarded  as  having  for  some  centuries 
discharged  more  or  less  efficiently  and  completely  the  duties 
which  in  other  countries  are  imposed  upon  public  prosecutors. 
By  degrees,  however,  their   position  became   that   of  pre- 
liminary judges,  and  the  duties  which   they  had  originally 
discharged  devolved  upon  the  police,  who  have  never  been 
intrusted  with  any  special  powers  for  the  purpose  of  dis- 
charging them.      It  was  thus  by  a  series  of  omissions  on  the 
part  of  the  legislature  to  establish  new  officers  for  the  admin- 
istration of  justice  as  the  old  methods  of  procedure  gradually 
changed  their  character,  that  English  criminal  trials  gradually 
lost  their  original  character  of  public  inquiries,  and  came  to 
be  conducted  in  almost  precisely  the  same  manner  as  private 
litigations.     Perhaps  the  strongest  illustration  of  the  length 
to  which  this  process  has  gone  is  to  be  found  in  the  way  in 
which  business  is  conducted  before  a  coroner.     The  coroner 
was  the  predecessor  of  the  justice  of  the  peace,  and  it  was 
his   duty   on   the   one  hand  to  receive  appeals   or  private 
accusations,  and  on  the  other  to  inquire  into  cases  of  homicide 
in  the  interest  of  the  public.     The  inquiry  was  made  origi- 
nally by  the  reeve  and  the  four  men  of  a  certain  number  of 
townships.     It  is  now  made  by  a  jury  before  which  witnesses 
may  be,  and  are,  summoned,  but  if  the  inquiry  appears  likely 
to  result  in  a  criminal  charge,  the  inquest  practically  assumes 
the  form  of  a  litigation.     The  friends  of  the  deceased  and 
the  suspected  person  are  represented  by  advocates,  and  are 
entitled,  or  at  all  events  permitted,  to  examine  and  cross- 
examine  witnesses  exactly  as  if  the  suspected  person  whom  it 

VOL.    I.  K   K 


498 


COSTS  OF  PROSECUTIONS. 


Ch.  XIV.  is  proposed  to  accuse  was  on  his  trial,  and  the  coroner  and 
jury  occupy  a  position  closely  analogous  to  those  of  a  judge 
and  a  jury,  and  very  unlike  the  positions  of  persons  holding 
an  inquiry  and  pursuing  their  own  independent  investigations 
for  the  discovery  of  the  truth. 

One  circumstance  which  practically  left  the  whole  business 
of  originating  and  conducting  prosecutions  in  private  hands, 
and  so  gave  to  the  whole  procedure  its  character  of  a  private 
litigation,  was  the  fact  that  till  about  a  century  ago  private 
persons  had  to  pay  all  the  costs  of  every  prosecution.  This 
was  complained  of  by  Lord  Hale.  ^"It  is,"  he  said,  "a 
"  great  defect  in  the  law,  to  give  courts  of  justice  no  power 
"  to  allow  witnesses  against  criminals  their  charges  therein,  to 
"  their  great  hindrance  and  loss."  ^  Fielding  in  his  essay  on 
the  causes  of  the  increase  of  robberies,  repeats  and  enforces 
this  complaint.  The  extreme  poverty  of  prosecutors,  he 
says  is  one  cause  of  the  escape  of  offenders.  "  This  I 
"  have  known  to  be  so  absolutely  the  case  that  the  poor 
"  wretch  who  hath  been  bound  to  prosecute  was  under  more 
"  concern  than  the  prisoner  himself.  It  is  true  the  necessary 
"  cost  on  these  occasions  is  extremely  small :  two  shillings, 
"  which  are  appointed  by  Act  of  Parliament  for  drawing  the 
"  indictment,  being,  I  think,  the  whole  which  the  law  requires, 
"  but  when  the  expense  of  attendance,  generally  with  several 
"  witnesses,  sometimes  during  several  days  together,  and  often 
"  at  a  great  distance  from  the  prosecutor's  home  ....  are 
"  summed  up,  and  the  loss  of  time  added  to  the  account,  the 
"  whole  amounts  to  an  expense  which  a  very  poor  person 
"  already  plundered  by  the  thief  must  look  on  with  such  horror 
"  that  he  must  be  a  miracle  of  public  spirit "  if  he  prosecutes. 
The  first  scheme  for  the  remedy  of  this  evil  was  ^  to  provide 
by  statute  rewards  for  successful  prosecutions.  But  this 
system  was  replaced  by  a  more  reasonable  one  authorizing 
the   court  to   order  payment   of    costs  in  cases  of  felony. 

'  Qaoted  by  Fielding,  ubi  infra.  ^   Works,  vol.  x.  p.  371 — 72. 

'  A  list  may  be  seen  in  Chitty's  Criminal  Law,  821 — 24.  One  of  the  rewards 
given  was  grotesque.  If  a  man  prosecuted  certain  kinds  of  felons  to  con- 
viction he  was  entitled  to  a  certificate  (which  was  originally  transferable  once) 
freeing  the  holder  from  the  obligation  of  holding  certain  parish  offices.  This 
was  called  a  "  Tyburn  ticket,"  and  in  some  parishes  at  particular  times  sold 
for  a  large  sum. 


ATTORNEY   AND   SOLICITOR  GENERAL.  499 

Several  statutes  dealt  with  this  subject  successively.  The  Ch.  XIV. 
first  statute  of  importance  was  18  Gteo.  3,  c.  19  (a.d.  1778), 
which  was  followed  by  58  Geo.  3,  c.  52  (a.d.  1818).  The 
Acts  now  in  force  on  the  subject  are  7  Geo.  4,  c.  64,  14  & 
15  Vic.  c.  55,  and  the  i  five  Consolidation  Acts  of  1861.  The 
result  of  these  statutes  is  that  the  court  may  allow  costs  to 
prosecutors  in  all  cases  of  felony,  and  in  all  common  cases  of 
misdemeanour.  The  legislation  on  the  subject  is  scattered, 
cumbrous,  and  in  some  points  capricious,  as  the  misdemean- 
ours in  respect  of  which  costs  may  be  given  are  chosen  with- 
out much  reference  to  principle.  It  would,  however,  be 
foreign  to  my  purpose  to  go  into  minute  detail  on  the  subject. 

In  concluding  this  subject  I  may  mention  very  shortly 
some  particulars  as  to  the  different  persons  by  whom  criminal 
prosecutions  are  conducted  in  court,  and  as  to  the  part  which 
they  take  in  the  matter. 

The  highest  in  rank  are  the  law  officers  of  the  Crown,  the 
Attorney  and  Solicitor  General. 

The  origin  of  these  offices  is,  I  believe,  unkntfwn,  but  it  is 
obvious  that  the  king  must  have  been  represented  by  counsel 
in  his  courts  from  the  earliest  time  when  counsel  were  em- 
ployed at  all  in  courts  of  justice  ;  and  that  they  must  have 
been  employed  from  the  very  earliest  times  is  obvious  from 
the  extremely  minute  and  rigidly  technical  procedure  which 
was  inforced  in  the  case  of  appeals.  It  has  been  conjectured 
that,  as  in  old  times  the  king  had  special  attorneys  or  repre- 
sentatives in  particular  courts,  as  e.g.  in  the  Court  of  Wards, 
the  title  of  the  Attorney-General  means  that  the  person  who 
held  it  represented  the  king  in  all  courts.  This,  however, 
seems  to  me  doubtful.  The  expression  "  general  attorney  " 
meant  no  more  than  general  agent  or  representative,  and 
other  persons  besides  the  king  had  attorneys-general.  Thus, 
in  the  Statute  of  Westminster  the  Second  (a.d.  1283),  13 
Edw.  1,  c.  10,  it  is  enacted  that  "such  as  bave  land  in 
"  divers  shires  where  the  justices  make  their  circuit,  and 
"  that  have  land  in  shires  where  the  justices  have  no 
"  circuit,  that  fear  to  be  impleaded  and   are   impleaded  of 

1  24  &  25  Vic   oc.  96,  97,  98,  99,  100. 
»  Dig  Grim.  Proc.  tirte.  316-331. 

K   K    2 


500  PRIVATE   ATTORNEYS   GENEEAL. 

Ch.  XIV.  "  tKeir  lands  in  shires  where  they  have  no  circuit,  as  before 
"  the  justices  at  Westminster,  or  in  the  King's  Bench,  or 
"  before  justices  assigned  to  take  assizes,  or  in  any  county 
"  before  sheriffs,  or  in  any  court  baron,  may  make  a'  general 
"  attorney  to  sue  for  them  in  all  pleas  in  the  circuit  of  jus- 
"  tices,  moved  or  to  be  moved  for  them  or  against  them  during 
"  the  circuit,  which  attorney  or  attorneys  shall  have  full 
"  power  in  all  pleas  moved  during  the  circuit,  until  the  plea 
"  be  deterniined  or  that  his  master  removeth." 

This  provision  forms  part  of  a  statute  introduced  to  prevent 
suits  from  being  brought  behind  the  backs  of  defendants.  It 
shows  that  in  very  early  times  personal  attendance  in  court 
was  necessary  if  a  man  meant  to  protect  his  interests,  and 
that  persons  who  had  much  to  lose  had  need  of  an  attorney- 
general  to  protect  their  interests.  A  curious  instance  of  this 
occurs  in  Shakespeare.  In  Richard  II.,  Act  II.  Sc.  1,  York, 
in  attempting  to  dissuade  Eichard  II.  from  confiscating 
Bolingbroke's  property,  says  : 

"  If  you  do  wrongfully  seize  Hereford's  rights, 

"  Call  in  the  letters  patent  that  he  hath 

"  By  his  attorneys-general  to  sue 

"  Sis  livery,  and  deny  his  offer'd  homage, 

"  You  pluck  a  thousand  dangers  on  youi-  head." 

However  this  may  be,  ^Mr.  Foss  gives  a  list  of  sixteen 
"  Attornati  regis  "  who  held  office  between  1277  and 
1304.  They  were  not  originally  the  highest  of  the  law 
officers.  Till  the  Civil  Wars  ^  the  King's  Serjeant  usually 
managed  state  prosecutions,  and  the  proclamation  made  in. 
court  when  a  batch  of  persons  are  arraigned  for  felony, 
"  Whoever  can  inform  the  Queen's  Serjeant,  the  Queen's 
"  Attorney-General,"  &c.  In  early  times  before  juries  heard 
evidence  there  could  have  been  but  little  for  the  counsel  for 
the  Crown  to  do  in  criminal  trials,  and  neither  Fortescue  nor 
Smith,  in  their  accounts  of  the  routine  of  criminal  justice 
take  any  notice  of  their  interference,  though  the  accounts  of 

^  Judges  of  England,  iii.  45. 

'  Blackstone  (iii.  28)  gives  a  table  of  precedence  at  the  Bar,  which  begins 
thus  ;— (1)  The  King's  Premier  Sergeant,  (2)  the  King's  Ancient  Sergeant, 
(3)  the  King's  Advocate-General,  (I)  the  King's  Attorney-General,  (5)  the 
King's  Solicitor-General. 


BIRECTOR  OF   PUBLIC   PROSECUTIONS.  5°^ 

various  trials  in  the  sixteenth  century  show  that  at  that  time  Ch.  XIV., 
the  counsel  for  the  Crown  took  an  even  more  active  and 
prominent  part  in  the  proceedings  than  they  do  at  present. 

When  by  degrees  criminal  trials  assumed  their  present 
form  all  the  counsel  in  the  case  on  both  sides  found  them- 
selves practically  on  an  equality.  The  Attorney-General  has 
no  authority  in  court  beyond  that  which  his  abilities  and 
eminence  may  give  him,  with  the  following  exceptions; — 
He  can,  by  filing  a  criminal  information,  put  a  man  on  his, 
trial  without  sending  a  bill  before  a  grand  jury ;  he  can  stop 
a  prosecution  by  entering  a  nolle  prosequi,  and  he  has  the 
right  to  reply  whether  the  prisoner  calls  witnesses  or  not. 

Till  the  year  1879  the  Attorney-General  was  the  only 
person  who  answered  in  any  degree  to  the  description  of  a 
public  prosecutor,  but  in  that  year  an  Act  was  passed  for 
the  appointment  of  an  officer  called  "  the  Director  of  Public 
"Prosecutions"  (42  &  43  Vic.  c.  22).  The  Act  confers  no 
power  whatever  on  the  Director  of  Public  Prosecutions  which  it 
required  legislation  to  give,  except  powers  of  a  very  technical 
kind  (see  ss.  5  and  6),  and  his  duties  seem  to  amount  to  little 
else  than  those  which  the  solicitor  to  the  treasury  used  to 
discharge  when  directed  to  take  up  a  case  for  the  govern- 
ment, and  which  any  private  solicitor  might  discharge  for  his 
client.  He  is  to  "institute,  undertake,  or  carry  on  criminal 
"  proceedings  under  the  superintendence  of  the  Attorney- 
"  General,"  and  to  give  advice  and  assistance  to  "  chief  officers 
"  of  police,  clerks  to  justices,  and  other  persons  concerned  in 
"  any  criminal  proceedings." 

Though  the  law  of  England  concedes  to  private  persons  a 
control  which  in  practice  is  almost  unlimited  over  criminal 
prosecutions,  it  nevertheless  does  not  regard  a  criminal 
prosecution  as  being  to  all  intents  a  private  action.  "Where 
one  person  has  a  civil  claim  against  another  he  can  settle 
it  on  such  terms  as  he  thinks  proper,  but  he  cannot  do  so 
with  respect  to  criminal  proceedings.  The  law  upon  the 
subject  is  by  no  means  clear,  but  in  general  tei-ms  it  is  as 
follows  : — 

1.  The  fact  that  the  person  injured  by  a  crime  has  agreed 
not  to  prosecute  the  criminal  is  no  defence  to  the  criminal. 


502  COMPOUNDING  OFFENCES. 

Ch.  XIV.  In  a  civil  proceeding  it  would  be  a  good  defence  to  any  claim 
to  allege  that  it  had  been  compromised,  but  in  -criminal 
proceedings  such  a  plea  would  not  be  permitted. 

2.  It  is  not  quite  clear  whether  an  agreement  not  to 
prosecute  an  offender  is  in  itself  a  crime.  ^  It  is  commonly 
said  to  be  a  misdemeanour  to  agree  not  to  prosecute  a  person 
for  felony,  but  there  is  singularly  little  authority  on  the 
subject. 

In  ancient  times  it  was  an  offence  called  "  theft  bote  "  to 
receive  back  stolen  property  upon  an  agreement  not  to 
prosecute  the  thief. 

3.  ^  It  does  not  appear  to  be  a  misdemeanour  to  agree  not 
to  prosecute  a  person  for  misdemeanour,  but  such  an  agree- 
ment is  generally  speaking  void,  as  being  contrary  to  public 
policy.  There  probably  is  an  exception  to  this  in  the  case 
of  misdemeanours  in  which  the  public  have  no  substantial 
interest,  as,  for  instance,  the  case  of  a  common  assault,  or  a 
libel  on  a  private  person. 

^  In  some  cases  the  court  will,  before  passing  sentence  in  a 
case  of  misdemeanour,  allow  the  defendant  and  the  person 
injured  to  come  to  terms,  in  consideration  of  which  the  court 
will  pass  a  light  or  even  a  nominal  sentence. 

4.  *It  is  an  offence  to  compound  a  penal  action  without 
the  leave  of  the  court,  and  to  take  a  reward  corruptly  for 
helping  any  person  to  recover  goods  stolen,  or  otherwise 
criminally  obtained. 

On  the  Continent  a  person  injured  by  a  crime  may  usually 
come  in  as  what  is  called  in  French  law  the  "  partie  civile  " 
to  a  criminal  proceeding.  This  is  unknown  in  England,  and 
till  very  lately  it  was  considered  that  where  a  private  person 
was  injured  by  a  felony  the  civil  remedy  was  suspended  till 
the  felon  was  convicted.   On  the  other  hand,  upon  his  convic- 

'  See  my  Digest,  art.  158,  p.  94.  The  reference  there  should  be  1  Hale, 
619,  instead  of  2  Hale,  619.  The  article  goes  a  little  beyond  Hale's  authority, 
but  is  founded  on  precedents  of  indictments  giTen  in  Chitty,  See  too 
Arehbold,  896. 

^  The  fullest  authority  on  this  subject  is  Keir  ii.  Leeman,  6  Q.B.  308,  and 
game  case  in  Cam.  Scacc.  371. 

3  Euss.  Cr.  293. 

*  See  my  Digest,  articles  159  &  354(a),  and  18  Eliz.  c.  5,  ss.  4  &  5,  and  24 
t  2.5  Vic.  0.  96,  =.  101. 


COMPOUNDING  OFFENCES.  503 

tion  the  remedy  ceased  to  be  worth  having,  as  his  goods  were  Ch.  XIV. 
forfeited.  As  forfeiture  for  felony  has  been  abolished,  this 
last  remark  no  longer  applies,  and  the  case  of  ^  Wells  v. 
Abrahams  has  thrown  a  good  deal  of  doubt  on  the  general 
doctrine,  by  showing  that  even  if  the  rule  exists  it  is  practi- 
cally impossible  to  enforce  it,  unless  special  circumstances 
make  it  necessary  to  do  so  in  the  public  interest. 

1  L.R.  7  Q.B.  334 ;  and  see  Osbcine  v.  Gillett,  L.R.  8  Ex.  89. 


504  ENGLISH   COUKTS. 


CHAPTER  XV. 

GENERAL   AND   COMPARATIVE   VIEW   OF  ENGLISH  AND  FRENCH 
CRIMINAL   PROCEDURE. 

Ch.  XV.  Having  related  at  length  the  history  of  the  criminal 
courts,  and  of  every  step  of  the  procedure  pursued  in  them 
for  the  purpose  of  bringing  criminals  to  justice,  I  propose  in 
the  present  chapter  to  make  some  general  observations  upon 
the  system  and  to  point  out  such  of  the  reforms,  which  it  seems 
to  me  to  require,  as  have  not  been  discussed  in  earlier  parts 
of  the  work.  For  this  purpose  I  shall  comment  upon  the 
provisions  relating  to  procedure  proposed  to  be  made  by  the 
Draft  Criminal  Code  of  1879 ;  and,  in  order  to  set  the 
special  character  of  the  whole  system  in  as  clear  a  light  as 
possible,  I  shall  compare  or  contrast  it  with  the  French  Code 
d' Instruction  Griminelle. 

First,  as  to  the  English  courts  of  justice.  The  only  point 
of  importance  to  be  observed  in  connection  with  them  is  that 
though  their  history  is  intricate,  and  though  their  present 
condition  displays  some  singular  traces  of  their  origin,  they 
form  a  system  of  extreme  unity  and  simplicity.  There  is, 
practically  speaking,  only  one  superior  criminal  court,  judges 
from  which  sit  four  times  every  year  either  in  or  for  every 
county  in  England,  and  twelve  times  a  year  in  and  for 
London  and  its  neighbourhood. 

There  are  numerous  local  Courts  of  Quarter  Sessions, 
which  sit  for  the  trial  of  offences  of  less  importance  four 
times  a  year  in  every  county  and  borough  in  England,  and 
in  some  cases  six  times  a  year,  and  here  and  there  even 
more  frequently. 


ENGLISH   COURTS.  505 

Some  few  little  alterations  as  to  these  courts  miglit  be  Ch,  XV. 
suggested.  It  would  be  easy,  for  instance,  to  have  a  single 
criminal  court  for  all  England,  and  so  to  supersede  the  neces- 
sity for  issuing  Commissions  of  Oyer  and  Terminer  and  Gaol 
Delivery,  but  this  would  make  no  real  change  either  in  the 
constitution  or  in  the  procedure  of  the  courts.  It  would  also 
be  possible,  and  I  think  it  would  be  desirable,  to  group  the 
counties  for  assize  purposes  at  all  the  assizes,  as  is  now  the 
practice  at  the  spring  and  autumn  assizes,  but  this  is  a  very 
small  matter.  I  know  of  no  proposal  worth  mentioning  for 
any  alteration  in  the  constitution  of  the  ^  superior  criminal 
courts,  except  such  as  relate  to  the  institution  of  a  Court  of 
Criminal  Appeal,  as  to  which  I  have  already  expressed  my 
opinion.  The  same  observation  applies  to  the  Borough  Courts 
of  Quarter  Sessions,  in  which  Eecorders  appointed  by  the 
Crown  are  the  judges.  As  to  the  County  Courts  of  Quarter 
Sessions,  though  the  magistrates  who  are  the  judges  are 
appointed  by  the  Crown,  the  chairmen  are  chosen  by  the 
magistrates  from  their  own  number.  It  has  sometimes  been 
doubted  whether  there  ought  not  to  be  paid  chairmen,  being 
barristers.  ^  In  Middlesex  there  is  such  an  officer.  I  should 
be  sorry  to  see  a  general  change  in  this  matter,  as  a  large 
proportion  of  the  chairmen  of  Quarter  Sessions  whom  I  have 
known  were  judges  c[uite  good  enough  for  their  duties  ;  but  I 
think  that  power  might  be  given  to  the  justices  of  counties 
to  appoint  paid  chairmen,  being  barristers  of  some  standing, 
if  the  number  of  prisoners  to  be  tried  and  the  importance  of 
the  cases  for  trial  required  it.  A  small  payment  would  be 
sufficient  to  secure  the  services,  for  such  a  purpose,  of  men  of 
considerable  professional  eminence,  as  the  position  would  be 
pleasant  and  a  professional  distinction,  and  as  the  work  would 
not  be  great.  The  jurisdiction  of  the  Courts  of  Quarter 
Sessions  might  also  be"  increased  with  advantage.     There  can 

^  Whether  the  election  of  the  Recorder  of  London  by  the  Aldermen  and  the 
election  of  the  Common  Serjeant  by  the  Common  Council  is  a  good  arrange- 
ment, forming,  as  it  does,  the  only  exception  of  importance  to  the  general 
rule  that  judges  should  not  be  elective,  may  be  a  question.  All  corporation.^ 
mentioned  in  the  Municipal  Refonn  Act  were  deprived  by  it  of  the  power  of 
appointing  their  Recorders. 

'■'  See  7  &  8  Vic.  c.  71  ss.  8-10,  which  empowers  the  appointment  by  the 
Crown  of  an  assistant-judge  and  a  deputy. 


506  ENGLISH   PROCEDURE   LITIGIOUS. 

Ch.  XV.  be  no  reason  why  they  should  not  try  cases  of  burglary, 
which  in  these  days  are  generally  little  worse  than  common 
thefts,  but  it  might  be  well  to  restrict  them  in  respect  of 
the  sentence  to  be  passed,  say  to  seVen  or  ten  years'  penal 
servitude,  and  to  empower  them  to  send  cases  which 
seemed  to  require  a  more  serious  punishment  (as,  for 
instance,  when  violence  was  used)  to  be  tried  at  the  assizes. 
A  proposal  to  this  effect  was  made  in  the  Draft  Code, 
s.  434. 

Passing  from  the  courts  of  justice  to  the  procedure,  I  may 
observe  in  the  first  place  that,  as  it  now  stands,  it  is  from 
first  to  last  distinguished  by  one  characteristic  feature.  It 
has  come  by  the  steps  already  described  to  be  preeminently 
litigious,  and  hardly  at  all  inquisitorial.  English  criminal 
proceedings  are  from  their  very  first  institution  and  at  every 
stage  closely  assimilated  to  proceedings  for  the  prosecution  of 
a  civil  action.  This  may  seem  not  to  apply  to  the  pre- 
liminary steps  in  such  proceedings — the  arrest  of  the  prisoner, 
his  examination  before  the  committing  magistrate,  and  his 
imprisonment  till  he  is  tried.  Even  here,  however,  the  re- 
semblance is  much  stronger  than  would  appear  at  first  sight. 
The  arrest  and  imprisonment  of  a  person  suspected  of  crime 
are  precisely  analogous  to  the  law  of  arrest  on  mesne  process, 
by  which  a  defendant  could,  till  recent  times,  be  arrested  and 
imprisoned  till  the  trial  of  an  action  against  him,  or  till  he 
found  bail.  The  proceedings  before  the  magistrate  are  a 
great  advantage  to  the  suspected  person,  as  in  any  case  they 
give  him  notice  of  the  case  against  him,  and  enable  him  to  pro- 
vide for  his  defence,  and  as  they  may  lead  practically  (though 
not  in  theory)  to  his  discharge  and  virtual  acquittal.  They 
put  him  in  a  position  infinitely  more  favourable  than  that  of 
a  defendant  in  a  civil  action.  The  defendant  in  an  action 
must  put  in  a  statement  of  defence,  admitting,  denying,  or 
explaining  every  material  fact  alleged  against  him  in  the 
statement  of  claim.  He  must  also  make  an  affidavit  of  the 
documents  in  his  possession  bearing  on  the  subject,  give  dis- 
covery of  them  to  his  antagonist,  and  answer  interrogatories. 
He  must  in  short  completely  disclose  his  defence,  and  to 
a   considerable   extent  disclose-  the   evidence   by  which   he 


CRIMINAL  TRIALS  AND   CIVIL  ACTIONS.  5°? 

proposes  to  sustain  his  defence,  before  he  comes  to  trial.  CiOCV. 
A  prisoner  charged  with  crime  is  subject  to  no  such  necessity. 
He  has  an  opportunity  before  he  is  committed  for  trial  of 
saying  whatever  he  pleases,  but  he  cannot  be  asked  a  single 
question  at  any  stage  of  the  proceedings  except  the  formal 
one,  "  Are  you  guilty  or  not  guilty  ? "  and  if  he  does  not 
answer  even  that  single  question  the  omission  to  do  so  has  no 
effect  whatever,  as  a  plea  of  not  guilty  is  entered  for  him 
Besides  this  a  prisoner  cannot  be  detained  in  custody  indefi- 
nitely in  order  to  enable  the  prosecutor  to  get  up  the  case 
against  him.  He  can  insist,  under  the  Habeas  Corpus  Act, 
on  being  tried  after  one  adjournment  at  most  for  which 
definite  cause  must  be  shown.  Lastly,  the  trial  which  deter- 
mines the  question  of  his  guilt  or  innocence  is  conducted 
precisely  in  the  same  manner  as  the  trial  of  a  civil  action, 
subject  only  to  the  circumstance  that  the  rule  which  rendered 
the  parties  to  an  action  incompetent  witnesses  in  civU  cases 
has  not  in  criminal  proceedings  been  so  far  relaxed  as  to 
make  the  prisoner  competent  or  compellable  to  give  evidence. 
This  single  distinction  between  civil  and  criminal  proceedings 
has  been  made  or  rather  maintained  in  the  supposed  interests 
of  the  prisoner. 

In  the  earlier  chapters  of  this  volume  I  have  made  such 
observations  as  occurred  to  me  upon  the  different  stages  of 
criminal  procedure.  I  will  now,  in  order  to  give  a  general 
view  of  the  whole  subject,  review  that  part  of  the  '  Draft 
Criminal  Code  of  1879,  which  related  to  procedure,  noticing 
the  changes  which  it  proposed  to  make  in  the  law  as  it  then 
stood  and  still  stands.  This  part  of  the  Draft  Code  forms 
Title  VII.  of  the  Draft,  and  contains  125  sections  divided  into 
ten  parts  or  chapters.  It  is  arranged  very  nearly  in  the  same 
order  as  the  present  volume,  except  that  as  it  did  not  propose 
to  make  any  alteration  in  the  constitution  of  the  existing 
criminal  courts,  ordinary  or  extraordinary,  or  in  the  constitu- 
tion of  the  police  establishment  it  takes  no  notice  of 
those  matters. 

The  first  important  alteration  in  the  existing  law  of  proce- 

'  The  circumstances  in  which  this  bill  originated  arc  stated  in  the 
preface. 


508  DBAFT   CODE — AMENDMENTS   IN   PBOCEDURE. 

Ch.  XV.  dure  proposed  to  be  made  by  the  Draft  Code  was  ^  the  abolition 
of  the  distinction  between  felonies  and  misdemeanours. 
This  was  treated  as  a  matter  of  procedure,  because  as  the  law 
now  stands  there  is  practically  no  distinction  between  the 
punishments  allotted  to  felonies  and  misdemeanours,  many 
misdemeanours  (for  instance,  conspiracy  to  murder,  frauds  by 
trustees,  perjury,  and  the  obtaining  of  goods  by  false  pretences) 
being  punishable  by  penal  servitude.  Hence  the  practical 
importance  of  the  distinction  has  reference  entirely  to 
matters  of  procedure,  every  part  of  which  is  more  or  less 
affected  by  it.  A  felon  may  in  all  cases  be  arrested  without 
warrant,  and  is  in  no  case  absolutely  entitled  to  be  bailed, 
whereas  a  misdemeanant  cannot  be  arrested  without  warrant 
except  in  cases  specially  provided  for  by  statute,  and  is 
entitled  to  be  bailed  in  all  cases  in  which  special  statutory 
enactments  do  not  modify  his  right.  A  misdemeanant  has, 
and  a  felon  has  not,  a  right  to  a  copy  of  the  indictment.  In 
an  indictment  for  felony  one  offence  only  can  practically  be 
charged.  In  an  indictment  for  misdemeanour  any  number  of 
offences  may  be  charged  in  different  counts.  There  are, 
moreover,  many  distinctions  as  to  the  trial  of  felonies  and 
misdemeanours.  The  only  one  of  much  practical  importance 
is  that  a  person  accused  of  felony  has,  whereas  a  person 
accused  of  misdemeanour  has  not,  the  right  of  peremptory 
challenge. 

This  distinction  with  all  its  consequences  the  Commissioners 
proposed  to  abolish.  In  the  definition  of  each  particular 
offence  there  was  contained  a  special  provision  deciding 
whether  persons  accused  of  it  should  be  liable  or  not  to 
summary  arrest,  and  should  or  should  not  be  bailable  at 
discretion  only.  All  trials  were  to  be  conducted  in  the  same 
way;  all  provisions  as  to  indictments  were  to  apply  to  all 
offences  alike;  and  as  to  challenges  it  was  provided  that 
persons  indicted  for  treason  should  have  thirty-five  peremp- 
tory challenges ;  persons  indicted  for  offences  rendering  them 
liable  to  death  or  penal  servitude  for  life  twenty,  and  all 
other  persons  six.  The  right  to  challenge  is  hardly  ever 
made  use  of  in  the  present  day,  but  when  it  is  it  seems  hard 

1  S.  i31. 


DRAFT   CODE — AMENDMENTS   IN   PROCEDURE.  5^9 

that  a  man  indicted  for  theft  should  possess  it,  and  that  a    Ch.  XV-. 
man  indicted  for  perjury,  libel,  or  obtaining  goods  by  false 
pretences  should  not. 

The  existing  law  as  to  the  local  jurisdiction  of  the  courts 
■was  considerably  altered  by  the  Draft  Code.  The  whole  law  of 
venue  was  swept  away  by  s.  504,  which  gave  every  criminal 
court  jurisdiction  to  try  every  offence  over  which  it  had  juris- 
diction, wherever  it  might  be  committed,  subject  only  to  the 
rule  that  English  offences  must  be  tried  in  England,  and  Irish 
offences  in  Ireland.  In  the  same  spirit  the  system  of  backing 
warrants  was  abolished,  and  a  justice's  warrant  was  made  to 
run  over  the  whole  of  England,  or  the  whole  of  Ireland,  an 
adaptation  to  England  of  the  Irish  practice. 

With  respect  to  proceedings  to  compel  the  appearance  of 
suspected  persons  the  Draft  Code  proposed  a  few  alterations  in 
the  existing  law. 

By  s.  437  power  was  given  to  justices  to  inquire  into  any 
suspected  offence,  although  no  person  might  be  charged,  by 
calling  before  them  witnesses  able  to  give  material  evidence 
and  examining  them  upon  oath.  This  power  was  originally 
given  to  justices  in  Ireland  by  the  Peace  Preservation  Act  of 
1870  (33  Vic.  c.  9,  s.  13).  A  similar  section  is  contained  in 
the  Prevention  of  Crime  Act,  1882  (45  &  46  Vic.  c.  25,  s.  16). 
It  is  a  power  which  obviously  ought  to  exist  in  all  cases,  as 
it  can  inflict  no  hardship  on  any  innocent  person,  and  may 
frequently  lead  to  the  discovery  of  criminals.  When  a  crime 
has  been  committed,  and  before  any  person  has  been  arrested 
for  it,  many  matters  are  noticed  and  remembered  which  are 
soon  forgotten,  but  which  may  be  found  afterwards  to  be 
of  great  importance.  Such  inquiries  can  now  be  made  only 
by  policemen,  who  have  no  power  to  require  any  one  to  give 
the  information,  and  no  authority  to  put  people  upon  their 
oaths.  The  power  of  holding  such  an  inquiry  ought  to  be 
palt  of  the  regular  apparatus  for  the  detection  of  crime. 
After  all,  it  is  only  a  speedier  and  less  cumbrous  form  of 
doing  what  is  done  by  coroners'  inquests  in  cases  of  homi*- 
cide.  An  attempt  to  introduce  such  a  system  was  made  by 
30  &  31  Vice.  35,  s.  6,  but  was  defeated  by  amendments 
introduced  in  the  passage  of  that  measure  through  parliament. 


5IO  EXTENSION   OF   MALICIOUS   INDICTMENTS   ACT. 

Ch.  XV.        No    alteration    of    any  great   importance   was    proposed 
to  be  made  in  the  proceedings  before  magistrates,  but  an 
alteration   of   great  importance   was  proposed   as   to   their 
position  in  the  general  system.     As  the  law   stands,   as  I 
have  already  explained  at  length,  it  is  not  necessary  for  a 
person  wishing  to  accuse  another  of  a  crime  to  go  before  a 
magistrate  at  all,  except  in  a  few  cases  excepted  (in  1859)  from 
the  general  law  by  the  Malicious  Indictments  Act  (22  &  23 
Vic.  c.  17).     It  is  thus  legally  possible  that  a  man  might  be 
put  upon  his  trial  by  an  indictment  found  behind  his  back 
upon  the  evidence  of  witnesses  whose  names  he  would  have 
no   means   of  knowing  before    his   trial.     The   Draft   Code 
proposed    to    remedy   this    by  extending   the   principle    of 
the    Malicious    Indictments    Act    to    all    offences  whatever, 
and  by   providing  further    that  the  verdict   of    a  coroner's 
jury   should  no   longer  have  the   effect    of    an   indictment, 
but   should    operate  to   bring   the    case   before    committing 
magistrates.     The  effect  of  this  would  have  been  that  on  the 
one  hand  every  one  brought  to  trial  before  a  criminal  court 
would  know  what  was  the  evidence  against  him,  and  that  on 
the  other  the  mere  fact  that  a  magistrate,  after  hearing  the 
evidence  produced  by  the  prosecutor,  discharged  the  accused, 
would  not  put  a  stop  to  the  proceedings,  as  the  prosecutor 
woiild  have  a  right  to  call  upon  the  magistrate  to  bind  him 
over  to  prosecute.     He  would  then  be  entitled  to  send  up 
an  indictment  on  his  own  responsibility  as  he  is  at  present. 
The  power  of  the  law  officers  to  indict  without  going  before 
a  magistrate  was  reserved,  and  it  was   also   provided  that 
leave  to  do  so  might  be  given  by  the  court  or  a  judge. 
The  grand  jury  would  thus  have  ceased  to  be  a  body  which 
designing    persons    could    convert    into    an    instrument   of 
oppression,    whilst    it   would    have    continued   to    afford   a 
protection  to  the  innocent   (in  my  opinion,  far  from  being 
superfluous)  against  the  disgrace  of  being  publicly  accused 
and  put  upon  their  trial  for  offences  which  they  have  not 
committed.     They  would  also  continue  to  discharge,  as  they 
do  at  present,  the   function   of  preventing  premature   and 
abortive  trials.     It  is  by  no  means  uncommon  for  offenders 
to  be  committed  in  cases  in  which  the  judge  sees,  though  the 


ALTERATIONS   PROPOSED   IN   INDICTMENTS.  5  ^  ^ 

committing  magistrate  did  not,  that  a  link  in  the  evidence  is  Ch^V. 
wanting,  or  that  the  evidence  itself  is  of  such  a  nature  that 
the  petty  jury  would  be  sure  to  acqait.  In  such  cases  it 
is  usual  to  advise  the  grand  jury  to  throw  out  the  bill,  and  in 
this  way  open  failures  of  justice  are  often  prevented.  This 
is  specially  common  in  the  case  of  crimes  of  a  disgusting 
nature  imperfectly  proved,  the  open  trial  of  which  is  in  itself 
an  evil,  and  by  no  means  a  small  one. 

The  Draft  Code  proposed  to  sweep  away  completely  all 
the  technicalities  as  to  indictments,  which  have  been  half 
effaced  already.  This  was  effected  by  a  series  of  sections, 
which  stated  shortly,  but  in  positive  terms,  what  the  re- 
quisites of  an  indictment  were  to  be,  and  then  declared 
negatively  that  no  one  of  the  old  objections  should  be 
made  to  them.  The  following  sections  speak  for  themselves,  ' 
and  contain  the  gist  of  the  proposed  alterations : — 

"  Section  482. — Form  and  Contents  of  Counts.— Every 
"  count  of  an  indictment  shall  contain  and  shall  be  sufficient 
"  if  it  contains  in  svibstance  a  statement  that  the  accused  has 
"  committed  some  offence  therein  specified.  Such  statement 
"  may  be  made  in  popular  language  without  any  technical 
"  averments  or  any  allegations  of  matter  not  essential  to 
"  be  proved,  and  may  be  in  the  form  I  (2)  in  the  first  schedule 
"  hereto  or  to  the  like  effect. 

'■  Such  statement  may  be  in  the  words  of  the  enactment 
"  describing  the  offence  or  declaring  the  matter  charged 
"  to  be  an  indictable  offence,  or  in  any  words  sufficient 
""  to  give  the  accused  notice  of  the  offence  with  which  he 
"  is  charged. 

"  Every  count  shall  contain  so  much  detail  of  the  circum- 
"  stances  of  the  alleged  offence  as  is  sufficient  to  give  the 
"  accused  reasonable  information  as  to  the  act  or  omission  to 
"  be  proved  against  bim,  and  to  identify  the  transaction 
"  referred  to :  Provided  that  the  absence  or  insufficiency 
"  of  such  details  shall  not  vitiate  the  count,  but  the  Court 
"  may  order  an  amendment  or  further  particulars,  as  herein- 
"  after  mentioned. 

"A  count  may  refer  to  any  section  or  sub-section  of 
"  any  statute   creating  the  offence    charged  therein,  and   in 


5  I  2  ALTERATIONS   PROPOSED   IN    INDICTMENTS. 

Ch.  XV.  "  estimating  the  sufficiency  of  such  count  the  Court  may 
"  have  regard  to  such  reference. 

"  Every  count  shall  in  general  apply  only  to  a  single 
"  transaction. 

"  Section  483. — Offences  mat  be  Charged  in  the 
"  Alternative. — A  count  shall  not  be  deemed  objectionable 
"  on  the  ground  that  it  charges  in  the  alternative  several 
"  different  matters  acts  or  omissions  which  are  stated  in  the 
"  alternative  in  the  enactment  describing  any  offence  or 
"  declaring  the  matters  acts  or  omissions  charged  to  be  an 
"  indictable  offence,  or  on  the  ground  that  it  is  double  or 
"  multifarious :  Provided  that  the  accused  may  at  any  stage 
"  of  the  trial  apply  to  the  Court  to  amend  or  divide  any  such 
"  count  on  the  ground  that  it  is  so  framed  as  to  embarrass 
"  him  in  his  defence. 

"  The  Court,  if  satisfied  that  the  ends  of  justice  require  it, 
"  may  order  any  count  to  be  amended  or  divided  into  two  or 
"  more  counts,  and  on  such  order  being  made,  such  count 
"  shall  be  so  divided  or  amended,  and  thereupon  a  formal 
"  commencement  may  be  inserted  before  each  of  the  counts 
"  into  which  it  is  divided." 

Illustrations  were  given  in  the  schedule  of  forms  of  the 
kind  of  indictments  which  would  have  been  drawn  under  this 
system.     They  were  as  follows  : — 

I  (1)  Heading. 

"  In  the  (name  of  the  Court  in  which  the  indictment  is 
"  found). 

"  The  jurors  for  Our  Lady  the  Queen  present  that 

"  [  JVhere  there  are  more  counts  than  one  add  at  the  leginning 
"  of  each  county  : 

" '  The  said  jurors  further  present  that ' 

I  (2)  Charge. 
Sosamples  of  the  manner  of  stating  Offences. 
"  (a)  A.  murdered  B.  at  on 

"  (&)  A.  stole  a  sack  of  flour  from  a  ship  called  the 
at  on 


ALTERATIONS  PROPOSED   IN  INDICTMENTS.  5  13 

"  (c)  A.  obtained  by  false  pretences  from  £.  a  horse  a  cart    Ch.  XV. 
"  and  the  harness  of  a  horse  at  on  . 

"  (d)  A.  committed  perjury  with  intent  to  procure  the 
"  conviction  of  B.  for  an  offence  punishable  with  penal  ser-  " 
"  vitude,  namely  robbery,  by  swearing  on  the  trial  of  JB.  for 
"  the  robbery  of  C.  at  the  Court  of  Quarter  Sessions  for  the 
"  "West  Riding  of  the  county  of  York,  held  at  Leeds  on  the 
day  of  1879 ;  first,  that  he  A.  saw 

"  R  at  Leeds  on  the  day  of  ;  secondly, 

"  that  £.  asked  A.  to  lend  B.  money  on  a  watch  belonging  to 
"  G. ;  thirdly,  &c. 

or 

"  (e)  The  said  A.  committed  perjury  on  the  trial  of  B.  at  a 
"  Colirt  of  Quarter  Sessions  held  at  Kilkenny  on 
"  for  an  assault  alleged  to  have  been  committed  by  the  said 
"  B.  on  G.  at  Kilkenny  on  the  day  of  ,  by 

"  swearing  to  the  effect  that  the  said  B.  could  not  have  been 
"  at  Kilkenny  at  the  time  of  the  alleged  assault,  inasmuch 
"  as  the  said  A.  had  seen  him  at  that  time  in  Waterford. 

"  (/)  A.,  with  intent  to  maim  disfigure  disable  or  do 
"  grievous  bodily  harm  to  B.,  or  with  intent  to  resist  the  law- 
"  ful  apprehension  or  detainer  of  A.  [or  C],  did  actual  bodily 
"  harm  to  B.  [or  Z>.]. 

"  {g)  A.,  with  intent  to  injure  or  endanger  the  safety  of 
"  persons  on  the  North-Westem  Railway  did  an  act  calculated 
"  to  interfere  with -an  engine  a  tender  and  certain  carriages  on 
"  the  said  railway  on  at  by  [describe 

"  with  so  much  detail  as  is  sufficient  to  give  the  accused  reason- 
"  able  information  as  to  the  acts  or  omissions  relied  on  against 
"  him,  and  to  identify  the  transaction.] 

"^{g)  A.  published  a  defamatory  libel  on  B.  in  a  certain 
"  newspaper,  called  the  on  the  day  of 

"  A.D.  ,  which  libel  was  contained 

"  in  an  article  headed  or  commencing  [describe  with  so  much 
"  detail  as  is  sufficient  to  give  the  accused  reasonable  information 
"  as  to  the  part  of  the  publication  to  be  relied  on  against  him], 
"  and  which  libel  was  written  in  the  sense  of  imputing  that 
"  the  said  B.  was  [as  the  case  may  be]. 

1  (g)  ill  the  original.     The  IcllBring  is  ^^TOI)g. 
VOL.    I.  L    L 


5l4  ALTERATIONS  PROPOSED  IN  INDICTMENTS. 

Ch.  XV.  {h)  "  That  J.  without  leave  of  Her  Majesty  did  at  [Birhen- 
"  headl  equip,  furnish,  fit  out,  or  arm,  or  attempt,  or  endeavour 
"  to  equip,  furnish,  fit  out,  or  arm  \tMs  is  rendered  sufficient 
"  ly  Section  483  of  the  Code  ;  Section  71  renders  it  unnecessary 
"  to  proceed  to  state  that  they  '  procured,  aided,  or  assisted '  in  the 
"  equipmenti  a  ship  called  the  '  Alexandra,'  in  order  that  it 
"  might  be  employed  in  the  service  of  a  certain  foreign 
"  power  called  the  Confederate  States  [see  Section  484  of  the 
"  Code]  against  a  foreign  power  called  the  United  States, 
"  with  which  Her  Majesty  was  not  then  at  war. 

If  these  forms  are  compared  with  those  to  which  I  have 
referred  in  Chapter  IX.,  the  extent  to  which  they  would 
simplify  the  law  will  at  once  become  apparent.  The  illustra- 
tion marked  (Ji)  is  the  equivalent  of  the  information  in  ^'R.  v. 
SUlem,  which  contained  ninety-five  counts,  charging  separately 
all  the  combinations  of  the  different  operative  words  of  the 
statute. 

In  order  to  prevent  the  prisoner  from  being  embarrassed  by 
the  generality  of  indictments  so  drawn,  the  Code  provided 
that  he  should  be  entitled  to  particulars  of  any  statement 
which  the  court,  after  having  regard  to  the  indictment  and 
to  the  depositions,  believed  to  be  really  embarrassing. 
^  Counts  for  different  offences  were  allowed  to  be  joined  in  all 
cases  whatever,  according  to  the  present  practice  as  to  misde- 
meanours. An  exception  was  made  in  regard  to  charges  of 
murder,  which,  it  was  provided,  were  to  be  joined  only  with 
counts  charging  murder,  so  that  if,  as  sometimes  happens,  a 
man  set  fire  to  a  house,  stole  part  of  the  property  contained 
in  it,  and  burned  several  persons  to  death,  he  might  be 
charged  in  one  indictment  for  the  murder  of  all  the  persons 
burnt,  the  murder  of  each  being  charged  in  a  separate  count. 
He  might  also  be  charged  in  another  indictment  for  arson 
and  theft,  the  arson  being  charged  in  one  count  and  the  theft 
in  another.  This  limitation  upon  the  general  rule  was  made 
because  it  was  considered  that  on  a  trial  for  a  capital  crime 
the  attention  of  the  jury  ought  not  to  be  diverted  by  any 
other  inquiry,  especially  as  the  introduction  of  other  charges 
might,  under  circumstances,  invite  a  compromise.  ^The 
1  2  Hurl,  and  Colt.  p.  4S1.  =  g,  493,  s  g.  507. 


ALTERATIONS  AS  TO   VENUE,   OUTLAWRY,   AND   TRIAL.  5^5 

prisoner  was  in  all  cases  to  be  entitled  to  a  copy  of  the    Ch.  XV. 
indictment. 

With  regard  to  the  place  and  mode  of  trial,  the  substance 
of  the  Draft  Code  was  that  accused  persons  should  be  brought 
before  a  justice  having  jurisdiction  over  the  place  where  the 
offence  was  committed,  and  by  him  committed  for  trial  to 
the  court  having  jurisdiction  over  that  place,  but  that  this 
should  be  subject  to  a  power  in  the  Queen's  Bench  Division 
to  direct  a  trial  in  any  competent  court.  The  court  was  also 
to  have  a  right  in  every  case  to  order  a  trial  by  a  special  jury. 

The  present  law  as  to  process  to  compel  appearance  on  an 
indictment  foi\nd  was  re-enacted  in  substance  subject  to  only 
one  alteration. — ^  outlawry  was  abolished.  In  the  Draft  Code 
of  1878  I  proposed  that  for  outlawry  should  be  substituted  a 
power  to  make  a  fugitive  from  justice  a  bankrupt,  which  would 
have  involved  the  forfeiture  of  his  property.  The  Commis- 
sion of  1879  did  not  consider  this  necessary,  but  I  doubt 
whether  the  omission  was  wise.  It  is  true  that  under  the 
provisions  of  extradition  treaties  offenders  may  in  many 
cases  be  arrested  abroad  and  brought  back  to  England,  but 
I  do  not  see  why,  if  a  wealthy  man  committed  treason  or 
treasonable  felony,  he  should  be  able  to  live  in  France  with 
no  other  iuconvenience  than  that  of  being  unable  to  return 
to  England.  If  a  man  will  not  answer  to  the  laws  of  his 
country,  I  think  he  ought  to  forfeit  the  property  which  he 
holds  under  their  protection.  Forfeiture  was  expressly  main- 
tained in  cases  of  outlawry  by  33  &  34  Vic.  c.  23,  s.  1.  The 
process  of  outlawry  is  practically  obsolete,  but  bankruptcy  is 
well  understood ;  and  if  flying  from  justice  were  made  an  act 
of  bankruptcy,  it  would  operate  as  a  severe  check  upon 
wealthy  persons  disposed  to  avoid  justice. 

Few  alterations  were/  suggested  in  the  law  relating  to  the 
actual  trial,  and  those  which  were  suggested  were  aU  in  the 
direction  of  removing  the  few  technical  rules  which  still 
hamper  the  administration  of  justice. 

The  alterations  proposed  were  as  follows  : — 

First,  with  a  view  to  the  simplification  of  the  process  of 
appeal,  it  was  proposed  to  abolish  the  present  record,  which  is 

'  a.  501. 

L   L   2 


5l6  APPEAL — EXAMINATION   OF  PRISONERS. 

Ch.  XV.  a  document  cumbrous  and  teclmical  in  tlie  highest  degree. 
For  it  was  to  be  substituted  a  minute,  to  be  made  in  a  book 
to  be  called  the  Crown  Book,  kept  for  that  purpose  by  the 
officer  of  the  court,  which  would  in  every  case  record  in  a  pre-- 
scribed  form  aU  the  essential  parts  of  the  proceedings,  for  the 
information  of  the  Court  of  Appeal,  if  any  appeal  should  take 
place.  ^  The  court  was  empowered  to  discharge  the  jury  and 
adjourn  the  trial  for  the  production  of  witnesses,  but  only  in 
cases  in  which  it  appeared  that  the  accused  had  been  taken 
by  surprise  by  the  production  of  unexpected  witnesses  or  that 
the  prosecution  had  omitted  to  call  witnesses  whom  they 
ought  to  have  called.  The  jury  of  matrons  in  cases  of  preg- 
nancy was  abolished,  and  ah  examination  by  medical  men 
substituted  for  it,  and  some  minor  matters  which  it  is 
unnecessary  to  notice  in  detail,  tvere  provided  for. 

Of  the  proposal  made  for  the  examination  of  the  prisoner 
I  have  already  spoken,  and  I  have  also  given  an  account  of 
the  alterations  proposed  as  to  appeals  in  criminal  cases,  as  I 
thought  that  those  proposals  would  be  most  naturally  and 
easily  considered  in  connection  with  a  statement  of  the  exist- 
ing law  and  its  history.     One  small  alteration  was  not  made 
which  I  think  might  be  made  with  advantage.     I  think  the 
judge  ought  to  have  a  discretion  to  clear  the  court  at  the  trial 
of  indecent  cases.     At  present  it  is  usual  to  order  boys  and 
women  to  withdraw,  but  this  is  not  in  my  judgment  enough. 
The  eagerness  with  which  large  numbers  of  men  of  all  ages, 
especially  young  men  and  old  men,  press  to  hear  cases  which 
would  make  any  decent  person  sick  is  revolting,  is  an  insult  to 
all  good  morals,  and  I  am  convinced  does  infinite  mischief. 
AU  necessary  publicity  might  be  secured,  and  all  possibility 
of  perversions  of  justice  by  reason  of  the  exclusion  of  public 
opinion  might  be  avoided,  by  providing  that  persons  having 
business  in  the  court,  and  particularly  reporters  for  newspapers, 
should  not  be  excluded.    The  wholesome  influences  of  public 
opinion  would  thus  be  retained,  whilst  the  wretched  creatures 
who  gloat  over  the  very  worst  forms  of  crime  and  vice  would 
.  be  prevented  from  turning  what  ought  to  be  a  school  of  virtue 
into  a  scene  for  the  gratification  of  the  lowest  forms  of  vice. 

'■  S.  525. 


CODE  d'insteuction  ckiminelle.  517 

If  these  proposals  had  been,  or  if  hereafter  they  should  be,  Ch.  XV. 
adopted,  I  think  our  system  of  criminal  procedure  would  form 
a  whole  as  complete,  compact,  and  systematic  as  if  it  had 
been  the  work  of  a  single  mind.  It  would  also  have  had  the 
advantage  of  being  passed,  put  together,  and  tested  in  every 
one  of  its  constituent  parts,  by  a  succession  of  judges  and 
legislators  reaching  back  uninterruptedly  to  remote  antiquity ; 
and  it  would  thus  represent  the  experience  of  many  centuries 
slowly  accumulated  and  at  last  reduced  to  a  definite,  explicit 
system  by  a  single  statute. 

No  mere  statement  of  such  a  systepi  can  give  a  full 
impression  of  its  general  character.  In  order  to  do  this  in  a 
satisfactory  manner  it  will  be  well  to.  contrast  it  with  what 
may  be  described  as  the  great  rival  system  of  criminal  pror 
cedure.  The  English  system  has  extended  itself  not  only 
over  England  and  Ireland,  but  with  variations  over  the  whole 
of  the  North  American  continent;  over  all  the  English 
colonies,  and  in  particular  over  Australia,  the  Cape  of  Good 
Hope,  and  New  Zealand ;  and  has  formed  the  foundation  of  a 
system  established  throughout  the  Indian  Empire,  of  which 
I  shall  give  a  full  account  in  another  part  of  this  work. 

The  French  Code  d' Instruction  Criminelle  has  served  as  a 
model  for  the  legislation  of  a  large  part  of  continental  Europe. 
It  was  the  result  of  a  different  order  of  ideas  from  our  owa. 
It  is  enforced  by  a  system  of  institutions  widely  different  from 
ours ;  and  though  to  a  certain  extent  it  has  adopted  our  leadr 
ing  institution,  trial  by  jury,  a  French  jury  occupies  a  position 
differing  in  many  particulars  from  that  of  an  English  jury. 
In  order  to  complete  this  chapter  I  will  now  proceed  to  give 
some  account  of  French  criminal  procedure,  comparing  or 
contrasting  it  with  our  own. 

The  following  is  the  organisation  of  the  French  criminal 

courts  of  justice.     There  are  in  France  ^  twenty-six  Courts  of 

1  Agen  :  2.  Aix  ;  3.  Aiaccio;  i.  Amiens  ;  5.  Angers  ;  6.  BesanQon ;  7.  Bor- 
deaux; 8.  BouTges  ;  9.  Caen ;  10.  Dijon  ;  11.  Do"fi  ;  12.  Grenoble  ;  13. 
Limoges  ;  U.  Lyons  ;  15.  Montpellier  ;  ]6.  Nancy  ;  17^Nimes  ;  18.  Orleans  ; 
19.  Paris;  20.  Pan;  21.  Poitiers;  22.  Eennes ;  23.  Riom ;  24.  Epuen ;  25 
Toulouse  •  26.  Chambfery.  Brussels  and  Lifege  were  also  the  seats  ot  Courts  ot 
Appeal,  when  they  were  established  by  the  law  of  27  Ventose  An.  VIII  ,  and  so 
wfere  Colmar  and  Metz.  These  have  ceased  to  he  parts  of  France.  Chambfery 
was  added  on  the  annexation  of  Nice  in  1860  (Cours  d'Appel,  iots  Ust^lles, 
p    457)      These  courts  have  also  been  called  Cours  Impenales  and  Cours 


5l8  FRENCH  CRIMINAL   COURTS. 

Ch.  XV.    Appeal.     ^  There  are  an  indeterminate  number  of  Courts  of 

'      '       First  Instance.    ^  There  is  in  every  commune  one  Juge  de  paix 

at  least.     Others  are  divided  between  two  or  more.     These 

are  the  French  courts,  from  which  are  taken  the   Criminal 

Courts  as  follows  : — 

*  The  Gour  d' Assises  is  taken  from  each  Gour  d'Appel.  It 
consists  of  three  judges,  one  of  whom  is  president.  In  the 
departments  where  the  Gours  d'Appel  sit,  all  the  judges  are 
members  of  the  Gour  d'Appel.  In  the  other  departments  the 
president  must  be  a  member  of  the  Gour  d'Appel.  The  other 
two  members  may  either  be  members  of  the  Gowr  d'Appel 
or  presidents  or  judges  of  the  Tribunal  of  First  Instance  for 
the  place  in  which  the  Gour  d' Assises  sits. 

The  Gour  d' Assises  sits  in  and  for  every  department  every 
three  months,  but  if  need  be  they  may  sit  more  often.  The 
Gours  d' Assises  try  by  a  jury  and  *the  proper  subject  of  their 
jurisdiction  are  crimes  as  distinguished  from  ddlits ;  but  they ' 
have  also  a  special  jurisdiction  in  some  particular  cases,  and 
if  a  case  tried  before  them  turns  out  to  be  a  d6lit,  or  even  a 
police  offence,  they  may  deal  with  it. 

*  The  Tribunal  Gorrectionnel  is  the  Tribunal  of  First  In- 
stance sitting  as  a  criminal  court.  It  consists  of  three  judges 
taken  from  the  Court  of  First  Instance.  They  try  without  a 
jury,  and  have  jurisdiction  over  dilits,  that  is  to  say,  over 
offences  which  can  be  punished  with  more  than  five  days' 
imprisonment  and  more  than  15  francs  fine,  but  not  with 
death,  travaux  forces,  or  reclusion.  The  highest  punishment 
which  they  can  inflict  is  five  years'  imprisonment,  or,  in  cases 
of  a  second  conviction,  teu  years'.  They  may  also  in  many 
cases  try  persons  under  sixteen  for  crimes  punishable  with 
travaux  forces  for  not  exceeding  twenty  years  or  reclusion. 

Lastly,  the  Juges  de  paix  are  judges  in  regard  to  police 

BoyaUs.     Most  of  tliem  have  three  departments  under  their  jurisdiction ;  six, 
namely  Montpellier,  Nancy,  Mmes,  Poitiers,  Riom,  and  Toulouse,  have  four 
each  ;  one,  Rennes,  has  five ;  and  Paris  has  seven. 
1  Law  of  April  20,  1810,  ch.  5. 
^2  Code  d' Instruction  Griminelle,   pp.    141-142.     I  refer  to  the  Code    as 

3  See  0.  I.  0.  pp.  251-265. 

■*  O,  I.  C.  p.  133  ;  and  see  Hflie,  Prat.  Orim.  i.  pp.  434,  824, 

'  C.  I.  0.  pp.  179-181 !  and  see  H^lie,  Prat.  Orim.  ii.  pp.  187188. 


COURS  d' ASSISES.  519 

offences  punishable  with  a  fine  not  exceeding  15  francs,  or    Ch.  xv. 
imprisonment  not  exceeding  five  days. 

^  If  the  juge  de  paix  sentences  any  one  to  imprisonment 
or  to  a  fine  of  more  than  5  francs,  an  appeal  lies  to  the 
Tribunal  of  Correctional  Police ;  but  it  is  not  expressly  stated 
in  the  Code  whether  the  defendant  only  or  the  prosecutor  also 
may  appeal.  The  appeal  suspends  the  execution  of  the  sen- 
tence, and  may,  if  either  of  the  parties  or  the  Procureur 
de  la  Bdpublique  requires  it,  be  by  way  of  rehearing. 

^  An  appeal  lies  from  the  Correctional  Court  to  the  Court 
of  Appeal  in  the  case  of  all  final  judgments,  and  of  such  inter- 
locutory judgments  as  have  a  direct  bearing  upon  the  final 
judgment.  ^Either  the  defendant,  the  partie  civile,  the  Pro- 
etoreur  de  la  Bipublique,  or  the  Procureur-Giniral  may  appeal. 
*  The  appeal  is  heard  as  if  it  were  a  case  brought  before  the 
court  in  its  original  jurisdiction.  ^  The  court  may  dismiss  the 
defendant  if  it  thinks  that  the  facts  proved  constitute  neither 
a  contravention  nor  a  ddit  nor  a  crime.  ®  If  they  think  that 
the  offence  was  not  a  dilit,  but  was  a  contravention,  they  may 
inflict  the  proper  punishment.  '  If  they  think  the  facts 
amount  to  a  crime  they  may  take  steps  for  the  trial  of  the 
case  before  the  Cour  d' Assises.  ^  If  they  set  aside  the  judg- 
ment on  account  of  the  violation  or  omission  of  forms  pre- 
scribed by  law  under  penalty  of  nullity,  they  may  decide 
upon  the  merits. 

There  is  no  appeal,  properly  so  called,  from  the  decisions 
of  a  Gour  d' Assises. 

All  the  courts,  the  Cours  d' Assises  as  well  as  the  rest,  are 
subject  to  an  appeal,  as  we  should  say,  on  matter  of  law  only, 
to  the  Court  of  Cassation.  ®  This  court  sits  at  Paris,  and  is 
composed  of  ^*  three  chambers,  in  each  of  which  there  are 
sixteen  judges.  The  leading  principle  as  to  its  duties  is 
thus  stated  by  "  M.  Hdlie.     "  II  est  de  principe  que  la  Cour 

1  0. 1.  G.  172-178. 

2  C.  I.  0.  199,  sea.  ;  Helie,  Prat.  Grim.  i.  j.  248,  seq. 

^  G  I  G  202.  *  G.  I.  0.  210,  190.  "  G.  1.  G.  212. 

6  G.  I.  G.  213.  '  G.  I.  G.  214.  ^  c.  I.  G.  216. 

"  Eoger  et  Sorel,  Lois  Usuelles,  p.  414  ;  Law  27  VentSse,  An.  VIII. 

10  "  La  ohambre  des  requetes,  la  oliambre  civile,  et  la  chambre  criminelle." 
—Eoger  et  Sorel,  p.  417  ;  Law  15  Jan.  1826,  art.  i. 

11  Prat.  Grim.  i.  p.  651. 


520  FEEKCH   COURTS. 

Ch.  XV.  "  de  Cassation  ne  peut,  en  aueun  cas  et  sous  aucun  pretexte, 
"  connaltre  du  fond  des  affaires,  et  que,  lorsqu'elle  casse  -les 
"  procedures  et  les  jugements,  elle  doit  renvoyer  le  fond  aux 
"  tribunaux  qui  doivent  en  connaltre.  De  \h  il  suit  que  les 
"  arrets  portant  cassation  apres  avoir  sp^cifi^  les  limites  de 
"  I'annulation,  doivent  ordonner  le  renvoi  du  proems  aux  juges 
"  qu'ils  designent."  To  use  the  language  of  English  law, 
the  Court  of  Cassation  must  either  confirm  the  judgment 
appealed  against  or  order  a  new  trial. 

Such  are  the  French  courts.  The  general  scheme  of  their 
jurisdiction,  and  their  relation  to  each  other,  has  some  points 
of  marked  resemblance  to  our  own.  The  Juge  de  paix  may 
be  compared  to  a  police  magistrate,  the  Correctional  Tribunal 
to  a  court  of  quarter  sessions,  the  Gours  d' Assises  to  our  Assize 
Courts,  and  the  criminal  chamber  of  the  Court  of  Cassation 
to  our  Court  for  Crown  Cases  Reserved,  but  this  general 
resemblance  goes  but  a  little  way.  Each  of  the  courts  in 
question  might  be  made  the  subject  of  a  contrast  to  the 
corresponding  court  in  England  much  more  striking  than  any 
comparison  between  them  could  be.  In  the  first  place,  the 
whole  system  is  far  more  systematic  than  our  own,  and  bears 
in  every  part  of  it  the  trace  of  having  been  formed  upon  one 
general  design.  There  is  a  neatness  in  the  way  in  which  the 
tribunals  of  first  instance  and  the  courts  of  appeal  are  related 
to  each  other,  to  the  criminal  courts  derived  out  of  them,  and 
to  the  Court  of  Cassation,  which  does  not  exist  in  our 
institutions ;  but  I  am  not  sure  that  there  is  any  special 
advantage  in  this.  If  the  English  courts  were  described  in 
terms  (so  to  speak)  of  the  French  courts,  we  should  have  to 
say  that  there  is  one  Court  of  Appeal  in  England,  namely,  the 
High  Court  of  Justice,  that  in  each  county  and  in  every 
borough  having  a  separate  court  of  quarter  sessions  there  is  a 
correctional  tribunal  called  the  Court  of  Quarter  Sessions, 
and  that  there  are  also  juges  de  paix,  or  justices  of  the  peace, 
in  and  for  each  county  and  borough — some  paid,  but  mostly 
unpaid ;  that  the  correctional  tribunal  is  composed  of  all  the 
juges  de  paix  in  the  county  or  borough  who  choose  to  attend  at 
the  quarter  sessions,  and  that  each  juge  de  paix,  by  himself  or 
in  company  with  another,  has  jurisdiction  to  try  all  police  cases. 


NUMBER   OP    FRENCH   JUDGES.  5^1 

Many  observations  might  be  made  on  the  difference  of  the    Ch.  XV. 
position  of  judges  in  France  and  England.    One  is  specially 
characteristic    and    important — their    comparative  number. 
The  English  Supreme  Court  of  Judicature  consists  of  the 
Court  of  Appeal,  in  which  there  are   five  ordinary  judges, 
and  four  ex  officio  members — the  Lord  Chancellor,  the  Lord 
Chief  Justice  of  England,  the  Master  of  the  Rolls,  and  the 
President  of  the   Probate  Division   (none  of  these,  except 
the  Master  of  the  Rolls,  usually  sits  in  the  Court  of  Appeal). 
The  High  Court  of  Justice  consists  of  three  divisions — the  Chan- 
cery Division,  with  five  judges ;  the  Queen's  Bench  Division, 
with  fifteen,  of  whom  the  Chief  Justice  of  England  is  one ; 
and  the  Probate,  Divorce,  and  Admiralty  Division,  with  two 
judges,  of  whom  the  President  of  the  Division  is  one.     The 
whole  number  of  judges  is  thus  twenty-nine,  of  whom  nine 
are  members  of  the  Court  of  Appeal.     To  these  may  be  added 
three  paid  judges  of  the  House  of  Lords  and  two  paid  judges 
of  the  Judicial  Committee  of' the  Privy  Council,  making  up 
the  whole  number  to  thirty-four — or  two  less  than  three- 
fourths  of  the  number  of  the  Court  of  Cassation.     Five  of  the 
English  judges  are  appellate  judges  only.     The  twenty-nine 
others   discharge  not   only  all   the  duties  of  the  Court  of 
Cassation,  but  most  of  the  duties  of  the  twenty-six  French 
courts  of  appeal,  and  in  particular  all  the  duties  of  all  the 
Cours  d' Assises  and  many  of  the  duties  of  the  Courts  of  First 
Instance.     ^By  the  law  of  April   20,  1810,  the  number  of 
judges  in  the  Cours  d'Appel  is  fixed  as  follows  : — Paris,  forty 
to  sixty,  other  courts  twenty  to  forty.     Taking  thirty  as  the 
average  number  of  judges  of  a  Court  of  Appeal,  this  would 
give   in   all   810  judges   for   duties  which  in  England  are 
performed  by  twenty-nine. 

A  2  law  of  July  21,  1875,  fixes  the  establishment  of  the 
Tribunal  of  First  Instance  for  the  Seine  as  follows  : — One  pre- 
sident, eleven  vice-presidents,  sixty-two  judges,  fifteen  supple- 
mentary judges — in  all,  eighty-seven  judges.  There  are  in  the 
Metropolitan  District  in  England  only  eleven  county  courts  in 
all  (counting  the  Lord  Mayor's  court  as  one),  with  a  single 
judge  for  each  court.  In  the  Tribunal  of  First  Instance  for  the 
1  Roger  et  Sorel,  Lois  Usuelles,  p.  469.  ^  11.  p.  493. 


522  FRENCH  AND  ENGLISH  COURTS  COMPARED. 

Ch.  XV.  Department  of  the  Seine  there  are  more  judges  than  there  are 
county  courts  in  all  England  and  Wales.  The  largeness  of 
the  number  of  the  French  judges  cannot  but  diminish  very 
greatly  their  individual  importance  in  comparison  with  that 
of  English  judges.  Indeed,  as  will  appear,  the  functions 
discharged  by  most  of  them  in  the  actual  management  of 
criminal  trials  are  of  little  importance.  Some  sort  of  analogy 
to  this  may  be  found  in  the  number  of  persons  included  in  our 
Commissions  of  Oyer  and  Terminer  and  Gaol  Delivery  almost 
entirely  by  way  of  compliment. 

Passing  from  the  constitution  of  the  courts  to  their  juris- 
diction, the  first  remark  which  occurs  is  that  our  courts  of 
summary  jurisdiction  have  a  much  more  extensive  power 
than  the  French  jioges  de  paix.  There  is  no_  definitely  fixed 
limit  to  the  authority  of  our  stipendiary  magistrates  and 
justices  in  petty  sessions.  Their  powers  depend  in  every 
case  on  the  statutes  which  create  offences  and  give  them 
jurisdiction  for  their  punishment.  There  are  many  instances 
in  which  they  may  sentence  offenders  to  six  months'  impri- 
sonment and  hard  labour,  some  in  which  they  may  go  as 
high  as  nine  months,  and  ^  a  few  in  which  they  may  go  as  far 
as  twelve  months.  They  may  also,  in  many  cases,  inflict 
heavy  fines  and  forfeitures  ;  as,  for  instance,  £100  and  £50 
for  offences  against  the  law  relating  to  explosive  substances, 
tower  to  fine  up  to  £10,  £20,  or  £30,  is  given  in  almost  in- 
numerable cases.  This  is  in  marked  contrast  to  the  French 
law,  which  limits  the  juge  de  paix  to  imprisonment  for  not 
exceedipg  five  days,  and  fine  not  exceeding  15  francs. 

It  may  be  observed  that  as  there  is  an  appeal  from  the 
juge  de  paix  to  the  Tribunal  of  First  Instance,  so  there  is  in 
many  cases  an  appeal  by  statute  from  a  conviction  by  a  Court 
of  Summary  Jurisdiction  to  the  Court  of  Quarter  Sessions. 

I  now  come  to  compare  the  Court  of  Quarter  Sessions  to 
the  Correctional  Tribunal.  As  far  as  regards  the  Constitu- 
tion of  the  Courts  the  resemblance  is  greatest  in  the  case  of 
the  Borough  Courts  of  Quarter  Sessions,  as  they,  like  the 
correctional  tribunals,  are   held  before  professional  judges, 

^  Kg.  in  the  case  of  certain  oiTences  by  convicts,  under  34  &  35  Vic.  c.  112, 
B.  7  (Prevention  of  Crimes  Act,  1871). 


FRENCH  AND  ENGLISH  COURTS  COMPARED.  523 

namely,  the  Eecorders  and  Deputy-Eecorders  of  boroughs.  Ch.  XV. 
In  the  English  courts,  however,  there  is  only  one  judge, 
whereas  in  the  French  courts  there  must  be  at  least  three. 
The  County  Quarter  Sessions,  with  their  volunteer  judges 
and  chairmen  are  altogether  unlike  any  French  tribunal.  In 
the  English  courts  there  is  a  jury.  In  the  French  courts 
there  is  none.  As  regards  the  extent  of  the  jurisdiction  of 
the  courts,  the  .English  Courts  of  Quarter  Sessions  may 
(subject  to  certain  specified  exceptions)  try  any  cases  which 
are  neither  capital  nor  punishable  on  a  first  conviction  with 
penal  servitude  for  life,  but  on  a  second  conviction  they  can 
(theoretically)  sentence  to  penal  servitude  for  life.  In  practice 
such  sentences  are  exceedingly  rare.  The  French  courts  are 
limited  to  ddlits,  and  can  pass  no  heavier  sentence  than  five 
years'  imprisonment  on  a  first  conviction,  or  ten  years  on  a 
seeond. 

The  French  correctional  courts  may  thus  be  regarded  as 
having  most  of  the  jurisdiction  of  our  Courts  of  Quarter 
Sessions,  and  much  of  the  jurisdiction  of  our  Courts  of  Sum- 
mary Jurisdiction.  The  right  of  appeal  from  a  French 
Correctional  Court  to  the  Gour  d'Appel  is  unlike  anything  in 
our  Courts  of  Quarter  Sessions.  No  appeal  lies  from  their 
decisions,  which,  no  doubt,  is  a  consequence  of  their  trying 
by  a  jury.  Trial  by  jury  is  inconsistent  with  an  appeal  by 
way  of  rehearing,  though  not  with  an  order  for  a  new  trial 
before  another  jury. 

The  Courts  of  Assize,  the  Central  Criminal  Court,  and  the 
Queen's  Bench  Division  in  its  original  jurisdiction,  have 
much  in  common,  as  far  as  jurisdiction  goes,  with  the  French 
Gouts  cC Assises.  They  differ,  however,  in  the  circumstance 
that  they  can,  and  not  unfrequently  do,  try  causes  of  small 
importance,  although  their  principal  function  is  to  try  cases 
of  the  more  serious  kind. 

I  now  pass  to  the  procedure  followed  in  these  various 
courts  in  order  to  bring  particular  offenders  to  justice.  The 
first  point  to  be  noticed  in  connection  with  this  subject  is 
the  existence  and  organisation  in  France  of  a  body  to  which 
nothing  at  all  analogous  exists  in  England.  I  have  already 
explained  at  length  and  in  detail  in  what  sense  it  is  true 


524  MINISTfeRE   PUBLIC. 

Ch.  XV.  that  the  administration  of  criminal  justice  in  England  is  in 
the  hands  of  private  individuals,  and  I  have  pointed  out  that 
though  a  standing  army  for  the  suppression  of  crime  has 
been  established  in  England  in  the  course  of  the  present 
century,  the  police  who  constitute  it  can  do  hardly  any  single 
act  for  the  suppression  of  crime  or  the  apprehension  and  dis- 
covery of  offenders  which  might  not  in  case  of  need  be  done, 
and  which  indeed  is  not  constantly  done,  in  fact,  by  private 
persons. 

This  is  diametrically  opposed  to  the  principles  and  practice 
of  the  French.  The  first  article  of  the  Code  d'Instruction 
Criminelle  is  in  these  words,  "  L' action  pour  I'application  des 
"  peines  n'appartient  qu'aux  fonctionnaires  auxquels  elle  est 
"  confiee  par  la  loi.  L' action  en  reparation  du  dommage 
"  cause  par  un  crime,  par  un  d61it,  ou  par  une  contravention 
"  pent  Stre  exerc^e  par  tous  ceux  qui  ont  souffert  de  ce  dom- 
"  mage."  The  detection  and  punishment  of  crime  is  thus 
theoretically  as  well  a.s  practically  regarded  by  the  French  as 
essentially  a  matter  of  public  concern  to  be  provided  for  by 
public  officials  appointed  for  that  purpose.  On  the  other 
hand,  in  every  French  criminal  proceeding,  from  the  most 
trifling  to  the  most  important,  any  person  injured  by  the 
offence  may  make  himself  partie  civile.  In  certain  cases 
he  may,  by  doing  so,  be  made  liable  in  damages  to  the 
accused.  A  French  criminal  trial  may  thus  be  also  a  civil 
proceeding  for  damages  by  the  party  injured  by  the  crime, 
and  at  the  same  time  an  action  by  the  accused  for  what  we 
should  call  a  malicious  prosecution. 

The  French  police  accordingly  is  organised  in  a  totally 
different  manner  from  our  own,  and  has  very  different 
duties.  Section  8  of  the  Code  d'Instruction  Criminelle  is 
as  follows :  "La  police  judiciaire  recherche  les  crimes, 
"  les  d^lits,  et  les  contraventions,  en  rassemble  les  preuves, 
"  et  en  livre  les  auteurs  aux  tribunaux  charges  de  les 
"  punir." 

A  complete  body  of  persons  is  organised  for  this  purpose. 
At  the  Coum  d'Appel  there  is  a  staff  of  officers  who  act 
as  public  prosecutors  and  are  described  collectively  as  the 
Ministdre  Public.    ^  The  Minist^re  Public  at  the  Cours  d' Assises  . 


JUDICIAL   POLICE.  5^5 

consists  of  the  Procureur  Giniral,  and  tlie  Avoeats  Gineraux,    tn.  XV. 

wlio  axe  Ms  substitutes.    By  Article  279  of  the  Code  d'Insfruc- 

tion  CrimineUe  it  is  enacted  that.  "  tous  les  officiers  de  police 

"judiciaire,  m^me  les  juges  d' instruction,  sont  soumis  h  la 

"  surveillance  du  Procureur  General.     Tous  ceux  qui  d'apr^s 

"  1*  article  9  du  present  code  sont  a  raison  des  fonctions  mSme 

"  administratives  appeles  par  la  loi  k  faire  quelques  actes  de 

"la  police  judiciaire,  sont,  sous  ce  rapport  seulement  soumis  a 

"  la  meme  surveillance." 

The  ofiScers  of  the  judicial  police  are  as  follows  : — 
^In  every  arrondissement  there  must  be  a  Juge  d' Instruction, 
who  is  appointed  to  that  office  for  three  years  by  the  Presi- 
dent of  the  Republic,  but  is  capable  of  being  reappointed. 
He  must  be  a  judge  or  supplementary  judge  of  the  civil 
tribunal  of  the  arrondissement,  and  more  than  one  may  be 
appointed  if  necessary.  At  Paris  there  are  six.  In  every 
tribunal  of  first  instance  there  is  a  Procureur  de  la  BdpuUique 
with  substitutes  who  form  the  Ministire  Public  for  that  court. 
In  the  court  of  the  Juge  de  paix  the  commissary  of  police  is 
the  Ministire  Public.  The  juges  de  paix,  the  maire  and  their 
adjoints,  the  commissaries  of  police,  the  gendarmerie,  the 
gardes  ehampitres,  and  the  gardes  forestiers  are  also  officers  of 
the  judicial  police. 

Their  functions  and  the  procedure  adopted  differ  according 
to  the  nature  of  the  offences  to  be  inquired  into. 

^  If  the  offence  is  a  contravention  of  poUce,  and  if  the 
offender  is  "  en  flagrant  d^lit,"  or  as  our  own  law  says,  "  found 
committing"  the  offence,  or  if  he  is  "d^nonc^  par  la  clamour 
publique,"  the  gardes  champStres  or  gardes  forestiers  may  at 
once  arrest  him  and  take  him  before  the  juge  de  paix  or  the 
maire  if  he  is  liable  to  imprisonment. 

*  In  other  cases  the  garde  champStre  or  forestier  draw;s  up  a 
proc&s-verbal  for  the  purpose  of  recording  the  circumstances, 
the  time  of  the  supposed  contravention  and  such  proofs 
or  evidence  of  it  as  they  can  find.  A  procds-verbal  is  a 
document  unlike  anything  which  we  make  use  of  in  English 
procedure. 

1  G  I  0-  252  '^  0.  I.  C.  55  ;  and  see  Helie,  p,  63. 

3  c.  i.  0.  16.  '  0.  I.  C.  16. 


526  PROgES-VERBAUX. 

Ch.  XV.        It  is  thus  defined  by  M.  H^lie  : — 

^ "  Les  procfes-verbaux  sont  les  actes  dans  lesquels  les 
"officiers  publics  constatent  les  faits  qualifies  par  la  loi 
"  crimes,  delits,  ou  contraventions,  leurs  circonstances,  les 
"traces  qu'ils  ont  laiss^es  et  tous  les  indices  propres  a  en 
"  signaler  les  auteurs."  ^  A  proch-verbal  must  be  made 
within  a  short  time,  not  precisely  fixed,  but  differing  in 
different  cases,  after  the  matters  it  records  are  observed. 
It  must  be  written,  signed  and  dated  by  the  person  who 
makes  it.  It  must  state  the  facts  constituting  any  dilit  or 
contravention  which  it  records,  and  the  name,  if  possible,  of 
the  offender,  and  it  ought  to  contain  a  list  or  description  of 
any  articles  seized.  In  some  cases  it  is,  and  in  others  it  is 
not  verified  upon  oath  before  a  juge  de  paix  or  a  maire.  ^  A 
prods-verhal  may  be  a  mere  renseignement,  it  may  be  primd 
facie  evidence  of  the  matters  stated,  and  this  is  the  case  with 
the  proc&s-^erbaux  of  maires,  commissaries-  of  police,  gen- 
darmes, gardes  champitres  and  forestiers,  and  many  others.  It 
may  be  evidence  "jusqu'a  I'inscription  de  faux,"  i.e.  till  legal 
means  are  taken  to  set  it  aside  as  being  false.  This  is  the 
case  with  the  prochs-verbaux  of  Custom  House  officers  in  some 
cases,  and  other  executive  officers  of  importance. 

*  When  the  'prochs-verhaux  have  been  made,  the  party  to 
whom  they  refer  is  either  cited  before  the  juge  de  paix  or 
informed  verbally,  or  indeed  in  any  way,  that  his  case  is 
to  be  heard.  If  there  is  a  citation  there  must  be  a  day's 
notice.  ^The  commissary  of  police  acts  as  public  prose- 
cutor, the  juge  de  paix.  as  judge.  *  The  hearing  must  be 
public  and  in  the  following  order:  The  proc&s-verlaux  are 
read  by  the  ''  greffier.  The  witnesses  summoned  by  the 
Minist&re  Public  or  the  partie  civile  are  heard  ;  the  partie  civile 
and  the  defendant  are  heard,  and  the  defendant  calls  his 
witnesses  ;  the  Ministtre  Public  sums  the  matter  up,  and  states  • 
its  conclusions,  after  which  the  defendant  "  pourra  proposer 
ses  observations,"  as  it  is  in  all  French  trials  a  rule  that  the 

'  Prat.  Grim.  i.  p.  146.  2  jj_  pp_  147.148. 

"  lb.  p.  151.  i  a.  I.  0.  21  and  137-154. 

5  0.  I.  C.  144.  8  0.  I.  0.  153. 

'  In  all  French  courts  there  is  a  greffier,  who  answers  to  our  clerk  of  assize, 
clerk  of  the  peace,  and  clerk  to  the  magistrate. 


CORRECTIONAL  COURTS.  527 

accused  shall  have  the  last  word.     Finally  the  court  gives    Ch.  XV. 
judgment   either   at   the   hearing  or  at  latest  at  the  next 
hearing. 

^  The  proceedings  before  a  correctional  court  are  very 
similar  to  those  which  take  place  before  a  juge  de  paix.  The 
defendant  may  appear  if  he  likes  on  a  mere  statement  that 
his  case  is  to  be  heard.  If  he  does  not  appear  he  must  be  cited 
to  appear  by  a  citation  stating  the  facts,  which  may  be  given 
either  by  the  partie  civile  or  by  the  Procureur  de  la  Ripulligue 
who  in  these  courts  acts  as  public  prosecutor.  ^  If  a  defendant 
is  taken  "  en  flagrant  delit "  he  may  be  brought  at  once  before 
the  Procureur  de  la  E^pioUigue,  who  is  to  interrogate  him  and 
take  him  at  once  before  the  tribunal "  s'il  y  a  lieu,"  that  is,  as  it 
has  been  held  if  the  defendant  is  a  vagabond  or  a  repris  de 
justice.  The  court,  however,  even  in  this  case  will  give  three 
days'  time  to  the  defendant  to  prepare  his  defence  if  he  asks 
for  it.  If  the  defendant  is  a  person  of  good  character  and 
known  domicile  he  is  to  be  cited. 

The  proceedings  before  the  court  differ  from  those  before 
the  juge  de  paix  principally  in  the  circumstance  that  the 
defendant  must  be  interrogated.  This  procedure  differs 
from  that  which  is  followed  in  our  courts  of  summary  juris- 
diction, to  which  it  should  be  compared,,  principally  in  being 
more  summary  in  cases  other  than  those  of  flagrant  ddit. 
Where  an  offender  is  found  committing  an  offence  for  which 
he  may  be  imprisoned  in  a  summary  way,  he  is  dealt  with 
in  France  much  as  he  is  in  England.  In  other  cases  there 
is  this  difference.  In  English  courts  of  summary  jurisdiction 
there  must,  as  a  rule,  be  a  summons,  and  if  the  person  sum- 
moned does  not  appear,  a  warrant  may  be  issued  for  his 
apprehension.  In  the  French  police  courts  and  correctional 
courts,  a  person  who  does  not  appear  on  citation  may  be 
tried  in  his  absence  ^  by  default,  but  he  has  a  right  to  set 
aside  such  a  judgment  by  "  forming  opposition"  to  it  within 
a  certain  time,  in  which  case  he  has  a  right  to  be  heard  at 
the  next  sitting  of  the  court. 

1  0. 1.  0.  p.  179-200. 

2  Helie,  Prat.  Or.  i.  p.  196,  quoting  law  of  May  25,  1863. 
'  C.  7.  C.  149,  seq.  and  185,  seg. 


528  INSTITUTION  OF  CRIMINAL  PROCEEDINGS. 

Ch.  XV.  I  come  now  to  the  more  careful  and  elaborate  procedure 
whicli  is  followed  in  the  case  of  crimes,  though  it  may  also 
be  applied  to  the  case  of  dSlits  and  contraventions.  The  sum- 
mary methods  already  described  are  peculiar  to  the  case 
of  d^lits  and  contraventions. 

There  are  various  ways  in  which  the  first  steps  may  be 
taken  towards  the  commencement  of  serious  criminal  pro- 
ceedings. They  seem  to  be  four  in  number,  though  they  are 
not  specifically  distinguished  in  the  Code  d'lnstr^uction  Crimi- 
nelle.  All  are  more  or  less  affected  by  the  definition  of 
flagrant  dSlit,  which  is  as  follows : — ^ "  Le  d^lit  qui  se 
"  commet  actuellement,  ou  qui  vient  de  se  commettre  est 
"  un  flagrant  d(51it.  Seront  aussi  repute  flagrant  ddlit,  le  cas 
"  ou  le  pr4venu  est  poursuivi  par  la  clameur  publique  et  celui 
"  oil  le  prevenu  est  trouve  saisi  d'effets,  armes,  instruments, 
"  ou  papiers  faisant  presumer  qu'il  est  auteur  ou  compUce, 
"  pourvu  que  ce  soit  dans  un  temps  voisin  du  d^lit." 

With  regard  to  cases  of  flagrant  delit,  where  the  punish- 
ment involves  any  "  peine  afilictive  ou  infamante,"  any  one 
is  authorised,  and  indeed  required,  to  arrest  the  offender  at 
once.  2 "  Tout  d^positaire  de  la  force  publique,  et  meme 
"  toute  personne,  sera  tenu  de  saisir  le  prevenu  surpris  en 
''  flagrant  delit,  et  de  le  conduire  devant  le  Procureur  de  la 
"  Republique  sans  qu'il  soit  besoin  de  mandat  d'amener  si 
"  le  crime  ou  d^lit  emporte  peine  afflictive  ou  infamante." 
This  resembles,  as  closely  as  the  nature  of  the  case  permits, 
our  law  as  to  arrest  without  warrant  in  cases  of  felony 
and  in  other  cases  subjected  to  it  by  statute.  When  the 
prisoner  is  brought  before  the  Procureur  de  la  BepMique, 
he  is  to  be  dealt  with  by  him  as  if  he  had  been  brought 
before  him  otherwise. 

In  the  second  place,  proceedings  may  begin  by  a  "  d4- 
noTiciation,"  which  is  ^  defined  by  M.  H41ie  as  "  I'avis  donne 
"  au  Ministfere  Public  des  crimes  ou  delits  dont  on  a  con- 
"  naissance."  *  The  Code  d' Instruction  Criminelle  requires  all 
constituted  authorities,  functionaries,  and  public  officers  who 
in  the  exercise  of  their  functions  come  to  know  of  a  crime 

1  c.  I.  c.  41.  2  c.  I.  a.  106. 

'  Helie,  Prat.  Cr.  i.  p.  49.  *  0.  I.  C.  29-31. 


PEOCUREUE  DE  LA  RlfiPUBLIQUE.  5^9 

or  delit,  and  all  persons  who  have  witnessed  a  violent  attack  Ch.  XV. 
{attentat)  either  upon  the  public  safety  or  the  life  or  property 
of  an  individual,  to  give  notice  of  it  to  the  Procureur  de 
la  R6publique^  or  to  the  maire,  commissaiy  of  police,  ^Juge 
de  paix,  or  officer  of  gendarmerie,  who  are  to  *  transmit  the 
ddnonciation  to  the  Procureur  de  la  Rdpiiblique. 

In  the  third  place,  any  person  injured  by  a  crime  or  dilit 
may  make  a  complaint  {plainte),  and  *  constitute  himself 
fartie  civile  before  a  juge  ^instruction. 

In  the  fourth  place  when  any  of  the  officers  of  the  judicial 
police  have  become  aware  of  the  fact  that  a  crime  has  been 
committed  they  are  empowered  and  required  at  once  to 
take  proceedings  for  the  detection  and  apprehension  of  the 
criminal. 

The  principal  officers  by  whom  these  duties  are  discharged 
are  the  Procureur  de  la  Bipuhlique  and  the  Juge  d' Instruc- 
tion. Their  duties  are  similar,  and  the  Code  d' Instruction 
Criminelk  seems  to  assume  that  the  Procureur  de  la 
RSpuUigue  will  first  appear  upon  the  scene,  and  that  he  will 
be  followed  by  the  Juge  d' Instruction  ^  to  whom,  as  well  as 
to  the  Procureur  Qin^ral,  the  Procureur  de  la  'Bipublique 
is  bound  to  give  notice  of  his  proceedings,  and  upon  whose 
appearance  the  matter  will,  to  some  extent,  be  taken  out  of 
his  hands.  To  begin  then  with  the  duties  of  the  Procureur 
de  la  BdpiMique  ^  in  every  case  of  flagrant  ddit  punishable 
with  death,  travaux  fords,  transportation,  detention,  re- 
clusion,  banishment,  or  civil  degradation,  he  is  bound  at 
once  to  go  to  the  place,  to  draw  up  the  procds-verbaux 
necessary  to  ascertain  and  record  the  fact  that  the  offence 
has  been  committed  (constater  le  corps  de  dilit),  its  nature,  and 
the  state  of  the  place  where  it  was  committed,  and  to  receive 
the  declarations  of  the  persons  who  were  present  or  who 
have  information  to  give.  He  must  call  before  him  all 
persons  presumed  to  be  in  a  state  to  give  information,  and 
take  down  their  declarations  in  writing.     He  has  a  right  to 

1  C.  I.  C.  50.  2  C.  /.  C.  48.  3  G.  I.  C.  54. 

^  C.  /.  C.  63,  sen.  ^  a.  I.  C.  22,  32. 

'  C.  /.  C  32-47.      "  Lorsque  le  fait  sera  de  nature  a  cntramer  une  peine 

"  afaictive  ou  infamante."  The  punishments  are  those  so  described  in  the 
Code  Penal,  7  and  8. 

VOL.    I.  MM 


530  JUGE  d'insteuction. 

Ch.  XV.  forbid  any  one  to  leave  the  house  or  place  where  the  inquiry 
is  going  on  under  penalty  of  ten  days  imprisonment  and  100 
francs  fine ;  he  is  to  seize  arms  used  in  the  crime,  things 
acquired  by  it,  and,  "  in  short,  everything  which  can  be 
"of  service  for  the  manifestation  of  the  truth."  He  is  to 
question  the  suspected  person  on  all  these  matters,  and  to 
make  proces-verhaux  of  them.  He  may  also  search  for  papers 
and  seal  up  all  he  finds.  His  procds-verhavx  ought  to  be 
made  in  the  presence  of  and  countersigned  by  the  commissary 
of  police,  the  maire,  or  two  citizens.  He  may  arrest  any 
suspected  person  against  whom  there  are  strong  presumptions 
(indices  graves),  or  if  he  does  not  appear  may  issue  a  warrant 
(jnandat  d'amener)  against  him.  He  may  also  summon  ex- 
perts, and  in  particular  medical  experts.  The  results  of  aU 
these  inquiries,  and  all  proces-verhaux,  papers,  and  other 
matters  are  to  be  transmitted  by  the  Procureitr  de  la 
Ripuhlique  to  the  Juge  d' Instruction. 

^  In  any  case  in  which  the  master  of  a  house  calls  upon 
the  Procureur  de  la  Ripublique  to  record  the  commission  in 
that  house  of  any  crime  or  dMit,  flagrant  or  not,  the 
Procureur  de  la  R4puhlique  has  the  same  powers  as  he  has 
in  the  case  of  flagrant  delit. 

^  In  cases  where  the  Procureur  de  la  Bdpuhlique  learns  by 
any  means  that  a  crime  or  dilit,  not  flagrant,  has  been  com- 
mitted, or  that  a  person  suspected  of  any  crime  or  ddlit  is  in 
his  arrondissement  he  is  bound  to  call  on  the  Juge  d' Instruc- 
tion to  inquire  into  the  matter,  but  cannot  proceed  himself  in 
the  manner  just  described. 

I  now  come  to  the  functions  of  the  Juge  d' Instruction.  ^  In 
the  first  place,  in  all  cases  of  flagrant  ddit  or  apparently 
requisition  by  the  master  of  a  house  he  may  do  himself 
all  the  acts  which  may  be  done  by  the  Procureur  de  la 
Bipullique  as  already  described,  and  he  may  call  upon  the 
Procureur  de  la  MpuUique  to  be  present,  but  not  so  as  to 
delay  operations  in  which  he  may  be  engaged.  He  is  bound 
to  examine  all  documents  transmitted  to  him  by  the  Pro- 
cureur  de  la  BSpuUique,  and  may  go  over  them  again  if  he 
considers  them  incomplete. 

1  C.  /.  C  05.  2  C.  I.  C.  47.  5  C.  I.  C.  59-60. 


THE  INSTRUCTION.  531 

^  By  whatever  means  he  becomes  informed  of  a  crime  he  Ch.  XV. 
must  send  for  every  one  mentioned  to  him  as  having  know- 
ledge  of  the  circumstances,  and  must  examine  them  upon 
oath  separately,^  secretly,  and  in  the  absence  of  the  accused. 
Their  depositions  are  signed  by  the  judge,  by  the  greffier  who 
takes  them  down,  and  by  the  witnesses  themselves. 

As  to  the  manner  in  which  the  depositions  are  to  be  taken 
M.  Helie  makes  the  following  observation,  ^  "  II  est  gdn^rale- 
"  mentreconnu  que  le  juge  d'instruction  ne  doit  point  procdder 
"  vis-a-vis  des  temoins  par  forme  d'interrogatoire,  il  doit  les 
"  entendre  et  recueillir  leiirs  declarations,  il  doit  h,  la  fois  main- 
"  tenir  dans  le  proc^s-verbal  leurs  expressions,  leurs  phrases, 
"  en  un  mot  I'originalit^  de  la  deposition.  II  doit  constater 
"les  circonstances  qui'impriment  a  chaque  declaration  un 
"  caractere  plus  o\\  moins  marque  de  certitude." 

The  judge  may  search  the  house  of  the  suspected  person, 
or  search  for  and  seize  documents  or  other  things  in  the  same 
way  as  the  Trocunur  de  la  Bepuhlique. 

*With  respect  to  procuring  the  presence  of  suspected 
persons  who  have  not  been  arrested  by  the  Procureur  de  la 
Bdpuhlique,  the  Juge  d'instruction  may  issue  either  a 
mandat  de  compariction,  which  answers  to  our  summons,  or  a 
mandat  d'amener  which  answers  to  our  warrant.  If  the 
defendant  is  arrested  in  the  manner  described  above  by 
the  Procureur  de  la  Bepuhlique,  ^  he  is  "  en  ^tat  de  mandat 
d'amener,"  till  he  is  brought  before  the  Juge  d'instruction. 
^  When  the  suspected  person  appears  before  the  Juge  d! In- 
struction either  upon  a  mandat  de  eomparution,  or  upon  a 
mandat  d'amener,  he  must  be  interrogated  in  the  case  of  a 
mandat  de  eomparution  at  once ;  in  the  case  of  a  mandat 
d'amener  within  twenty-four  hours.  If  his  answers  are  satis- 
factory he  is  discharged,  if  not  he  is  remanded  under  a  mandat 
de  dipdt.  This  mandat  de  dipdt  may  be  changed  into  a 
mandat  d'arrit  (which  however  can  be  issued  only  upon  the 
requisition  of  the  Procureur  de  la  Bipuhlique),  at  any  period 

^  C  I  C  71-79. 

2  This  is  not  stated  in  words  in  the  Code,  but  the  practice  is  so,  and  the 
Code  does  not  prescribe  publicity.  jy    ,   n  ■      •   no  mo 

3  Prat   Orim.  i.  Si.  *  Hehe,  Pmt.  Cnm.  i.  99-102. 
»  C.  I.  C.  45.                                                  ^  (^-  ^-  ^-  ^3' 

M  M   2 


532  INTERROGATORY  BY  JUGE  D'INSTRUCTION. 

Ch.  XV.  of  the  instruction.  The  principal  difference  between  them  is, 
that  the  mandat  d'arrSt  is  definitive,  the  mandat  de  ddpSi 
provisional. 

The  interrogatory  of  the  accused  by  the  Juge  d' Instruc- 
tion is  one  of  the  most  characteristic  parts  of  the  French 
procedure,  and  it  is  certainly  the  part  which  is  most  opposed 
to  our  English  notions.  ^  It  is  mentioned  in  the  slightest 
possible  way  in  the  Code  d' Instruction  Criminelle,  and  in 
such  a  manner  as  to  give  no  idea  of  its  importance.  ^M. 
Helie  gives  a  fuUer  account,  it  is  as  follows,  "  Tout  inculpe 
"  contre  lequel  une  procddure  est  instruite  doit  Stre  interroge 
"  par  le  Juge  d'Instruction.  Ce  n'est  qu'en  cas  de  flagrant 
"  delit  que  cette  formality  pent  Stre  remplie  par  le  Minist^re 
"  Public  et  les  officiers  auxiliaires  de  la  police  judiciaire  I'art 
"  40  0.  I.  a  et  I'art  1  de  la  loi  du  20  Mai  1863,  siir  les 
"  flagrants  delits  attribuent  dans  ce  cas  repute  urgent,  ce  droit 
"  exceptionnellement  au  Procureur  de  la  Republique.  Mais 
"  alors  m^me  le  Juge  d'Instruction  qui  peut  refaire  les  actes 
"de  cette  procedure  peut  faire  subir  k  I'inculpd  un  nouvel 
"  interrogatoire. 

"  L'interrogatoire  est  a  la  fois  un  moyen  de  defense  et 
"  un  moyen  d'Instruction.  II  a  pour  but  d'entendre  les  ex- 
"  plications  de  I'inculpd  pour  les  verifier,  de  consigner 
"ses  dendgations  ou  ses  aveux,  de  chercher  dans  ses  de- 
"clarations  la  verity  des  faits.  De  ce  qu'il  constitue  un 
"  moyen  de  defense,  il  suit  qu'il  est  considere  comme  une  forme 
"  essentielle  de  I'instruction,  et  que  la  procedure  serait  frappee 
"  de  nuUitd  si  elle  dtait  close  sans  que  le  prevenu  eut  dte  en- 
"tendu  ou  dument  appeld.  Be  ce  qu'il  constitue  un  moyen 
"  d'iTistruction,  il  suit  que  le  Juge  jpeut  la  r^iterer  toutes  les  fois 
"  qu'il  lejuge  utile. 

It  is  important  to  add  here  though  it  is  not  noticed  by 
M.  Helie,  that  article  613  of  the  code  which  forms  part  of  a 
chapter  relating  to  prisons  contains  the  following  provision. 

"Lorsque  le  Juge  d'Instruction  croira  devoir  prescrire  k 
"  I'dgard  d'un  inculpd  une  interdiction  de  communiquer  il  ne 

^  Dans  le  cas  de  mandat  de  oomparntion  il  interrogera  de  suite  :  dans  le  cas 
de  maudat  d'amener  dans  les  vingt-quatre  heures  au  plus  tard. — C.  /.  C.  93. 
This  is  the  only  mention  made  of  the  interrogatory. 


2 


Prat.  Crim.  i.  97  seq. 


POWER  TO   INTERROGATE  WITH  SOLITARY  CONFINEMENT. 


533 


"  pourra  le  faire  que  par  une  ordonnance  que  sera  transcrite    ch.  XV. 

"  sur  le  registre  de  la  prison.     Cette  interdiction  ne  pourra       

"  s'^tendre  au-delk  de  dix  jours,  elle  pourra  toute  fois  Stre  renou- 
"  vel6e.     II  en  sera  rendu  compte  au  Procureur  G^n^ral." 

The  result  is  that  a  suspected  person  may  at  the  discretion 
of  the  Juge  d'Instruction  be  put  in  solitary  confinement  for 
an  indefinite  time,  during  which  he  may  be  interrogated  by 
the  Juge  d'Instruction  as  often  as  the  latter  pleases.  No  limit 
is  provided  as  to  the  time  during  which  the  "  instruction " 
may  last. 

^M.  Helie  has  some  observations  on  the  principles  on 
which  the  interrogation  should  proceed  which  are  creditable 
to  him,  but  which  to  judge  from  such  reports  of  French  trials 
as  I  have  seen  do  not  appear  to  receive  in  all  cases  the  degree 
of  attention  of  which  they  are  worthy.  "  II  est  aujourd'hui 
"  de  principe  que  le  Juge  d'Instruction  doit  se  bomer  dans 
"  I'interrogatoire  a  poser  loyalement  et  clairement  toutes  les 
"  questions  qui  resultent  de  I'^tude  consciencieuse  des  faits, 
"  qu'il  doit  s'abstenir  de  ces  demandes  captieuses  ou  sugges- 
"tives  employees  dans  notre  ancienne  jurisprudence  pour 
"  surprendre  le  prevenu,  et  provoquer  ses  contradictions  enfin 
"  qu'il  ne  doit  se  servir  d'aucun  detour  d'aucun  artifice  pour 
"  obtenir  des  revelations.  II  pent  sans  doute  lui  adresser, 
"  quoique  avec  prudence  et  reserve,  de  sages  exhortations,  il 
"  peut  lui  demontrer  par  un  raisonnement  simple,  rinsuffisance 
"  de  ses  r^ponses,  mais  il  ne  doit  point  substituer  h,  I'examen 
"  un  combat  ou  le  plus  faible  doit  necessairement  succomber. 
"Le  droit  d'interroger  n'emporte  pas  celui  de  d^battre  les 
"reponses  et  de  leur  dresser  des  embiiches  au  moyen  de 
"  questions  habilement  tissues.  Le  juge  ne  cherche  pas  un 
"  coupable  mais  seulement  la  verity."  He  adds,  "  La  r^gle 
"  legale  est  qu'il  doit  ^tre  interroge  avant  la  communication  des 
"  charges "  (evidence),  "  que  cette  communication  doit  lui 
"  gtre  donn^e  ensuite,  et  qu'il  doit  alors  ^tre  interrog^  de  nou- 
"veau  et  ^tre  mis  k  mgme  d'y  r^pondre."  The  interrogatory 
is  secret,  the  accused  is  not  allowed  to  have  counsel  present, 
What  he  says  is  taken  down  in  the  form  of  a  narrative  in  the 

1  Hffie,  Prat.  Crim.  97.  Compare  the  conduct  of  the  juge  d'instruction  in 
the  case  of  L^ot'ade,  Vol.  III.  pp.  475-477. 


534 


REFERENCE  TO   COUB  D' ASSISES. 


Ch.  XV.  first  person.  ^  He  may  lay  mdmoires  or  written  arguments  be- 
fore  the  Juge  d' Instruction,  but  he  has  no  legal  right  to  see  the 
depositions  of  the  witnesses  or  other  evidence  against  him. 
It  is,  however,  usual  to  communicate  to  him  in  a  final  inter- 
rogatory all  the  evidence  collected  during  the  instruction  that 
he  may  discuss  them  and  prepare  his  defence. 

^  The  Juge  d' Instruction  is  bound  to  keep  the  Procureur  de 
la  Bipublique  advised  of  all  his  proceedings,  and  the  latter 
may  demand  to  see  all  the  documents  as  they  are  drawn  up 
but  he  must  not  keep  them  for  more  than  twenty-four  hours. 
If  the  Juge  d' Instruction  goes  to  any  place  for  the  purpose 
of  his  inquiry  he  must  be  accompanied  by  the  Procureur  de  - 
la  BSpublique. 

When  the  Juge  d' Instruction  has  completed  his  inquiries, 
he  must  inform  the  Procureur  de  la  B^publique  of  the  fact, 
and  he  within  three  days  must  make  such  requisitions  as  he 
thinks  fit  of  the  Juge  d' Instruction. 

*The  Juge  d' Instruction  must  deliver  an  interlocutory 
judgment  (ordonnance)  on  these  requisitions.  If  the  Juge 
d' Instruction  thinks  that  the  facts  proved  do  not  amount  to 
an  offence  against  the  law,  or  that  the  probability  of  the 
guilt  of  the  accused  is  insufficient  to  put  him  on  his  trial, 
the  judgment  may  be  that  "  il  n'y  a  pas  lieu  de  poursuivre," 
upon  which  the  defendant  is  set  at  liberty. 

If  the  offence  is  regarded  as  a  contravention  the  prisoner 
must,  if  in  custody,  be  set  at  liberty,  but  sent  before  the 
tribunal  of  police. 

If  the  offence  is  a  ddlit  the  prisoner  must  be  sent  before 
the  Correctional  Court,  and  if  the  offence  is  one  for  which  he 
may  be  imprisoned,  he  must  be  kept  in  custody  if  he  is  in 
confinement. 

The  Procureur  de  la  BipuUique  is  to  send  the  documents 
to  the  Court  before  which  the  prisoner  is  sent,  and  that 
Court  disposes  of  the  matter  in  the  way  already  described. 

If  the  Juge  d' Instruction  thinks  that  there  is  evidence 
enough  to  put  the  accused  on  his  trial  for  a  crime,  he  must 
order  the  documents  in  the  case  and  a  list  of  the   exhibits 

'  Prat.  Crim.  112.  ^  0.  I  C  61-62 

»  C.  /.  C.  127-135;  Hflie,  Prat.  Crim.  111-117. 


CHAMBRE  D' ACCUSATION.  535 

(pieces  servant   a   conviction)  to  be  sent  to  the  Promtreur    Ch.  XV. 
Giniral  or  the  Cour  cCAppel.     Thereupon  the  mandat  d'arr^t 
or  de  dijpdt  is  continued  until  the  Court  of  Appeal  makes  its 
order  on  the  matter. 

^  The  Pfocureur  de  la  BSpuUique  or  the  .partie  civile  may- 
oppose  the  interlocutory  judgment  before  the  chambre  d' accu- 
sation, but  the  prisoner  is  not  allowed  to  do  so  unless  the 
order  has  reference  to  his  being  admitted  to  bail  and  in 
some  other  rare  cases. 

*  Every  prisoner  may,  if  both  he  and  the  Procureur  de  la 
Bipublique  join  in  requesting  it,  be  provisionally  set  at  liberty 
on  his  undertaking  to  appear  when  required.  In  cases  in 
which  the  maximum  punishment  is  two  years'  imprisonment 
the  prisoner  has  a  right  to  be  so  set  at  liberty  if  he  has  a 
domicile,  and  has  not  been  previously  convicted  of  a  crime  or 
sentenced  to  a  years'  imprisonment.  In  cases  in  which  the 
provisional  liberation  is  not  a  matter  of  right  the  defendant 
may  be  held  to  bail. 

This  part  of  French  Criminal  Procedure  is  the  part  which 
differs  most  widely  and  most  characteristically  from  our  own, 
the  Procwrev/r  de  la  BSpixhligue  and  Juge  d' Instruction,  their 
power  of  holding  inquiries,  drawing  up  procis-verbaux,  ex- 
amining suspected  persons  secretly,  and  without  informing 
them  even  of  the  accusation  or  evidence  against  them,  taking 
depositions  behind  their  backs,  and  keeping  them  in  solitary 
confinement  till  (whatever  soft  words  may  be  used  about  it), 
every  effort  has  been  made  to  extort  a  confession  from  them, 
are  contrasted  in  the  strongest  way  with  everything  with 
which  we  are  familiar,  and  which  I  have  described,  in  detail, 
in  the  preceding  chapters.  To  keep  a  man  in  solitary  con- 
finement and  question  him  till  he  is  driven  into  a  confession 
is  not  the  less  torture  because  the  process  is  protracted  instead 
of  being  acute. 

The  instruction  being  completed  the  next  step  to  be  taken 
is  the  mise  en  accusation.  This  is  the  business  of  the  Chambre 
d' Accusation,  a  body  which  answers  roughly  to  our  Grand 
Jury,  though  they  differ  widely,  both  in  their  constitution 

1  C.  I.  C.  135.  "  0.  I.  0.  113. 


53^  CHAMBRE  d' ACCUSATION. 

Ch.  XV.  and  in  their  functions.  ^  The  constitution  of  the  Chanibre 
d' Accusation  is  determined,  not  by  the  Code  d' Instruction 
Criminelle,  but  by  the  laws  which  regulate  the  Cours  d'Appel. 
By  these  laws  the  Cours  d'Apjpel  (then  called  Cours  Impdriales) 
are  divided  into  three  chambers,  the  Chamber  for  Civil 
Affairs,  the  Chamber  of  Accusation,  and  the  Chamber  of 
Appeals  in  Correctional  matters.  The  Chamber  of  Accusa- 
tion must  consist  of  five  judges  at  least,  and  in  the  ordinai-y 
course  of  things  ^  sits  once  a  week,  but  the  Procureur  G4ri4ral 
may  convene  them  when  he  thinks  fit.  The  Procureur 
G6n4ral  and  his  substitutes  the  Avocats  GirtAraux  form  the 
Ministdre  Public  of  the  Cou^s  d'A]ppel  as  well  as  of  the  Cours 
d'Assises. 

3  When  the  Procureur  Giniral  has  received  the  documents 
in  any  case  of  accusation  of  a  crime  from  the  Jugc  d' Instruc- 
tion, he  must  make  an  oral  or  written  report  (in  general  in 
five  days)  to  the  Chamhre  dJ Accusation.  During  this  time 
the  partie  civile  and  the  suspected  person  may  write  memoirs 
for  the  use  of  the  Chamhre  d' Accusation.  The  Procureur 
04n4ral's  report  must  conclude  by  requisitions  in  writing 
addressed  to  the  chamber.  The  written  evidence  must  also  be 
read  to  them. 

The  Chamhre  d' Accusation  takes  the  whole  matter  into 
consideration  and  has  power  to  direct  a  further  inquiry  upon 
any  point  which  it  thinks  requires  it.  But  they  examine  no 
witnesses,  and  none  of  the  parties  except  the  Procureur 
Giniral  appears  before  them.  They  may  not  only  consider 
the  question  whether  there  is  a  case  made  out  by  the  Minis- 
tire  Public,  but  also  consider  the  question  whether  the  accused 
has  established  what  (in  the  Roman  law  sense  of  the  word)  is 
described  as  an  exception,  such  as  madness,  prescription,  or  chose 
jugie,  which  is  the  equivalent  of  our  pleas  of  autrefois  convict 
or  acquit.  The  Chamber  of  Accusation  is  in  no  way  bound  by 
the  views  of  the  Juge  d' Instruction.  They  form  their  own 
opinion  upon  all  the  points  which  they  consider  to  be  raised 
by  the  inquiry,  *  and  take  cognizance  of  all  offences  which 

'  20  Ap.  1810  ;  6  July   1810.     Eoger  and  Sorel,  Lois  Usiielles,  pp.  468 
and  473.  2  g.  I.  C.  218. 

8  0.  I.  C.  217-222.  ■>  C.  I.  0.  226-227. 


ARR^T  DE  RENVOI.  537 

axe  connected  eitHer  by  having  been  committed  at  the  same    Ch.  XV. 
time  by  several  persons,  or  at  different  times  and  places  in 
consequence  of  a  previous  agreement,  or  when  one  offence  is 
committed  to  facilitate,  complete,  or  prevent  the  discovery  of 
another. 

As  the  result  of  all  these  operations  the  Chambre  d'Acm- 
sation  may  either  discharge  the  suspected  person,  or  make  an 
order  for  the  trial  of  the  party  by  the  Oour  d' Assises,  or  other 
competent  court,  according  as  they  consider  the  matter  charged 
to  amount  to  a  crime,  d4lit,  or  contravention.  The  one  order 
is  called  an  arr&t  de  non-lieu  and  the  other  an  arrit  de 
renvoi.  Each  must  be  inotiv4  that  is,  it  must  state  in  the 
case  of  the  arrit  de  non-lieu  either  that  the  matter  charged 
does  not  amount  to  an  offence  or  that  the  proof  is  insufficient, 
and  in  the  case  of  the  arrit  de  renvoi  that  there  is  sufficient 
evidence  of  guilt,  and  that  the  fact  charged  is  an  offence  against 
some  specified  penal  enactment.  In  the  case  of  an  arrit  de 
non-lieu  the  suspected  person  must  be  set  at  liberty  and  can- 
not be  prosecuted  again  for  the  same  fact  unless  the  arr6t  was 
based  upon  insufficiency  of  the  evidence  and  new  evidence 
is  discovered. 

If  an  arrit  de  renvoi  is  made  the  Procureur  GinAral  must 
draw  up  an  acte  d' accusation.  This  is  usually  drawn  up  by  an 
Avocat  G4ndral  and  signed  by  the  Procureur  G4n4ral.  It  is 
based  on  the  arrit  de  renvoi  and  must  not  go  beyond  it. 

^ "  L'acte  d'accusation  a  pour  objet  de  faire  connaitre  le 
"  sujet  de  I'accusation,  mais  il  n'en  est  point  la  base ;  la  seule 
"  base  de  I'accusation  est  I'arr^t  de  renvoi.  C'est  cet  arret 
"  qui  fixe  la  nature  et  les  limites  de  I'accusation ;  il  est  le 
"  point  de  depart  et  la  source  unique  de  la  procedure  ult&ieure 
"  et  des  questions  poshes  au  jury."  The  Code  d'Instruction 
Griminelle  ^  says  the  act  of  accusation  shall  set  forth  (1)  the 
nature  of  the  offence  which  forms  the  base  of  the  accusation 
(2)  the  fact  and  all  the  circumstances  which  can  aggravate 
or  diminish  the  punishment :  the  accused  shall  be  named  and 
clearly  designated.  The  act  of  accusation  shall  end  with  the 
following  risum6. 

"  In  consequence  N.  is  accused  of  having  committed  such  a 
'  m\ie,  Pra'.  Crim.  i.  297.  ^  0.  I.  C.  241. 


538  ACTE  d' ACCUSATION. 

Ch.  XV.  "meurtre,  such  a  theft,  or  such  other  crime  with  such  and  such 
"  circumstances."  M.  ^  Hdlie  says  that  it  is  not  a  "  plaidoyer." 
It  ought  to  be  rigorously  exact.  It  ought  to  be  drawn  up 
with  complete  impartiality.  It  ought  to  be  simple,  clear  and 
precise,  as  it  is  not  a  literary  work  but  an  act  of  procedure. 
In  point  of  fact  such  of  these  actes  as  I  have  read,  appear  to 
me  to  be  the  most  ingenious  of  "  plaidoyers."  ^  They  are  like 
the  opening  speeches  of  English  counsel  for  the  Crown,  they 
consist  entirely  of  statements  of  fact,  but  the  facts  are  so 
arranged  as  to  develop  in  the  strongest  way  and  set  in  the 
clearest  possible  light  everything  which  can  be  said  against 
the  prisoner.  They  are  often  drawn  up  with  great  lite- 
rary skill  and  read  like  pungent  and  pointed  abstracts  of 
French  novels.  Moreover  they  often  give  an  account  of  the 
character  of  the  prisoner  and  of  any  discreditable  inci- 
dents in  his  previous  life.  There  is  nothing  in  the  written 
proceedings  in  an  English  court  which  in  any  degree  resembles 
an  acte  d' accusation,  though,  as  I  have  said,  it  has  some 
resemblance  to  the  opening  speech  of  the  Counsel  for  the 
Crown. 

8  The  acte  d' accusation  and  the  arrit  de  renvoi  must  be 
notified  to  the  accused,  and  a  copy  of  each  must  be  given  to 
him ;  and  within  twenty-four  hours  of  this  notification  the 
accused  himself  must  be  transferred  from  the  prison  in  which 
he  had  previously  been  confined  to  the  maison  de  justice 
attached  to  the  court  before  which  he  is  to  be  tried,  *  and  the 
documents  and  exhibits  connected  with  the  case  are  to  be 
taken  to  the  ofiice  (greffe)  of  the  court  where  the  prisoner  is 
to  be  tried,  unless  he  is  to  be  tried  at  the  place  where  the 
Cour  d'Appel  sits,  in  which  case  they  are  already  there. 

I  have  already  described  the  constitution  of  the  Cour 
d' Assises.  Some  remarks  may  now  be  made  as  to  the  powers 
of  its  members.  The  President  of  the  Court  is  not,  like  the 
Lord  Chief  Justice,  or  other  president  of  a  division  of  the 
High  Court,  primus  inter  pares,  but  has  a  position  and  powers 
peculiar  to  himself.  ^  He  is  nominated  for  each  sitting  either 
by  the  Premier  President  of  the    Cour  d'Appel,   or  by  the 

1  Prat.  Orim.  i.  297.  =  See  Vol.  III.  p.  509,  for  an  instance. 

3  a  I.  C.  249.  *  C.  I.  C.  29l.  '  H^lie,  Prat.  Crim.  i.  309-310. 


PRESIDENT   OF  THE  COUE  D' ASSISES.  539 

Minister  of  Justice,  commonly  m  practice  by  the  Minister,    Ch.  XV. 

but  the  Premier   President   may   sit   himself  if  he  thinks       

proper.  ^  His  special  duties  are  defined  by  the  Code  d' In- 
struction Criminelle.  He  is  intrusted  with  "la  police  de 
I'audience,"  that  is,  the  duty  of  keeping  order;  "la  direction 
des  debats,"  that  is,  the  general  superintendence  of  the 
proceedings  subject  of  course  to  the  express  directions  of 
the  law.  In  illustration  of  the  nature  of  this  power 
2  M.  H^lie  says  it  has  been  held  that  he  may  examine  dif- 
ferent accused  persons  separately,  refuse  to  examine  witnesses 
as  to  the  credit  of  one  of  their  number,  or  to  put  questions 
to  them  which  he  considers  useless,  or  forbid  the  prisoner's 
counsel  to  read  to  the  jury  the  decisions  of  other  juries  in 
analogous  cases.  These  powers  are  similar  to  those  which 
an  English  judge  possesses  of  deciding  all  questions  of  law, 
including  questions  as  to  procedure  which  may  arise  in  the 
course  of  a  trial,  but  more  seems  to  be  left  to  the  discretion 
of  a  president  than  is  left  to  the  discretion  of  our  judges.. 

In  addition  to  these  powers  the  President  ^is  "investi 
"  d'un  pouvoir  discretionnaire.  En  vertu  duquel  il  pourra 
"  prendre  sur  lui  tout  ce  qu'il  croira  utile  pour  d^couvrir  la 
"  verity,  et  la  loi  charge  son  honneur  et  sa  conscience  d'em- 
"  ployer  tous  ses  efforts  pour  en  favoriser  la  manifestation." 
The  next  article  specifies  some  of  the  most  important  of  the 
cases  in  which  this  power  may  be  used.  The  President 
"  pourra  dans  le  cours  des  debats  appeler  meme  par  mandat 
"  d'amener  et  entendre  toutes  personnes  ou  se  faire  apporter 
"  toutes  nouvelles  pieces  qui  lui  paraitraient,  d'apr^s  les  nou- 
"  veaux  developpements  donnes  k  I'audience,  soit  par  les  ac- 
"  cus^s,  soit  par  les  temoins  pouvoir  repandre  un  jour  utile 
"  sur  le  fait  contest^.  Les  temoins  aussi  appeMs  ne  prSteront 
"  point  serment,  et  leurs  declarations  ne  seront  considere^s 
"  que  comme  renseignements." 

This  discretionary  power  is  bounded  only  by  very  general 
rules.  It  ought  to  be  so  employed  as  to  bear  upon  the 
subject  of  the  trial  in  progress.  It  ought  not  to  be  so 
employed  as  to  contradict  the  general  law.  The  words  which 
enable  the  President  to  hear  "  all  persons  "  permit  him,  how- 

1  C.  I.  C.  267-270.  =>  Prat.  Crim.  324.  '  C.  I.  C.  268. 


540  INTERROGATION   OF  ACCUSED  BY  PRESIDENT. 

,Ch.  XV.  ever,  to  hear  all  witnesses  who  by  law  are  prohibited  from 
testifying,  or  who  on  other  grounds  cannot  be  called  by  the 
parties. 

I  now  pass  to  the  procedure  at  and  immediately  before 
the  trial  itself. 

^  The  President  must  interrogate  the  accused  secretly 
within  twenty-four  hours  after  the  arrival  at  the  office  of 
the  papers  and  exhibits.  This  it  is  ^  said'-  is  "  un  acte 
"  d'instruction  qui  doit  surtout  constater  ou  la  persistance 
"  de  raccuse  dans  ses  prec^dentes  d&larations,  ou  les  modi- 
fications qu'il  croit  devoir  y  apporter." 

This  important  act  it  is  also  said  "  ouvre  enfin,  en  faveur 
"  de  I'accusd  I'exercice  des  droits  de  sa  defense,  et  prepare 
"  en  recueillant  ses  derni^res  declarations  ^crites,  I'instruc- 
"  tion  orale  de  I'audience."  This  may  be  so,  but  it  may 
also  be  regarded  in  another  light — that  is  to  say,  as  an 
advantage  given  to  the  President  in  the  oral  debate  between 
himself  and  the  accused  at  the  public  hearing.  On  this 
occasion  the  judge  must  ask  the  accused  if  he  has  counsel, 
and  if  he  has  not  he  must  nominate  one  for  him  "  d' office!' 
3  He  must  also  inform  the  accused  that  he  has  five  days  in 
which  to  move  (as  we  should  say)  to  quash  the  proceedings 
(former  une  demande  en  nuUite).  *The  prisoner's  counsel 
may  communicate  with  the  accused  after  the  interrogatory, 
and  inspect  all  the  documents  and  exhibits,  and  take  copies 
of  such  of  them  as  they  think  proper.  ^  The  prisoner  has  a 
right  to  one  copy  of  the  proeds-verlaux  recording  the  offence, 
and  of  the  depositions  of  the  witnesses,  gratuitously. 

^  A  panel,  as  we  should  say,  of  thirty-six  jurors  and  four 
supplementary  jurors  is  drawn  by  lot  from  ''  a  general  list  of 
persons  qualified  to  serve  as  jurors,  and  of  these  thirty  at 
least  must  be  present  before  the  jury  of  twelve  is  formed. 

^  The  list  of  jurors  is  notified  to  the  accused  the  day  before 
the  trial.     When  the  day  for  the  trial  arrives  all  the  names 

'  0.  I.  G.  266-293.  2  g^iie   p^at.  Crim.  i.  344. 

3  C.  I.  a.  296.  4  c.  I.  e.  302. 

I  G  I.  G.  305.  6  G.  I.  C.  388. 

'  The  rales  as  to  the  qualifications  of  jurors  and  the  formation  of  the  general 
list  are  contained  in  G.  I.  G.  381,  Heq. 
8  G.  I.  G.  395. 


JURY  AT   THE  COUR  d' ASSISES.  541 

are  put  into  a  box  and  drawn  out  by  chance.  ^  As  they  Ch.  XV. 
appear  the  accused  or  his  counsel  first,  and  then  the  Pro- 
■cureur  Q&niral  either  challenge  or  do  not  challenge  until  no 
more  than  twelve  names  remain,  or  until  twelve  names  are 
unchallenged.  ^If  an  odd  number  of  jurors  appear,  the 
accused  has  one  challenge  more  than  the  prosecution.  If 
the  number  is  even,  they  have  an  equal  number  of  challenges, 
namely,  the  difference  between  the  number  of  jurors  who 
appear  and  twelve,  divided  by  two. 

If  the  trial  is  likely  to  be  long,  two  supplementary  jurors 
are  chosen,  who  sit  as  jurors,  but  do  not  deliberate  or  give 
their  verdict  unless  any  of  the  twelve  are  incapacitated  by 
illness  or  otherwise. 

The  trial  before  the  Gmir  d' Assises  is  as  follows.  The 
prisoner  being  introduced  s-vyithout  irons  but  guarded,  the 
president  asks  his  name,  profession,  place  of  abode,  and  place 
of  birth.  He  then  *  warns,  or  ought  to  warn,  the  counsel 
for  the  defence  to  say  nothing  against  his  conscience  or  the 
respect  due  to  the  law,  and  to  express  himself  with  decency 
and  moderation.  As  this  slightly  absurd  ceremony  is  not 
commanded  under  the  penalty  of  nullity  it  is  commonly 
omitted.  It  is  indeed  useless  and  disrespectful  to  the  person 
to  whom  it  is  addressed.      The  president  then  ^  swears  the 

1  0. 1.  C.  399. 

^  0.  I.  C.  401.  Suppose  e.g.  thirty-one  jurors  appear,'  the  two  sides  have 
nineteen  challenges  between  them,  the  prisoner  ten  and  the  prosecutor  nine. 
If  thirty  appears  each  has  nine. 

^  "L'aocuse  comparaitra  libre,  et  seulement  accompagne  de  gardes  pour 
"  I'empScher  de  s'evader."  I  know  of  no  better  illustration  of  the  true  mean- 
ing of  "  libre."  A  man  being  tried  for  his  life,  actually  in  prison  and  seated 
between  two  gendarmes,  is  "  libre  "  because  he  has  no  handcuffs  on,  and  so  he 
is,  free  from  handcuffs. 

*  C.  I.  G.  311. 

^  G.  I.  G.  312.  The  form  of  oath  is,  "  Vous  jurez  et  promettez  devant  Dieu 
"  et  devant  les  hommes  d'examiner  avec  I'attention  la  plus  scmpuleuse  les 
"  charges  qui  seront  port^es  centre  N  ;  de  ne  trahir  ni  les  interdts  de  I'accuse 
"  ui  ceux  de  la  soci^te  qui  I'accuse  ;  de  ne  communiquer  avec  personne  jusqu' 
"  .aprfes  votre  declaration ;  de  n'ecouter  ni  la  haine  ou  la  mechancet^  ni  la 
"  crainte  ou  I'affection  ;  de  vous  dfeider  d'apris  les  charges  et  les  moyens  de 
"  defense,  suivant  votre  conscience  et  votre  intime  conviction  avec  I'impartia- 
"  lit6  et  la  fermete  qui  oonviennent  k  un  homme  probe  et  libre." 

Contrast  this  wordy,  lengthy,  tiresome  formula  with  the  words  of  our  jury- 
man's oath,  which  it  seems  to  me  impossible  to  improve  and  difficult  even  to 
vulgarise:— "You  shall  judge  and  truly  try  and  true  deliverance  make, 
"  between  Our  Sovereign  Lady  the  Queen  and  the  prisoner  at  the  bar  whom 
"  you  shall  have  in  charge,  and  a  true  verdict  give  according  to  the  evidence. 
"So  help  you  God."  . 

"Jurez   et    promettez  devant  Dieu    et   devant    les    hommes"   is    much 


542  INTEEROGATION   OF  ACCUSED   AT   TRIAL. 

Ch.  XV.  jury,  and  ^  exhorts  the  accused  to  be  attentive,  which  he  is 
likely  to  be  in  any  case.  The  acte  d'accusation  is  then  read, 
and  the  prisoner  is  to  be  thus  addressed  : — "  Voil^  de  quoi 
"  vous  ^tes  accus^  :  vous  allez  entendre  les  charges ''  (evidence) 
"  qui  seront  produites  centre  vous."  This  statement,  if  made 
(it  is  not  necessary),  is  immediately  falsified,  for  instead  of 
hearing  the  evidence  against  him  the  accused  is  in  practice 
interrogated  himself. 

It  is  a  singular  fact  that  throughout  the  Code  d' Instruc- 
tion Criminelle  there  is  no  reference  to  this  process.  Article 
319  says,  after  several  provisions  as  to  the  evidence  of  the 
witnesses :  "  Apr^s  chaque  deposition  le  President  deman- 
"  dera  au  t^moin  si  c'est  de  I'accus^  present  qu'il  a  entendu 
"  parler :  il  demandera  ensuite  a  I'accus^  s'il  veut  repondre 
"k  ce  qui  vient  d'etre  dit  centre  lui."  This,  if  interpreted 
by  English  lawyers,  would  be  held  to  indicate,  at  least  that 
the  prisoner  was  not  to  be  otherwise  interrogated,  but  a 
totally  different  view  has  been  taken  in  France.  The  fol- 
lowing account  of  the  matter  is  given  by  M.  ^  Helie  :  "  Au- 
"  cune  disposition  du  Code  ne  prescrit  en  termes  precis  et 
"  formels  I'interrogatoire  de  I'accuse.  De  la  on  a  pu  induire 
"  que  dans  son  systfeme,  I'accus^  ne  doit  pas  n^cessairement 
"  subir  cette  forme  de  la  procedure  inquisitoriale,  et  qu'as- 
"  sistant  aux  declarations  des  t^moins  et  ayant  la  faculty 
"  de  les  discuter  il  n'est  tenu  de  faire  connaitre  ses  explica- 
"  tions,  et  son  syst^me  de  defense  qu'apr^s  que  ces  deposi- 
"  tions  sont  terminees.  Ce  systeme,  qui  est  celui  de  la 
"  procedure  accusatoire,  n'a  point  en  g&^ral  et^  admis  dans 
"  notre  pratique.  On  a  fait  d^river  I'interrogatoire  du  droit 
"  que  I'Article  319  reconnait,  soit  au  president,  soit  aux  juges 
"  et  aux  jures,  soit  aux  parties  elle-m§mes,  de  demander 
"  a  I'accus^   aprfes   chaque   deposition    tons    les    ^claircisse- 

less  vigorous  than  "  so  help  you  God."  "  Examiner  avec  I'attention  la  plus 
"  scmpuleuse  "  is  inferior  to  "judge  and  truly  try,"  and  an  abstraction  like 
"la  society  qui  I'aeouse  "  is  less  impressive  than  "  Our  Sovereign  Lady  the 
"  Queen."  The  "  impartiality  et  la  fermete  qui  oonviennent  iun  homme  probe 
"  et  libre,"  would  be  better  taken  for  granted.  Moreover,  from  what  are  the  jury 
"  libres  "  ?  On  the  one  hand,  it  is  not  necessary  to  say  that  they  are  not  serfs  ; 
on  the  other,  they  are  liable  to  be  fined  up  to  2,000  francs  if  they  do  not 
appear.     The  word  is  thus  either  insulting  or  inaccurate. 

1  0.  I.  0,  313.     "Le  president  avertira  Taocuse  d'etre  attentif." 

^  Fmt.  Crim.  i,  373. 


INTERROGATION   OF  ACCUSED  AT   TRIAL.  543 

"  ments  qu'  il  croira  necessaire  a  la  manifestation  de  la  Ch.  XV. 
"  vdrite.  II  est  certain  que  Finterrogatoire,  ^tant  k  la  fois  ' 
"  un  moyen  de  defense  et  un  raoyen  d'instruction,  peut 
"  etre  employ^  dans  I'instruction  orale  aussi  bien  que  dans 
"  I'instruction  ^crite.  II  suit  de  la  que  le  magistrat  qui 
"  adresse  a  I'accuse  des  questions,  et  lui  demande  des 
"  eclaircissements,  a  le  droit  de  I'interpeller  pour  provoquer  sa 
"justification  ou  I'aveu  de  sa  culpability ;  il  doit  sans  le 
"  pressor  ni  le  troubler,  mais  en  le  mettant  a  memo  de 
"  s'expliquer  favoriser  le  libre  d^veloppement  de  sa  parole ; 
"  il  doit  chercher  enfin  avec  la  plus  complete  impartiality  et 
"  uniquement  la  verity.  L'interrogatoire  n'est  ni  une  argu- 
"  mentation  ni  une  lutte  ;  ce  n'est  point  le  d^bat ;  son  but 
"  principal  est  d'indiquer  le  syst^me  de  la  defense,  et  par 
"  consequent  de  poser  les  termes  du  d^bat  et  les  points  qui 
"  doivent  y  ^tre  verifies."  He  adds  that  though  the  interro- 
gatory is  not  essential,  yet  the  president  can  interrogate  the 
accused  either  before  or  after  the  witnesses  are  heard,  the 
former  being  the  common  course.  If  there  were  any 
doubt  as  to  the  legality  of  the  interrogatory,  I  suppose  it 
would  fall  well  within  the  discretionary  powers  of  the 
president. 

Whatever  may  be  the  law  on  the  subject,  the  fact  unques- 
tionably is  that  the  interrogation  of  the  accused  by  the 
president  is  not  only  the  first,  but  is  also  the  most  prominent, 
conspicuous,  and  important  part  of  the  whole  trial.  More- 
over, all  the  reports  of  French  trials  which  I  have  seen,  and 
I  have  read  very  many,  suggest  that  the  views  taken  by 
M.  Helie  as  to  the  proper  object  of  the  interrogatory,  and 
the  proper  method  of  carrying  it  on,  are  not  shared  by  the 
great  majority  of  French  Presidents  of  Cours  d' Assises.  '  The 
accused  is  cross-examined  with  the  utmost  severity,  and  with 
continual  rebukes,  sarcasms,  and  exhortations,  which  no  counsel 
in  an  English  court  would  be  permitted  by  any  judge  who 
knew  and  did  his  duty  to  address  to  any  witness.  This 
appears  to  me  to  be  the  weakest  and  most  objectionable  part 
of  the  whole  system  of  French  criminal  procedure,  except 
parts  of  the  law  as  to  the  functions  of  the  jury.  It  cannot 
1  See  e.g.  Vol.  III.  p.  476. 


544  PROCUREUE-Gi;NBRAL  AT  THE  TRIAL. 

Ch.  XV.  but  make  the  judge  a  party — and  what  is  more,  a  party 
adverse  to  the  prisoner — and  it  appears  to  me,  apart  from  this, 
to  place  him  in  a  position  essentially  undignified  and  incon- 
sistent with  his  other  functions.  A  man  accused  of  a  crime 
ought  as  such  to  be  an  object  of  pity  and  something  ap- 
proaching to  sympathy  on  the  part  of  all  but  those  whose 
special  duty  it  is  to  bring  him  to  justice.  This  is  the  special 
duty  of  those  who  accuse  him,  and  they  are  always  keen 
enough  to  discharge  it.  The  duty  most  appropriate  to  the 
office  and  character  of  a  judge  is  that  of  an  attentive  listener 
to  all  that  is  to  be  said  on  both  sides,  not  that  of  an  investi- 
gator. After  performing  that  duty  patiently  and  fully,  he  is 
in  a  position  to  give  a  jury  the  full  benefit  of  his  thoughts 
on  the  subject,  but  if  he  takes  the  leading  and  principal  part 
in  the  conflict — and  every  criminal  trial  is  as  essentially  a 
conflict  and  struggle  for  life,  liberty  from  imprisonment,  or 
character,  as  the  ancient  trials  by  combat  were — he  cannot 
possibly  perform  properly  his  own  special  duty.  He  is,  and 
of  necessity  must  be,  powerfully  biased  against  the  prisoner. 
That  in  the  opinion  of  the  French  in  general  this  has  been  the 
case  with  French  judges  appears  to  be  indicated  by  the  fact 
that  by  a  very  recent  enactment  they  have  been  deprived  of 
the  right  which  they  have  hitherto  possessed  of  closing  the 
trial  by  a  r^sumd  which  in  some  respects  resembled  our 
English  summing-up. 

^  The  Frocureur  G4n6ral  states  the  case  to  the  jury,  and  puts 
in  the  list  of  witnesses  to  be  heard,  of  which  list  a  copy  must 
have  been  given  to  the  accused  twenty-four  hours  before  the 
trial.  "  II  doit  se  homer  h.  exposer  les  faits  sans  les  discuter," 
says  ^M.  H^liej  adding,  "Toute  discussion  serait  premature 
"  et  donnerait  a  la .  defense  le  droit  de  r^pondre  k  I'instant 
"  meme."  This  part  of  the  proceedings  appears  to  be  of 
little  importance.  The  Procureur-GiniraVs  position  in  the 
Cour  d' Assises,  though  in  some  respects  analogous  to  that  of 
an  English  counsel  for  the  Crown,  is  in  others  contrasted  to 
it.  The  MinisUre  Puhlic,  consisting  of  him  and  his  sub- 
stitutes, the  avocats  gineraiwc,  are  part  of  the  court.     ^ "  La 

1  C.  /.  C.  315.  2  Hdlie,  Prat.  Grim.  i.  369. 

3  lb.  318. 


KXAMINATION   OF  WITNESSES.  545 

"  Cour  d' Assises  "  .  .  .  "  n'est  constituee  que  par  la  presence  Ch.  xv, 
"  d'un  membre  du  Ministere  Public.  La  presence  de  ce 
"  magistrat  a  tous  les  actes  de  la  procedure  orale,  k  toutes  les 
''  operations  de  la  Cour  est  done  necessaire ;  et  la  nuUite  des 
"  d^bats  serait  encourue  par  le  seul  fait  qu'un  expert  aurait 
"  ete  entendu,  ou  qu'un  t^moin  aurait  ddpose  en  son  absence." 
1  "Whenever  what  the  French  call  an  "  incident "  arises  in  a 
trial,  that  is  to  say,  a  question  rendering  necessary  some 
decision  or  act  on  the  part  of  the  court  or  president,  the 
Procureur  G^ndral  has  a  right  to  make  requisitions,  to  be  heard 
upon  them,  and  to  have  a  judgment  from  the  court  from 
which^he  may  appeal  to  the  Court  of  Cassation. 

^When  the  Procureur  Gdneral. h&s  made  his  statement  the 
witnesses  are  heard  upon  oath  in  an  order  decided  on  by  the 
Procureur  G4n4ral.  Witnesses  in  France  are  not  examined 
as  with  us,  and  they  can  hardly  be  said  to  be  subject  to  cross- 
examination,  s  "  Le  tdmoin  ne  pourra  Stre  interrompu  : 
"I'accuse  ou  son  conseil  pourront  le  questionner  par  I'organe 
"  du  president  aprfes  sa  deposition,  et  dire  tant  centre  lui  que 
"  centre  son  temoignage  tout  ce  qui  pourra  etre  utile  k  la 
"defense  de  I'accuse.  Le  president  pourra  egalement 
"  demander  au  temoin  et  k  I'accus^  tous  les  eclaircissements 
"  qu'il  croira  necessaires  a  la  manifestation  de  la  v^rite.  Les 
"juges"  {i.6.,  the  two  assessors  to  the  president),  "  le  Pro- 
''  cureur  General,  et  les  jur^s  auront  la  meme  faculte,  en 
"demandant  la  parole  au  president.  La  partie  civile  ne 
"  pourra  faire  de  questions,  soit  au  temoin,  soit  a  I'accus^  que 
"  par  I'organe  du  president." 

*  M.  H^lie  remarks  upon  this  :  "  Les  t^moins  doivent  Stre 
"  entendus  dans  leur  depositions ;  ils  ne  doivent  pas  etre 
"  interrogds.  Oette  r^gle  resulte  de  tous  les  textes  du  Code. 
"L'audition  laisse  parler  le  temoin  comme  il  leveut;  elle 
"  reqoit  sa  deposition  dans  les  termes  oil  il  la  con9ue,  ou  il  a 
''  voulu  la  faire ;  elle  lui  conserve  sa  spontaneite  et  sa  liberty. 
"  La  forme  interrogative,  qui  n'est  employee  que  vis-k-vis  des 
"  prevenus,  dirige,  trop  souvent  les  r^ponses  des  temoins  et 
"  quelquefois  les  suggke ;  elle  les  conduit,  par  les  questions 

1  0.  I.  G.  276-278.  '  0.  I.  G.  317. 

3  (7_  J  (7_  319.  "i  Helie,  Prat.  Grim.  pp.  396-397. 

VOL.   I.  N  ^^ 


546  EXAMINATION   OF   WITNESSES   IN   FRANCE   AND   ENGLAND. 

Ch.  XV.  "  qu'elle  pose,  a  des  declarations  irr^flechies  ou  embarrass(;es. 
"  Le  president  pent,  sans  aucune  doute,  apr^s  la  deposition 
"  faite,  demander  au  t^moin  tons  les  ^claircissements  n&es- 
"  saires,  toutes  les  explications  qui  doivent  en  completer ; 
"  mais  il  doit  le  faire  avec  I'esprit  de  lui  venir  en  aide,  de  lui 
"  signaler  les  faits  qu'il  oublie,  de  lui  rappeler  le  sujet  de  son 
"  temoignage,  et  d'en  ecarter  les  additions  superflues,  et  non 
"  pour  imprimer  a  ce  temoignage  un  caract^re  que  le  t^moin 
"  n'a  pas  voulu  lui  donner,  pour  forcer  le  sens  et  la  portde  de 
"  ses  declarations,  pour  enchalner  ses  hesitations  quelquefois 
"  legitimes,  et  vaincre  les  doutes  que  son  esprit  conserve 
"reellement."  M.  Helie's  cautions  would  hardly  have  been 
given  if  his  experience  had  not  shown  that  they  were 
necessary. 

1  The  president  must  require  the  greffier,  and  the  Procureur 
Giniral  and  the  accused  may  call  upon  the  president  to 
require  the  greffier,  to  take  a  note  of  any  variations  between 
the  evidence  of  the  witnesses  at  the  trial,  and  their  deposi- 
tions made  before  the  trial. 

^The  jury,  the  Procureur  GivAral,  and  the  judges  (the 
president  is  not  expressly  mentioned),  are  expressly  authorised 
to  take  notes  of  anything  said  by  the  witnesses  which  they 
consider  important,  "provided  that  the  discussion  is  not 
"  interrupted  by  it." 

Taken  together  these  provisions  form  a  strong  contrast 
to  our  English  practice  and  principles.  The  whole  of  the 
English  procedure  proceeds  upon  what  I  cannot  but  regard  as 
the  true  theory,  that  the  only  way  by  which  oral  testimony 
can  be  made  fuU  and  relevant  is  by  bringing  it  out  by  questions, 
asked  by  the  side  which  calls  the  witness,  and  that  the  only  way 
in  which  it  can  be  made  tolerably  trustworthy  is  by  subjecting 
it  in  every  detail  to  the  severest  possible  adverse  criticism. 
This  with  us  is  effected  by  cross-examinations  in  which  the 
adverse  party  criticises  everything  said  by  the  witness  which 
he  thinks  he  can  shake,  besides  attacking,  if  he  thinks  it 
right,  the  character  of  the  witness  himself  Moreover  our 
procedure  is  based  upon  the  theory  that  all  the  facts  should, 
as  far  as  possible,  be  ascertained  before  they  are  discussed. 
'  C-.  /.  C.  318.  "-  c.  I.  G.  328. 


FRENCH  RULES  OF   EVIDENCE.  547 

Under  the  French  system  the  effect  of  each  witness's  Ch.  XV. 
evidence  is  discussed  as  soon  as  it  is  given,  and  a  highly  "" 
important,  if  not  the  principal,  part  of  the  discussion  consists 
in  cross-examining  the  prisoner  about  it.  The  direct  cross- 
examination  of  the  witness  is  confined  to  the  president,  who 
has  not  those  strong  motives  for  doubting  the  witness's 
truthfulness  which  alone  make  cross-examination  really  effec- 
tive. The  parties,  and  especially  the  prisoner,  have  to 
cross-examine  through  him,  and  to  cross-examine  a  witness 
through  a  third  person,  who  may  probably  be  hostile  or  at 
least  indifferent  to  the  cross-examiner,  is  as  ineffectual  as 
it  would  be  to  carry  on  a  fight  by  telling  a  proxy  where  to 
strike.  The  fact  that  a  trial  is  a  combat  must  be  realised 
and  carried  out  in  every  detail  if  the  fight  is  to  be  fair.  The 
witnesses  called  against  either  side  are  for  the  time  being 
the  enemies  of  that  side,  and  its  representative  should  be 
allowed  to  attack  them  hand  to  hand. 

The  provision  as  to  the  taking  of  notes  is  noticeable. 
According  to  our  practice,  it  is  the  indispensable  duty  of  the 
judge  (though  no  law  imposes  it  on  him)  i  to  take  a  careful 
note  of  everything  said  by  a  witness  ;  and  in  order  to  do  this 
it  is  essential  that  the  witness  should  be  carefully  and 
deliberately  questioned,  and  that  he  should  not  be  allowed  to 
run  on  saying  whatever  he  likes.  If  this  were  not  done, 
there  would  be  endless  disputes  as  to  what  the  witness  really 
said,  which  disputes  could  never  be  decided.  The  provisions 
of  the  French  Code  taken  as  a  whole,  suggest  that  the  pre- 
liminary instruction  must  in  practice  settle  what  the  wit- 
nesses are  going  to  say  at  the  trial ;  and  this  is  one  of  many 
circumstances  which  leads  me  to  think  that  the  instruction 
and  the  interrogatories  to  which  the  accused  are  subjected 
form  the  real  trial  in  France,  and  constitute  in  practice 
the  materials  on  which  the  jury  have  to  decide. 

There  are  some  rules  of  evidence  contained  in  the  Code 
d'Instruction  Criminelle,  as  to  the  capacity  of  witnesses 
to    testify.      Article    322     excludes    the     evidence    of    all 

1  This  is  if  not  tlie  most  anxious,  at  all  events  the  most  fatiguing  part  of 
a  iudae's  duty  To  take  notes  incessantly  for  eight  or  even  ten  hours  is  an 
exertion  which  no  one  who  has  not  known  what  it  is  could  properly  appreciate. 

N  N   2 


548  FRENCH  AND  ENGLISH  RULES  OF  EVIDENCE. 

Ch.  XV.  the  lineal  ancestors  and  descendants,  the  brothers  and 
sisters,  the  husband  and  wife  of  the  accused,  and  also  the 
evidence  of  such  of  the  ddnonniateurs  as  are  entitled  by  law  to 
any  money  recompense  for  their  denunciation.  They  may,  how- 
ever, testify  if  none  of  the  parties  object,  and  even  if  the  parties 
do  object,  the  president,  in  virtue  of  his  discretionary  power, 
can  hear  them  without  oath,  by  way  as  it  is  said  of  renseigne- 
m&nt.  ^Some  other  persons  (as,  for  instance,  some  convicts) 
are  incapacitated  to  the  same  extent. 

These  rules  are  of  an  altogether  different  kind  from  those 
which  regulate  trials  in  an  English  court.  When  closely 
examined,  our  rules  of  evidence  will  be  lound  to  be  reducible 
to  the  following : — (1)  Proof  may  be  given  of  facts  in  issue,  and 
relevant  or  treated  as  relevant  to  the  issue,  and  of  no  others, 
with  a  few  rare  exceptions.  There  are  careful  and  elaborate 
rules  as  to  what  does  and  does  not  constitute  relevancy ;  most 
of  them  are,  more  or  less  consciously,  founded  on  the  principle 
that  the  causes  and  effects  of  any  given  event  are  relevant 
to  its  existence.  (2)  When  a  fact  may  be  proved  at  all,  it  must 
be  proved  by  direct  evidence,  namely,  if  it  is  an  event  or  occur- 
rence, by  the  evidence  of  some  person  who  perceived  it  by  the 
use  of  his  own  senses  ;  if  it  is  the  existence  of  a  document  by 
the  production  of  the  document  itself,  or,  under  circumstances, 
a  copy  of  it  or  statement  as  to  its  contents. 

These  leading  rules,  though  qualified  by  important  excep- 
tions, are  rigidly  enforced  in  practice,  and  their  enforcement 
gives  to  English  trials  that  solid  character  which  is  their 
special  characteristic.  They  seem  to  be  quite  unknown  in 
French  procedure.  Witnesses  say  what  they  please  and  must 
not  be  interrupted,  and  ^  masses  of  irrelevant,  and  often 
malicious,  hearsay  which  would  never  be  admitted  into  an 
English  court  at  all,  are  allowed  to  go  before  French  juries  and 
prejudice  their  feelings.  The  old  rules  of  evidence  which  were 
in  use  before  the  Revolution,  and  were  derived  from  the 
middle  age  version  of  the  Eoman  law,  were  exceedingly 
technical  and  essentially  foolish.  They  were  accordingly 
abolished  absolutely,  and  nothing  was  put  in  their  place. 
The  essentially  scientific  though  superficially  technical  i\iles  of 

1  Helie,  Prat.  Crim.  i.  pp.  372-380.  2  ggg  g_^^  Yo\.  III.  p.  485. 


DEFENCE  IN  FRENCH  TRIALS. 

evidencQ  which  give  their  whole  colour  to  English  trials,  and 
which  grew  up  silently  and  very  gradually  in  our  courts,  seem 
to  me  to  be  just  what  is  wanted  to  bring  French  trials  into 
a  satisfactory  shape ;  but  the  evils  of  the  old  system  were  so 
strongly  impressed  on  the  authors  of  the  Code  d' Instruction 
Criminelle,  that  destruction  was  the  only  policy  which  pre- 
sented itself  to  their  minds.^ 

After  the  witnesses  have  been  examined,  the  jury  are 
addressed  by  the  partie  civile,  the  Ministdre  Public,  and  the 
prisoner,  in  succession.  The  partie  civile  and  the  Minist&re 
Public  reply,  and  the  accused,  or  his  counsel,  or,  indeed,  both 
in  succession,  rejoin.  There  might  thus  be  six,  or  counting 
the  opening  statement  of  the  Minis/ire  Public  seven,  or  if  the 
prisoner  spoke  as  well  as  his  advocate  eight,  speeches  in  one 
case,  besides  all  the  discussions  at  the  end  of  each  witness's 
evidence.  The  greatest  possible  number  of  speeches  in  an 
English .  trial  would  be  four,  supposing  the  prisoner  to  call 
witnesses,  and  to  sum  up  as  well  as  open  their  evidence,  and 
so  to  give  the  reply  to  the  crown. 

A  much  wider  field  is  open  to  French  advocates  in  criminal 
trials  than  to  English  advocates,  and  French  taste  differs 
widely  from  our  own  as  to  the  kind  of  speeches  which  should 
be  made.  This  is  due  to  many  causes,  some  arising  out  of  the 
difference  between  the  characters  of  the  two  nations,  but  some 
from  the  difference  between  the  laws  in  force  in  them. 


'  The  strongest  possible  illustration  of  this  is  given  by  Article  342  of  the 
Code  d'InstriKtion  Criminelle,  which  characteristically  provides  that,  when  the 
jury  has  retired,  "le  chef  des  jures  lui  fera  lecture  de  I'instruction  suivante 
"  qui  sera  en  outre  affichee  en  gros  caractferes  dans  le  lieu  le  plus  apparent  de 
"  leur  chambre.  '  La  loi  ne  demands  pas  compte  aux  jures  des  moyens  par  les- 
"  'quels  ils  se  sent  convaincus  ;  elle  ne  leur  prescrit  point  de  regies  desquelles 
"  '  ils  doivent  faire  particulierement  d^pendre  la  plenitude  et  la  suffisance  d'une 
"'preuve.  Elle  leur  prescrit  de  s'interroger  euz-memes  dans  le  silence  et  le 
"  '  recueillement,  et  de  chercher,  dans  la  sincerite  de  leur  conscience,  quelle 
"  '  impression  ont  faites  sur  leur  raison  les  preuves  rapportees  centre  I'acouse,  et 
"'les  moyens  de  sa  defense.  La  loi  ne  leur  dit  point: — Vous  tiendrez  pmvr 
' ' '  vrai  tout  fait  attests  par  tel  nombre  de  temoins  ;  elle  ne  leur  dit  pas  non  plus : — 
"  '  Vous  ne^regarderez  pas  comme  sujjfisamment  Uahlie  toute  preuve  qui  ne  sera  pas 
"  'formie  par  tel  proems-verbal,  de  telles  pieces,  de  tant  de  temoins,  ou  de  tant 
"  '  d' indices  ;  elle  ne  leur  fait  que  cette  seule  question,  qui  renferme  toute  la 
"  'mesure  de  leurs  devoirs  : — Avez-vous  une  mtime  conviction?"  There  is  a 
great  deal  more  of  it,  but  as  it  does  not  matter  whether  these  forms  are  gone 
through  or  not,  they  are  probably  important  only  as  throwing  light  on  the  views 
of  the  authors  of  the  Code.  An  English  foreman  reading  to  his  colleagues  a 
sermon  of  this  sort  would  look  and  feel  silly. 


549 

Ch.  XV. 


55°  COUNSEL   FOR  THE   CROWN   IN   FRENCH   TRIALS. 

Ch.  XV.  The  Procureur  GiTiAral,  as  I  have  observed,  being  some- 
thing  between  counsel  and  judge,  is  allowed  to  say  nearly 
what  he  pleases.  ^ "  L'ind^pendance  de  la  parole  Aw  Minist^re 
''  Public  dans  le  d^v^loppement  de  ses  requisitoires  est  una 
"  r^gle  incontest^.  II  a  le  droit  de  dire  tout  ce  qu'il  croit  con- 
"  venable  et  necessaire  au  bien  de  la  justice,  et  le  President 
"  ne  peut  lui  opposer  aucune  entrave.  II  pent  s'appuyer  sur 
"  des  renseignements  qui  lui  sont  foumis  par  des  faits 
"  Strangers  au  proems,  et  faire  connaitre  aux  jurds  les  cons4- 
''  quences  legales  de  leur  declaration.  II  peut  produire  tons 
"  les  documents  utiles  k  I'accusation,  et  il  a  etd  jug(5  m^me  qu'il 
"  peut  faire  usage  de  declarations  re9ues  dans  une  autre  affaire, 
"  et  des  declarations  Sorites  d'une  instruction  supplementaire 
"  non  communique  a  la  defense.  Cependant  il  est  preferable  de 
"produire  dans  le  cours  des  ddbats  les  pieces  dont  on  veut  se 
"servir.  II  ne  faut  pas  transporter  I'instruction  dans  le 
"  requisitoire  et  lui  oter  la  garantie  de  la  contradiction." 

The  effect  of  this  is  that  the  Procureur  Giniral  may  use 
arguments  to  persuade  the  jury  to  convict  the  prisoner  which 
we  should  regard  as  wholly  improper.  For  instance,  in  a 
prosecution  for  an  agrarian  murder  in  Ireland,  the  counsel  for 
the  Crown  might,  if  he  was  in  the  position  of  a  Procureur 
Girhiral,  enlarge  upon  every  kind  of  political  and  social  topic, 
read  articles  in  newspapers  which  he  thought  likely  to  excite 
the  indignation  of  the  jury,  dwell  upon  the  importance  of 
making  examples,  and  point  out  the  bad  effects  of  the  laxity 
of  former  juries  in  acquitting  when  they  ought  to  have  con- 
victed and  the  good  effects  which  in  cases  alleged  to  be 
analogous  to  the  one  being  tried  had  followed  from  convictions. 
He  might  also  appeal  to  evidence  alleged  to  have  been  given 
in  private  in  some  other  case,  and  read  letters  alleged  to  have 
been  intercepted  since  the  prisoner's  committal,  in  which  it  was 
alleged  that  the  prisoner  was  the  agent  of  a  secret  society. 
This  last  might  be  regarded  as  going  a  long  way,  but  would 
still  be  quite  legal. 

The  counsel  for  the  defence  has  a  good  deal  of  latitude, 
though  not  quite  so  much  as  the  Procureur  General.     The 
following^    is  strange   to   an   English   reader.     "En   ce  qui 
^  H^lie,  Frat.  Orim.  i.  p.  449.  "  lb,  p.  421. 


DEFENCE  IN   FEENCB  TRIALS.  551 

"  concerne   les   croits   de   la   defense   il  a  6t6  decidd  que  le    Ch.  XV. 

"  president  peut,  sans  fixer  k  I'avance  la  dur^e  des  plaidoiries, 

''  2  inviter  les  d^fenseurs  k  gtre  brefs ''  (a  valuable  privilege), 

"  qu'ii  peut  interdire  k  un  accusd  de  presenter  sa  defense  en 

"vers,  la  severity  des  formes  judiciaires  repoussant  cette  forme 

"  de  langage,  qu'il  peut  interdire  de  citer  les  decisions  de  jury, 

"  dans  les  affaires  analogues,  qu'il  peut  egalement  interdire  la 

"  discussion  dans  la  plaidoirie  sur  le  fond  de  questions  relatives 

"  k  I'application  de  la  peine.     Mais  le  d^fenseur  peut  soutenir 

"que  les  faits  incriminds  ne  constituent  pas  le  crime  que 

"  poursuit  I'accusation,  par  exemple,  que  I'liomicide  commis  en 

"  duel  n'est  pas  un  meurtre,  que  la  retention  d'une  chose  trouv^e 

"  n'est  pas  un  vol.   II  peut  quoique  ce  point  soit  contest^  faire 

"  connaltre  aux  jur^s  les  consequences  Mgales  de  la  declaration 

"qu'ils  vont  rendre.   II  peut  enfin  soutenir  et  developper,  non 

"  seulement  les  excuses  legales,  mais  les  faits  d'attenuation  qui 

"resultent  des  debats,  et  qui  peuvent   motiver  I'application 

"  des  circonstances  att^nuantes." 

Whether  an  English  prisoner  may  put  his  defence  into 
verse  is  a  question  which  has  not  yet  arisen,  and  which 
may  be  dealt  with  when  it  does  arise,  but  the  other  points 
mentioned  are  of  great  interest. 

Whatever  may  be  the  law  as  to  the  prisoner's  right  to  refer 
to  other  cases,  or  to  the  consequences  of  the  verdict,  it  is 
hardly  possible  that  the  Procureur  Giniral  should  be  per- 
mitted to  enter  upon  topics  on  which  the  prisoner  is  not  to  be 
at  liberty  to  reply,  so  that  if  these  topics  are  once  introduced, 
their  full  discussion  cannot  be  avoided,  and  this  may  easily 
leave  the  question  of  guilty  or  not  guilty  to  be  lost  sight  of 
in  the  discussion  of  general  questions  connected  with  or 
suggested  by  the  case. 

The  right  of  the  counsel  for  the  defence  to  address  the  jury 
on  questions  of  law,  as  for  instance,  whether  killing  in  a  duel 
is  meurtre,  is  one  of  the  features  in  which  the  administration 
of  justice  in  France  differs  essentially  from  the  administration 

1  English  judges  have  the  same  right,  but  they  do  not  always  succeed. 

«  Mr    - this  is  the  last  day  of  term,  and  we  have  many  cases  m  the 

"  paper  "    ' "  In  none  of  which  has  my  client  any  interest  whatever,   my 
"  lord,"' 


552  POWERS   OF   JURY   IN    FRENCH   TRIALS. 

Ch.  XV.  of  justice  in  England.  In  England  the  judge's  duty  is  to 
direct  the  jury  in  all  matters  of  law,  and  any  arguments  of 
counsel  upon  the  subject  must  be  addressed  to  him  and  not 
to  the  jury.  This  is  not  only  perfectly  well  established  as 
matter  of  law,  but  it  is  as  a  fact  acquiesced  in  by  all  whom  it 
concerns.  In  France  the  principle  that  the  court  decides 
questions  of  law  and  the  jury  questions  of  fact  only  is  if 
possible  more  strenuously  asserted,  as  will  appear  immediately, 
than  in  England ;  but  in  practice  French  juries  habitually  take 
the  law  into  their  own  hands,  and  convict  or  acquit  not  in  ac- 
cordance with  the  judge's  directions — for  the  judge  as  will  be 
seen  does  not  direct  them — but  according  to  their  own  views 
after  hearing  the  Procureur  Giniral  and  the  prisoner's  counsel. 
The  result  is  that  practically  and  especially  in  the  case  of 
crimes  of  violence  done  under  the  influence  of  passion,  French 
juries  decide  with  far  more  reference  to  momentary  sympathy 
than  to  the  definitions  of  the  Code  Pinal.  Such  a  question 
as  what  constitutes  demence,  or  self-defence,  or  the  like  is 
decided  not  by  rules  of  law,  but  in  each  particular  case  by  the 
verdict  of  the  jury. 

The  power  of  the  jury  to  return  a  verdict  of  guilty  with 
extenuating  circumstances,  and  thereby  to  prevent  the  Court 
from  passing  the  extreme  sentence  allowed  by  law,  and  the 
right  (which  follows  from  it),  of  advocates  to  address  them- 
selves to  the  question  of  the  existence  of  such  circumstances, 
natiirally  introduces  into  the  speeches  of  counsel  an  element 
almost  unknown  in  English  defences. 

In  practice  these  points  taken  together  give  to  an  advocate 
for  the  prisoner  in  France  a  far  wider  field  for  comment  of  all 
kinds  than  belongs  to  an  English  barrister.  He  can  practi- 
cally urge  the  jury  on  every  kind  of  ground,  general  and 
special,  to  mitigate  the  law,  or  even  to  set  it  aside  altogether, 
on  the  ground  that  they  disapprove  of  it,  either  in  general  or 
in  its  application  to  the  particular  case,  and  this  contention  is 
constantly  successful.  For  instance,  a  common,  perhaps  the 
commonest  and  most  effectual  argument  in  favour  of  circon- 
stances  attdnuantes  in  capital  cases,  is  declamation  against 
capital  punishment. 

My  own  opinion  is  that  in  this  matter  the  English  practice 


president's  eesum^.  553 

is  in  every  way  superior  to  the  French.  To  put  sentiment  ch.  XV. 
in  the  -  place  of  law,  or  to  allow  the  administration  of 
criminal  justice  to  be  overridden  or  interrupted  by  appeals  to 
sentiment,  is  to  deprive  the  criminal  law  of  its  most  charac- 
teristic, most  effective,  and  most  wholesome  attributes.  It 
can  never  be  a  real  terror  to  evil-doers  and  a  real  encourage- 
ment to  the  healthy  indignation  of  honest  men  against 
criminals  unless  it  is  put  in  force  inflexibly,  and  recognised 
and  complied  with  even  if  the  case  is  one  in  which  much  is  to 
be  said  in  mitigation  of  punishment.  Murder  should  be  called 
murder,  though  it  may  well  be  that  the  particular  murderer 
ought  not  to  be  put  to  death.  Whether  he  should  or  should 
not  be  put  to  death  is  a  question  on  which  I  think  the  jury 
ought  to  have  nothing  decisive  to  say,  though  their  expressed 
wish  that  a  convict  should  be  treated  mercifully  ought  always 
to  be  considered  by  those  in  whose  hands  the  power  of  showing 
mercy  is  vested. 

After  the  speeches  are  concluded  the  President  used,  till 
the  year  1882  to  make  a  r^sumS.  The  ^  Code  says :  "  Le 
"  president  resumera  1' affaire.  II  fera  remarquer  aux  jures 
"  les  principales  preuves  pour  ou  centre  I'accuse.  II  leur 
"  rappellera  les  fonctions  qu'ils  auront  k  remplir."  Of  the 
risumi  ^  M.  H^lie  says  only  that  it  should  be  short,  "  parce- 
"  que  la  loi  n'a  voulu  qu'un  resume,"  and  that  it  should  be 
absolutely  impartial.  It  never  was  anything  like  so  im- 
portant as  an  English  summ.ing  up,  which  in  important  cases 
includes  a  restatement  to  the  jury  of  all  the  important  points 
in  the  evidence.  Practically,  it  is  scarcely  possible  that  after 
interrogating  the  accused  not  only  on  the  whole  affair  at  the 
beginning  of  the  case,  but  in  reference  to  every  detail  after 
the  evidence  of  each  witness,  the  President  should  sum  up 
impartially. 

Besides  making  his  r4sum6  the  President  is  required  by 
the  ^  Code  to  state  to  the  jury  in  writing  the  questions  which 
they  are  to  answer.  In  a  technical  point  of  view  this  is  one  of 
the  most  important  parts,  if  not  the  most  important  part  of  the 
whole  procedure,  for  the  questions  so  proposed  together  with 

1  C.  I.  0.  336.  ^  Prat.  Crim.  i.  p.  425. 

3  C.  I.  0.  337-340. 


554  QUESTION   LEFT   TO   JURY. 

Ch.  XV.  the  answers  returned  are  a  principal  part  of  the  materials  on 
which  the  Court  of  Cassation  has  to  decide  if  there  is  an 
appeal. 

The  subject  is  dealt  with  ^in  four  short  articles  in  the 
Code  which  give  no  idea  of  the  number  and  intricacy  of  the 
questions  connected  with  it.  ^  M.  H^lie's  exposition  of  these 
matters  fills  more  than  thirty  pages,  some  of  the  principal 
points  of  which  I  will  refer  to.  It  is  a  general  principle 
that  the  jury  are  to  find  all  the  facts,  including  the  existence 
of  states  of  mind  {circonstances  de  morality)  which  collec- 
tively constitute  the  prisoner's  guilt,  and  that  the  Court  of 
Assize  (not  the  President)  is  to  say  what  is  the  legal  effect 
of  the  facts  found  by  the  jury,  and  what  the  punishment  to 
be  inflicted  if  they  amount  to  a  conviction.  The  object  of 
the  questions  to  each  of  which  the  jury  must  answer  Yes  or 
No,  is  to  constitute  when  taken  with  the  answers  a  statement 
of  facts  which  will  enable  the  Court  to  discharge  their  duty. 
The  result  therefore  of  a  French  trial  by  jury  is  not  to  get  a 
verdict  of  guilty  or  not  guilty,  but  to  get  the  facts  of  the 
case  stated  in  a  form  analogous  to  a  special  verdict  with  us; 
or  to  a  special  case  in  civil  matters. 

From  this  general  theory  result  four  general  rules,  first, 
the  questions  must  reproduce  the  operative  words  (le  dis- 
positif)  of  the  arrit  de  renvoi  made  by  the  Chambre 
d' Accusation.  Secondly,  the  questions  must  dispose  of  all  the 
facts  which,  though  not  expressly  found  by  the  arrM  de  renvoi, 
are  implied  by  it,  and  ought  to  have  been  included  in  it  if  the 
other  parts  of  the  instruction  had  been  fuUy  studied.  But 
the  accusation  must  not  go  beyond  the  arrit  de  renvoi,  though 
it  may  apply  to  facts  not  specifically  stated  in  it  if  they  are 
"  accessoires  ou  modificatifs  de  I'accusation  principale." 

The  third  rule  is  that  questions  may  be  asked  as  to  the 
commission  of  dMits  which  are  connected  with  the  accusation, 
although  the  Cour  d' Assises  deals  in  general  only  with  crimes. 
For  instance  if  a  man  is  accused  of  theft,  as  a  vagrant  or  vaga- 
bond, questions  may  be  asked  as  to  vagrancy  or  beggary.  If 
he  is  accused  of  meurtre,  committed  whilst  poaching, 
questions  may  be  asked  as  to  poaching ;  if  of  fraudulent 
1  C.  I.  0.  337-340.  2  Prat.  Orim.  i.  426-460. 


QUESTIONS   LEFT  TO   JURY.  555 

bankruptcy  connected  with  cheating,  questions  may  be  asked    Ch.  XV. 
as  to  cheating. 

The  fourth  rule  is  that  the  facts  must  be  found  by  the  jury, 
however  authentic  and  conclusive  may  be  the  evidence  given 
of  them. 

These  rules  have  relation  to  the  arrit  de  renvoi,  but  apart 
from  this  it  is  also  the  duty  of  the  President  to  put  to  the 
jury  questions  on  all  facts  relevant  to  the  accusation  which 
are  proved  in  the  course  of  the  trial.  For  instance,  he  may 
put  to  the  jury  the  question  whether  a  circumstance  of  aggra- 
vation {e.g.  that  a  theft  was  committed  at  night)  was  proved, 
and  the  President  decides  2'''>"^™cl,  facie  whether  there  is 
evidence  of  a  circumstance  of  aggravation  to  go  to  the  jury. 
If  his  decision  is  disputed,  the  Court  has  to  settle  the 
question. 

Matters  of  excuse  recognised  as  such  by  the  law  must  be 
left  to  the  jury  if  the  accused  requires  it.  Thus  for  instance 
provocation  by  blows  is  an  excuse  for  meurtre,  but  drunkenness 
is  not,  nor  is  a  provocation  by  words  or  threats.  The  jury 
may  therefore  be  asked  whether  a  man  accused  of  meiirtre 
was  provoked  by  blows,  but  not  whether  he  was  provoked 
by  words. 

Matter  which  if  true  wotild  modify  the  accusation  by 
reducing  the  criminality  to  an  offence  of  a  lower  grade  than 
the  one  charged  must  be  left  to  the  jury.  The  principle  has 
been  stated  as  follows  :  "  The  jury  ought  to  try  the  accusation 
as  the  trial  (les  deiats)  moulds  it,  and  not  as  the  written  pro- 
cedure establishes  it."  Hence  if  a  fact  is  proved  which  is 
not,  but  ought  to  have  been,  stated  in  the  arrit  de  renvoi  a 
question  may  be  asked  upon  it.  I  suppose  for  instance  that 
if  a  man  were  ^  charged  with  colouring  money  circulating  in 
France,  and  it  appeared  that  he  did  so  in  order  to  deceive  as 
to  the  metal,  the  question  whether  he  did  so  in  order  to 
deceive  as  to  the  metal,  might  be  asked  even  if  the  arrM  de 
renvoi  had  omitted  to  state  it.  Secondly,  the  facts  on  the 
trial  may  come  out  otherwise  than  they  did  before  the  Juge 
d' Instruction.  The  president  may  put  questions  founded 
upon  this.  Thus  if  a  man  is  accused  of  a  complete  offence 
1  Code  P(mal,  133. 


556  FORM    OF    QUESTIONS   TO   JURY". 

Ch.  XV.  the  jury  may  be  asked  whether  there  was  a  tentative  ?  If  he 
is  accused  of  meurtre  they  may  be  asked  whether  he  was 
guilty  of  striking  or  wounding  ?  Thirdly,  if  facts  are  proved 
at  the  trial  which  though  distinct  from,  are  accessory  to  the 
principal  accusation,  a  question  may  be  founded  on  them. 
For  instance  on  a  charge  of  robbery  a  question  may  be  asked 
as  to  receiving,  on  a  charge  of  infanticide  a  question  as  to  the 
suppression  of  the  dtat  civile  of  a  child.  If,  however,  the 
facts  are  distinct  from  the  accusation  such  a  question  cannot 
be  asked.  Suppose,  e.g.,  that  if  it  incidentally  appeared  upon 
a  trial,  say  for  robbery,  that  the  accused  must  on  some  other 
occasion  have  committed  perjury,  as  by  swearing  in  some 
other  case  that  he  was  at  a  different  place  from  that  where  the 
robbery  was  committed,  questions  could  not  be  asked  as  to  the 
perjury.  The  line  between  accessory  facts  and  distinct  facts 
is  said  to  be  at  times  hard  to  draw,  which  seems  natural. 

Besides  the  rules  as  to  the  subject-matter  to  which  the 
questions  put  to  the  jury  must  refer,  there  are  a  variety  of 
rules  as  to  the  form  in  which  they  must  be  put.  ^  Every 
question  must  begin  with  "  L' accuse  est-il  coupable  ? "  These 
words  are  considered  as  involving  a  criminal  intention,  and 
must  apparently  be  used  even  if  the  definition  of  the  crime 
given  in  the  Code  Penal  specifies  the  mental  element  of  the 
crime.  It  is  not  enough  to  ask  whether  a  man  accused  of 
theft  has  "  frauduleusement  soustrait  la  chose  d'autrui."  The 
question  must  be  "Est-il  coupable  d'avoir  frauduleusement 
"  soustrait  la  chose  d'autrui  ? "  On  the  other  hand  it  is  enough 
to  ask  whether  a  man  "  est  coupable  "  of  having  passed  bad 
money  without  asking  if  he  knew  the  money  was  bad,  as 
guilty  knowledge  is  implied  in  the  word  "  coupable." 

It  would  be  foreign  to  my  purpose  to  attempt  to  enter  at 
length  into  this  subject.  It  is  sufficient  to  say  that  there  is 
a  considerable  degree  of  resemblance  between  the  French 
rules  as  to  the  degree  of  minuteness  with  which  the  jury  are 
to  be  questioned  and  the  English  law  as  to  certainty  in  an 
indictment.  The  following  observations  of  M.  Helie  state 
the  principle  clearly  and  give  an  excellent  illustration  of  it_ 
"  ^  La  double  competence  du  jury  et  de  la  Cour  d' Assises  est 
1  Helie,  Prat.  Crivi.  p.  440.  2  j;,  p^  45q_ 


FOKM   OF   QUESTIONS  TO  JURY.  557 

"  fondle  sur  le  distinction  du  fait  et  du  droit ;  la  loi  a  attri-    Ch.  XV. 
"  bue  aux  jur^s  la  declaration  des  faits,  et  aux  juges  I'appli- 
"  cation  de  la  loi.     Les  questions  doivent  done  Stre  posees  de 
"  mani^re  £i  ne  presenter  aucune  question  de  droit  a  resoudre 
"  aux  jur^s.      lis  doivent   Stre  interroges   sur  les  faits  qui 
''  sont  les  elements  de   la  qualification    legale,  et    non   sur 
"  cette     qualification     elle-m^me."       The     following     illus- 
tration is   given :  "  Dans   une   accusation   de   faux,  le  jury 
"  n'est  point  appele  4  declarer  s'il  y  a  faux    et   si    I'ecri- 
"  ture   falsifi^e   est  privee,  commerciale   ou  publique,   mais 
"  il    doit   declarer   si   I'accuse   a    commis    dans    telle    acte 
"  telle    alt&ation    materielle    de    nature    a    pr^judicier    a 
"  autrui,   si    I'ecriture    emane    d'un    officier    public,    et    si 
"  elle  constitue  un  acte  du  minist^re  de  cet  officier,  si  elle 
"  emane  d'un  commerQant,  et  si  elle  a  pour  objet  une  opera- 
"tion  de  commerce."      The   difficulty   of    clearly    dividing 
questions  of  fact  from  questions  of  law  has,  however,  been 
experienced  in  France  as  well  as  in  England.     Many  common 
names  of  crimes  and  many  words  used  in  describing  the  con- 
stituent parts  of  crimes  involve  a  legal  element.     ^ "  II  y  a 
"  des  cas  ou  la  separation  du  fait  et  du  droit  est  trfes  difficile. 
"  Dans  une  accusation  de  fausse  monaie  la  question  de  savoir 
"  si  les  pieces  contrefaites  ont  cours  legal,  circonstance  con- 
"  stitutive,  appartient  au  jury.     Le  jury  est  egalement  com- 
"  petent  pour  statuer  dans  une  accusation  d'extorsion,  sur  la 
"  question  de  savoir  si  I'^crit  extorque  opere  obligation,  dis- 
" position,   ou   d&harge" — "si  I'accus^   a  commis  un  viol^ 
"  line  subornation  de  temoins,  un  complot,  un  attentat  a  la 
"  surete  de  I'Etat."     There  are  rules  into  which  I  need  not 
enter  as  to  "  complex  questions  "  which  are  in  some  cases  for- 
bidden and  others  permitted.     They  have  a  resemblance  to 
the   rule  of  English  criminal  pleading  against  duplicity  in 
the  counts  of  an  indictment.     The  object  of  these  rules  is 
to  get  a  direct  yes  or  no  from  the  jury  upon  every  question 
in  the  case.     The  effect  of  this  if  strictly  applied  must  be  to 
make  the  catechism  addressed  to  the  juries  exceedingly  long 
and  intricate.     Thus  it  is  wrong  to  ask  whether  a  meurtre  has 
been  committed  with  premeditation  and   waylaying.      The 
1  Hclie,  Prat.  Crim.  i.  p.  452. 


55^  ENGLISH   PEOCEDUEE   SIMPLER  THAN   FRENCH. 

Ch.  XV.  premeditation  and  waylaying  must  be  separated.  This  seems 
as  if,  upon  a  trial  for  assassination,  the  questions  might  be  : 
Is  A.  guilty  of  having  intentionally  killed  B.  ?  Is  A.  guilty 
of  having  formed  a  design  before  the  act  to  make  an  attack 
on  B.'s  person  ?  Is  A.  guilty  of  having  waited  for  B.  in  a  place 
in  order  to  kiU  him  ?  Is  A.  guilty  of  having  waited  for  B.  in 
a  place  in  order  to  inflict  upon  him  other  acts  of  violence  ? 

It  will  be  seen  from  all  this  that  our  own  procedure,  since 
the  extremely  technical  but  very  skilful  reforms  which  have 
been  made  in  it,  is  considerably  simpler  than  that  of  France. 
The  leading  difference  between  the  two  in  reference  to  this 
particular  matter  is  remarkable.  Each  system  recognizes  in 
the  strongest  way  the  principle  that  questions  of  law  should 
be  separated  from  questions  of  fact,  and  that  the  former 
should  be  decided  by  the  judge  and  the  latter  by  the  jury. 
The  English  system  is  based  upon  the  assumption  that  judge 
and  jury  will  each  perform  their  respective  parts  fairly  and  in 
good  faith,  that  the  judge  will  tell  the  jury  what  is  the  law 
applicable  to  the  whole  case,  and  that  the  jury  will  be  guided 
by  the  judge's  direction  in  finding  their  general  verdict  of 
guilty  or  not  guilty.  Both  history  and  contemporary  ex- 
perience show  that  this  system  has  in  fact  worked  admirably, 
and  does  so  still.  The  judge's  direction,  even  if  it  is 
unpopular,  is  usually  received  by  the  jury  as  conclusive  upon 
the  law  of  the  case.  I  could  mention  many  instances  in  my 
own  experience  in  which  juries  have  found  people  guilty 
of  murder  and  of  other  crimes  in  the  face  of  the  very  strongest 
topics  of  prejudice,  because  the  judge  directed  that  the  law 
required  them  to  do  so. 

In  cases  in  which  the  jury  do  go  against  the  direction  of 
the  judge  in  point  of  law,  the  worst  that  can  happen  is  that 
the  law  on  that  particular  occasion  is  not  carried  into  effect, 
which  may  be  no  great  evil.  It  is  an  established  principle  in 
English  law  that  the  verdicts  of  juries  are  not  precedents, 
and  that  they  must  not  be  referred  to  even  in  argument  in 
other  trials. 

Under  the  French  system  elaborate  and  even  intricate 
precautions  are  devised  to  keep  apart  the  facts  and  the  law, 
to  leave  the  law  for  the  court  while  the  facts  are  for  the  jury, 


DOCUMENTS   GIVEN   TO  JUEY.  559 

but  m  spite  of  these  precautions  the  jury  continually  decide    ch.  XV. 

in  the  teeth  of  the  law,  and  are  in  practice  judges  both  of       

law  and  of  fact.  The  court  gives  them  no  directions  at  all  in 
point  of  law  and  never  did  so.  It  draws  up  for  them^  sort 
of  catechism  intended  to  raise  legal  points  which  the  court 
can  decide,  bu.t  it  is  obvious  that  the  questions  will  be 
answered  according  to  the  general  view  which  the  jury  take 
of  the  law  of  the  case  and  of  the  result  which  they  wish  to 
bring  about,  and  that  in  the  absence  of  any  direction  in  point 
of  law  from  the  court,  they  will  be  guided  principally  by 
their  own  ideas  on  the  subject,  which  may,  and  probably  will, 
be  extremely  vague.  I  have  found  no  trace  in  any  part  of  the 
Code  dJ iTbstruction  Criminelle  of  any  provision  for  the  infor- 
mation of  the  jury  as  to  the  law  relating  to  the  cases,  except 
only  the  provisions  described  above  as  to  the  questions  to  be 
put  to  them.  It  is  not  surprising  under  these  circumstances 
that  they  should  take  the  law  into  their  own  hands  as  they 
notoriously  do  on  many  occasions ;  and  thia  is  one  principal 
reason  why  so  large  a  number  of  French  verdicts,  especially 
in  crimes  of  violence  arising  from  passion,  are  so  unsatis- 
factory and  weak. 

^  The  questions  being  drawn  up  are  delivered  in  writing  to 
the  jury  together  with  the  act  of  accusation,  the  procis-mr- 
laux  which  record  the  offence,  and  all  the  other  papers  in  the 
case  except  the  depositions  of  the  witnesses.  The  effect  of 
this  can  hardly  fail  to  be  to  make  them  take  as  true  the  version 
of  the  facts  given  in  the  acte  d' accusation,  which  contains  a 
clear  and  easy  narrative  of  them,  difficult  to  correct  by  a 
recollection  of  the  oral  evidence,  especially  as  a  French  jury 
caimot,  as  an  English  jury  can  and  often  does,  appeal  to  the 
judge's  notes  to  know  what  some  particular  vdtness  said. 
They  are  told  that  if  the  majority  thinks  that  there  are  ex- 
tenuating circumstances  they  must  say  so  expressly,  and  that 
they  are  to  vote  upon  each  question  secretly.  The  foreman  is 
required  to  read  to  the  jury  before  they  begin  their  delibera- 
tions the  long  formula,  part  of  which  I  have  quoted  above, 
which  is  also  to  be  written  up  in  large  letters  in  the  room. 


1  G.  I.  C.  3a-U9. 


560  jury's  votes  as  to  questions. 

Ch.  XV.     The  performance  of  this  ceremony  is  practically  optional,  as 
its  omission  involves  no  consequences. 

^  The  jury  deliberate  and  then  vote  on  each  question  pro- 
posed to  them.  ^Each  juryman  has  two  tickets  marked 
yes  and  no  for  each  question.  The  tickets  are  counted  and 
burnt  after  each  vote,  and  the  result  yes  or  no  is  recorded  on 
the  margin  of  the  paper  of  questions.  The  matter  is  decided 
by  a  bare  majority,  and  the  jury  are  expressly  forbidden  to 
state  the  number  of  the  votes. 

How  these  arrangements  may  be  suited  to  France  I  do  not 
venture  to  say.  If  they  were  applied  to  English  trials  I 
believe  they  would  be  most  injurious.  According  to  our 
experience  a  jury  is  a  useful  but  a  somewhat  rough  instru- 
ment, the  duty  of  which  in  criminal  trials  is  to  say  whether 
a  prisoner  is  proved  to  be  guilty  beyond  all  reasonable  doubt- 
If  twelve  people  of  the  class  from  whence  jurors  are  drawn 
say  yes,  he  is  guilty,  he  probably  is  so.  If  any  of  them  doubt, 
even  though  they  may  be  a  minority,  the  proper  course  is  to. 
discharge  them  and  have  a  new  trial.  In  such  cases  there  is 
no  reason  why  the  majority  should  be  right.  Many  of  the 
jury  are  men  of  little  intelligence,  and  apt  to  follow  any  lead, 
so  that  the  minority  may  probably  be  more  intelligent  and 
independent  than  the  majority.  I  should  say  that  if  a  jury 
were  seven  to  five  or  even  nine  to  three,  there  was  a  reason- 
able doubt  in  the  case.  I  should  also  think  that  the  rule 
that  juries  should  vote  by  a  secret  ballot  would  be  a  direct 
inducement  to  impatience,  and  fatal  to  any  real  discussion  of 
the  matter. 

There  is  one  other  point  in  which  the  English  and 
French  systems  are  strongly  contrasted.  This  is  the  French 
system  of  circonstances  atUnuantes  and  the  English  sys- 
tem of  recommendations  to  mercy.  The  finding  of  cir- 
constances atUmiantes  by  a  French  jury  ties  the  hands  of 
the  Court  and  compels  them  to  pass  a  lighter  sentence  than 
they  otherwise  would  be  entitled  to  pass.  It  appears  to  me 
to  be  as  great  a  blot  upon  the  French  system  as  the  way  in 
which  that  system  sets  the  judge  in  personal  conflict  with 

I  C.  I.  c.  345. 

-  lielie,  Prat.  Grim.  i.  p.  466  ;  Law  13  May,  1836  ;  Roger  et  Sorel,  825. 


CIRCONSTANCES  ATT^NUANTES.  56 1 

the  prisoner.     It  gives  a  permanent  legal  effect  to  the  first    Ch.  xv. 

impressions  of  seven   out  of  twelve  altogether  irresponsible       

persons,  upon  the  most  delicate  of  all  questions  connected 
with  the  administration  of  justice — the  amount  of  punish- 
ment which,  having  regard  to  its  moral  enormity  and  also  to 
its  political  and  social  danger,  ought  to  be  awarded  to  a  given 
offence.  These  are,  I  think,  matters  which  require  mature 
and  deliberate  consideration  by  the  persons  best  qualified  by 
thpir  position  and  their  previous  training  to  decide  upon 
them.  In  all  cases  not  capital  the  discretion  is  by  our  law 
vested  in  the  judge.  In  capital  cases  it  is  practically  vested 
in  the  Secretary  of  State  for  the  Home  Department  advised 
by  the  judge,  and  inasmuch  as  such  questions  always  attract 
great  public  interest  and  attention  and  are  often  widely  dis- 
cussed by  the  press,  there  is  little  fear  that  full  justice  will 
not  be  done.  To  put  such  a  power  into  the  hands  of  seven 
jurymen  to  be  exercised  by  them  irrevocably  upon  a  first 
impression  is  not  only  to  place  a  most  important  power  in 
most  improper  hands,  but  is  also  to  deprive  the  public  of  any 
opportunity  to  influence  a  decision  in  which  it  is  deeply  in- 
terested. Jurymen  having  given  their  decision  disappear 
from  public  notice,  their  very  names  being  unknown.  A 
secretary  of  state  or  a  judge  is  known  to  every  one,  and  may 
be  made  the  mark  of  the  most  searching  criticism,  to  say 
nothing  of  the  political  consequences  which  in  the  case  of  a 
secretary  of  state  may  arise  from  mistakes  in  the  discharge 
of  his  duty. 

On  the  other  hand,  our  English  system  allows  the  jury 
to  exercise  at  least  as  much  influence  on  the  degree  of 
punishment  to  be  inflicted  on  those  whom  they  may 
convict  as  they  ought  to  have.  It  is  true  that  the  recoqi- 
mendation  to  mercy  of  an  English  jury  has  no  legal  effect 
and  is  no  part  of  their  verdict,  but  it  is  invariably  considered 
with  attention  and  is  generally  effective.  In  cases  where  the 
judge  has  a  discretion  as  to  the  sentence,  he  always  makes  it 
lighter  when  the  jury  recommend  the  prisoner  to  mercy.  In 
capital  cases,  where  he  has  no  discretion,  he  invariably  in 
practice  informs  the  Home  Secretary  at  once  of  the  recom- 
mendation, and  it  is  frequently,  perhaps  generally,  followed 

VOL.   I.  0   0 


562 


IlECOMMBNDATIONS   TO   MERCY. 


Ch.  XV.    by  a  commutation  of  the  sentence.     This  seems  to  me  in- 
finitely  preferable  to  the  system  of  circonstances  atUnuantes. 
Though  the  impression  of  a  jury  ought  always  to  be  respect- 
fully considered,  it  is  often  founded  on  mistaken  grounds,  and 
is  sometimes  a  compromise.     It  is  usual  to  ask  the  reason 
of  the  recommendation,  and  I  have  known  at  least  one  case 
in  which  this  was  followed  first  by  silence  and  then  by  a 
withdrawal  of  the  recommendation.     I  have  also  known  cases 
in  which  the  judge  has  said,  "  Gentlemen,  you  would  hardly 
'  have  recommended  this  man  to  mercy  if  you  had  known 
'as  I  do  that  he  has  been  repeatedly  convicted  of  similar 
'  offences."    There  are  also  cases  in  which  the  recommendation 
is  obviously  grounded  on  a  doubt  of  the  prisoner's  guilt,  and 
in  such  cases  I  have  known  the  judge  tell  the  jury  that  they 
ought  to  reconsider  the  matter  and  either  acquit  or  convict 
simply,  the  prisoner  being  entitled  to  an  acquittal  if  the 
doubt  seems  to  the  jury  reasonable.     This  will  often  lead  to 
an  acquittal. 

The  French  jurors  bring  their  declaration  into  court  when  it 
is  finished,  and  it  is  read  for  the  first  time  in  the  absence  of  the 
accused,  who  is  afterwards  called  in  and  hears  it  read  by  the 
President.  If  the  prisoner  is  acquitted  he  is  set  at  liberty  at 
once,  and  ^may  recover  damages  from  his  dinonciateurs 
for  calumny  if  they  are  private  persons.  The  claim  against 
the  dinonciateur  must  be  made  before  the  Coiir  d! Assises 
if,  before  the  case  is  over,  the  accused  knows  who  the 
dinonciateur  is. 

^  If  the  accused  is  convicted  the  Procureur  Gineral  calls  for 
the  application  of  the  law.  The  accused  may  be  heard  upon 
this  requisition.  ^  jf  \q  can  show  that  the  facts  proved  by 
the  declaration  of  the  jury,  which  is  conclusive  as  to  their 
truth,  do  not  amount  to  an  offence  known  to  the  law  "  he  is 
entitled  to  absolution."     If  not  he  must  be  sentenced. 

An  arrit  d' absolution,  *  it  is  said  is  usually  pronounced 
when  "  la  declaration  de  non-culpabiUt^  n'est  pure  et  simple, 
"  lors  qu'une  dffiberation  de  la  Cour  d' Assises  est  necessaire 
I'  pour  I'appr^cier."     As  for  instance  in  a  case  where  the  jury 

'     ^  C.I.  0.  358.  2  C.  I.  G.  362. 

s  a.  I.  C.  364.  -  H^Ue,  Prat.  Crim.  i.  p.  481. 


ABSOLUTION. 


563 


found  the  fact  alleged,  but  declared  that  the  accused  acted  Ch.  XV. 
without  fraud  or  criminal  intention.  If  the  prisoner  is  im- 
properly "absous"  the  Court  of  Cassation  may,  upon  an 
appeal  by  the  Procureur  Gtniral,  set  aside  the  order  of  abso- 
lution. If  the  appeal  succeeds  on  the  ground  that  the  Court 
denied  the  existence  of  a  penal  law  still  in  force  the  order 
may  be  pronounced  absolutely.  If  it  is  pronounced  on  any 
other  ground  it  can  be  set  aside  only  "  in  the  interest  of  the 
law,"  i.e.  to  avoid  the  establishment  of  a  bad  precedent,  but 
without  prejudice  to  the  interests  of  the  parties  absolved, 
^so  at  least  M.  H^Ue  explains  article  410.  What  is  to 
happen  if  the  accused  ought  to  have  been  "  absous, '  and 
absolution  was  refused  is  not  expressly  stated.  I  suppose  the 
case  would  fall  under  the  general  rule  and  involve  a  new 
trial. 

A  trial  in  the  Cour  d' Assises  is  subject  to  the  following 
incidents : — 

1.  ^  When  it  has  once  begun  it  must  go  on  till  it  is  finished, 
subject  to  necessary  adjournments  for  rest,  unless  a  witness 
fails  to  appear,  in  which  case  it  maybe  adjourned  till  the  next 
session. 

2.  *  If  the  prisoner  is  convicted,  and  the  court  is  convinced 
that  the  jury  are  mistaken  on  the  merits,  the  court  may 
respite  judgment,  and  adjourn  the  case  to  another  session 
to  be  tried  before  a  new  jury,  but  their  decision  is  final. 

3.  *  The  accused  may  appeal  to  the  Court  of  Cassation 
upon  any  matter  of  law  apparent  upon  the  face  of  the  pro- 
ceedings, but  the  utmost  result  that  can  be  obtained  by  this 
appeal  is  a  declaration  of  the  nullity  of  the  trial,  and  an 
order  for  a  new  trial. 

4.  *  If  the  accused  is  acquitted  the  public  prosecutor  may 
appeal  and  have  the  order  set  aside  but  only  "  in  the  interest 
"of  the  law,"  i.e.  to  prevent  the  establishment  of  a  bad 
precedent,  and  without  prejudice  to  the  acquitted  person. 

5.  *  A  demand  for  review  may  be  made  before  the  Court  of 
Cassation  in  three  cases : 

1  Helie,  Prat.  Grim.  i.  p.  532.  ^  C.  I.  C.  353,  354. 

'  C.  I.  0.  352.  '  G.  I.  O.  373,  408,  seq. 

5  G.  I.  G.  409.  «  C.  I.  G.  443. 

0   O   2 


564  FRENCH  AND  ENGLISH  SYSTEMS   COMPARED. 

Ch.  XV.        (1).  When  after  a  conviction  for  homicide  the  person  sup- 
""^       posed  to  have  been  killed  is  found  alive. 

(2).  ^  When  inconsistent  convictions  have  taken  place. 
(3).  When  a  witness  on  whose  evidence  a  person  has  been 
convicted  has  been  himself  convicted  of  false  evidence  given 
at  the  trial. 

In  either  of  these  cases  a  new  trial  must  be  ordered  before 
a  different  court. 

These  are  the  principal  provisions  of  the  Code  d'Instrudion 
Criminelle  of  sufficient  general  interest  to  be  noticed  in  this 
place. 

I  have  only  one  remark  to  add  to  those  already  made.  The 
whole  system  from  first  to  last  bears  upon  it  the  clearest 
traces  of  being  a  compromise  between  two  different  systems. 
If  the  jury  were  left  out  the  whole  system  would  be  sym- 
metrical and  harmonious.  A  crime  is  committed,  a  number  of 
careful  preliminary  inquiries  are  made  by  subordinate  officers 
under  the  general  direction  of  a  sort  of  judge-advocate  who 
has  to  satisfy  other  official  personages  who  are  judges  but  not 
advocates :  first,  that  the  suspected  person  should  be  tried, 
and  then  that  he  is  guilty.  The  prisoner  is  closely  interrc 
gated  at  every  step  in  the  proceedings,  the  evidence  is  sifted 
and  arranged  with  the  greatest  care  before  it  comes  before 
the  court.  If  the  court  had  merely  to  satisfy  itself  and  to 
declare  its  satisfaction  or  the  reverse,  the  whole  scheme  would 
be  harmonious,  but  either  the  jury  or  the  judges  are  super- 
fluous. The  presence  of  the  jury  turns  the  judge  into  an 
additional  advocate.  The  presence  of  the  judge  renders 
necessary  a  cumbrous  apparatus  for  reserving  points  of 
law  which  after  all  leaves  the  jury  in  the  position  of  being 
judges  of  the  law  to  whatever  extent  they  choose  to  act 
as  such. 

The  English  system,  formed  by  very  slow  degrees  and  with 
absolutely  no  conscious  adaptation  of  means  to  ends,  is  intrin- 
sically more  coherent  and  systematic  than  the  French  system. 
By  the  steps  which  I  have  traced  in  detail,  trial  by  jury  has 
come  to  be  in  substance  an  action  in  which  the  prosecutor  is 
plaintiff  and  the  prisoner  defendant.  The  quarrel  between 
'  See  I'affaire  Lesmer,  Vol.  III.  p.  509. 


WHICH  IS  THE  BEST?  565 

the  two  is  fought  out  before  a  tribunal  consisting  of  the  judge  Ch.  XV. 
and  the  jury.  After  hearing  all  that  is  to  be  said  on  both 
sides,  the  judge  repeats  to  the  jury  the  evidence  given  on 
each  side,  indicates  as  far  as  he  thinks  proper  his  own  view  of 
the  facts,  and  authoritatively  lays  down  the  law  for  their 
guidance.  They  ultimately  decide  the  whole  matter,  fact  and 
law,  being  guided  in  their  decision  by  the  judge's  statement 
of  the  law  but  acting  with  perfect  independence  in  their  own 
sphere.  Though  our  system  of  criminal  procedure  has  many 
defects,  and  is  extremely  ill  expressed,  it  possesses  an  internal 
organic  unity  which  seems  to  me  to  be  wanting  in  the  system 
established  by  the  Code  d' Instruction  Criminelle,  though  that , 
document  is,  speaking  generally,  arranged  with  admirable 
perspicuity,  and  on  a  coherent  systematic  plan  which  con- 
trasts very  unfavourably  for  us  with  the  mixture  of  statutes, 
decided  cases,  and  common  law  which  holds  our  code  in 
suspension. 

This  comparison  of  French  and  English  criminal  procedure 
naturally  suggests^the  question — Which  of  the  two  is  the  best  ? 
To  a  person  accustomed  to  the  English  system  and  to  English 
ways  of  thinking  and  feeling  there  can  be  no  comparison  at 
all  between  them.  However  well  fitted  it  may  be  for  France, 
the  French  system  would  be  utterly  intolerable  in  England. 
The  substitution  of  a  secret  "  instruction "  for  our  open  in- 
vestigation before  the  committing  magistrate  would  appear  to 
us  to  poison  justice  at  its  source.  An  English  judge  would 
feel  himself  degraded  if  he  were  required  or  expected  to  enter 
into  a  personal  conflict  with  the  prisoner,  and  extort  admissions 
from  him  by  an  elaborate  cross-examination.  All  our  notions 
of  dignity,  order,  and  calmness  would  be  overthrown  by  the 
prolonged  wrangle  between  the  court  and  the  prisoner 
renewed  after  every  witness  had  made  his  statement.  The 
practical  abolition  of  cross-examination  would  in  our  eyes 
deprive  the  evidence  of  the  strongest  security  for  its  truth- 
fulness and  accuracy,  and  the  admission  of  unrestricted  appeals 
to  prejudice  and  sentiment  on  the  part  of  the  counsel  on 
both  sides  in  their  addresses  to  the  jury  would  appear  to 
us  to  crown  by  feeble  sentimentality  a  proceeding  instituted 
secretly  and  carried  on  oppressively.     The  whole  temper  and 


566  COMPARATIVE   EFFICIENCY   OF   THE   TWO   SYSTEMS. 

Ch.  XV.    spirit  of  the  French  and  the  English  differs  so  widely,  that  it 
would  be  rash  for  an  Englishman  to  speak  of  trials  in  France 
as  they  actually  are.     We  can  think  of  the  system  only  as 
it  would  work  if  transplanted  into  England.     It  may  well  be 
that  it  not  only  looks,  but  is,  a  very  different  thing  in  France. 
The  only  advantage  which  could  be  ascribed  to  it  over  our 
own  system  would  be  that  of  superior  efiSciency,  and  no  doubt 
if  it  were  true  'that  it  does,  in  fact,  discriminate  guUt  from 
innocence  and  bring  the  guilty  to  justice  more  effectually  than 
our  own  system,  it  would  be  necessary  to  admit  that,  at  how- 
ever high  a  price,  its  principal  object  had  been  attained. 
But  is  this  the  case  ?     It  can  hardly  be  asserted  that  life  and 
property  are  more  secure  in  France  than  they  are  in  England, 
but  it  would  hardly  fall  within  the  province  of  this  work  to 
enter  into  a  detailed  inquiry  on  this  subject.    The  best  way  of 
comparing  the  working  of  the  two  systems  is  by  comparing 
trials  which  have  taken  place  under  them.     For  this  purpose 
I  have  given  at  the  end  of  this  work  detailed  accounts  of  seven 
celebrated    trials,   four    English    and   three   French,   which 
afford  strong  illustrations  of  the  results  of  the  two  systems. 
It  seems  to  me  that  a  comparison  between  them  shows  the 
superiority  of  the  English  system  even  more  remarkably  than 
any   general    observations    which    may    be    made    on    the 
subject.     In  every  one  of  the  English  cases  the  evidence  is 
fuller,  clearer,  and  infinitely  more  cogent  than  it  is  in  any  one 
of  the  French  cases,  notwithstanding  which,  far  less  time  was 
occupied  by  the  English  trials  than  by  the  French  ones,  and 
not   a  word  was  said  or  a  step  taken   which  any  one  can 
represent  as  cruel  or  undignified. 

Apart  from  the  comparative  merits  of  French  arid  English 
criminal  procedure,  this  appears  to  be  the  place  for  some 
observations  on  the  positive  value  of  trial  by  jury  as  prac- 
tised and  understood  in  England.  It  is  perhaps  the  most  popu- 
lar of  all  our  institutions,  and  has  certainly  been  made  the 
subject  of  a  kind  and  degree  of  eulogy  which  no  institution  can , 
possibly  deserve.  All  exaggeration  apait,  what  is  its  true  value  ? 

It  may  be  regarded  in  several  different  lights. 

The  first  question  is.  Are  juries  just  ?     The  second.  Are 
they  intelligent  enough  for  the  duties  they  have  to  perform  ? 


TRIALS  BY  JURY  IN  ENGLAND.  567 

The  third,  What  are  the  collateral  advantages  of  the  institu-    Ch.  XV. 

tion  ?      Upon   each  of  these  points  it  is  necessary  to  com- 

pare  juries  to  judges  sitting  without  juries,  for  the  choice  lies 

between  these  two  tribunals.     Our  experience  of  trials  by 

judges  without  juries,  in  criminal  as  well  as  in  civil  cases,  has 

in  the  last  two  generations  become  very  extensive.     Tn  the 

first  place,  the  judges  of  the  Chancery  Division  of  the  High 

Court  are  continually  called  upon  to  determine  questions  of 

fact  which  in  many  instances  are  exactly  like  those  which 

are  determined  in  criminal  cases ;  as,  for  instance,  where  fraud 

is  alleged  as  a  ground  for  setting  a  transaction  aside.     The 

same  is  true  of  the  county  court  judges  and  of  the  courts 

of    summary  jurisdiction,  which  have   extensive   powers   of 

fine  and  imprisonment.     Applications  to  the  judges  of  the 

Queen's  Bench  Division  sometimes  involve  the  determination 

of  similar  questions.     I  have,  for  instance,  known  a  case  in 

which  the  decision  of  the  question  whether  a  father  should 

be    deprived   of  the   custody   of  his   child   depended   upon 

the   question    whether  he    had  committed   a  crime,   which 

question  was  tried  and  determined  by  a  judge  without  a  jury. 

The  trial   of  civil  cases  without  juries  has  also  become  a 

matter  of  everyday  occurrence.      Finally,  in  British   India, 

trial  by  a  judge  alone  is  in  all  criminal  cases  the  rule,  and 

trial  by  jury  the  rare  exception. 

There  is  a  considerable  difference  in  the  manner  in  which 
cases  are  tried  by  judges  sitting  alone.  In  cases  tried  without 
a  jury  by  a  judge  of  the  High  Court,  notes  are  taken  just  as 
if  the  case  was  tried  by  a  jury ;  and  in  the  case  of  an  appeal, 
they  are  forwarded  to  the  Court  of  Appeal  for  their  informa- 
tion. If  serious  criminal  cases  were  to  be  tried  by  judges 
without  juries,  I  think  that  notes  should  be  taken  both  by 
the  judge  and,  in  capital  cases,  by  a  shorthand  writer  as  well ; 
and  I  think  the  judge  should  give  his  reasons  for  his  decision, 
and  that  if  he  did  not  give  them  in  writitig  they  should  be 
taken  down  by  a  shorthand  writer,  and  read  and  corrected  by 
the  judge.  In  such  cases  I  think  there  should  be  an  appeal 
both  on  the  law  and  on  the  facts  to  the  Court  for  Crown  Cases 
Reserved,  or  whatever  court  might  be  substituted  for  it. 
In  comparing  trial  by  jury  with  trial  by  a  judge  without  a 


5^8  TRIALS   BY   JUDGE   WITHOUT   JURY. 

Ch.  XV.    jury,  I   assume  the   establishment  of  such   a  form  of  trial 
as  this. 

First,  then,  as  to  the  comparative  justice  to  be  expected  of 
trials  by  jury  and  trials  by  a  judge  without  a  jury.  Trial  by 
a  judge  without  a  jury  may,  I  think,  be  made,  practically 
speaking,  completely  just  in  almost  every  case.  At  aU  events, 
the  securities  which  can  be  taken  for  justice  in  the  case 
of  a  trial  by  a  judge  without  a  jury  are  infinitely  greater 
than  those  which  can  be  taken  for  trial  by  a  judge  and 
jury. 

1.  The  judge  is  one  known  man,  holding  a  conspicuous 
position  before  the  public,  and  open  to  censure  and,  in  extreme 
cases,  to  punishment  if  he  does  wrong :  the  jury  are  twelve 
unknown  men.  Whilst  the  trial  is  proceeding  they  form  a 
group  just  large  enough  to  destroy  even  the  appearance  of 
individual  responsibility.  When  the  trial  is  over  they  sink 
back  into  the  crowd  from  whence  they  came,  and  cannot  be 
distinguished  from  it.  The  most  unjust  verdict  throws  no 
discredit  on  any  person  who  joined  in  it,  for  as  soon  as  it  is 
pronounced  he  returns  to  obscurity. 

2.  Juries  give  no  reasons,  but  judges  do  in  some  cases, 
and  ought  to  be  made  to  do  so  formally  in  all  cases  if  juries 
were  dispensed  with.  This  in  itself  is  a  security  of  the 
highest  value  for  the  justice  of  a  decision.  An  unskilled 
person  may  no  doubt  give  bad  reasons  for  a  sound  conclusion, 
but  it  is  nearly  impossible  for  the  most  highly  skilled  person 
to  give  good  reasons  for  a  bad  conclusion ;  and  the  attempt 
to  do  so  would  imply  a  determination  to  be  unjust  which 
would  be  most  uncommon. 

3.  From  the  nature  of  the  case  there  can  be  no  appeal  in 
cases  of  trial  by  jury,  though  there  may  be  a  new  trial. 
There  can  be  an  appeal  where  the  trial  is  by  a  single  judge. 

This  may  not,  at  first  sight,  be  obvious,  but  it  is  a  conse- 
quence of  the  circumstance  that  a  jury  cannot  give  their 
reasons.  An  appeal,  properly  so  called,  implies  a  judgment 
on  ^the  part  of  the  court  appealed  from  and  an  argument  to 
show  that  it  decided  wrongly,  which  cannot  be  unless  the 
reasons  of  the  decision  are  known.  If  an  appeal  proper  lay 
from  the  decision  of  a  jury,  and  if  it  took  the  form  of  a 


TRIALS   BY  JUDGE  AND  JURY.  569 

rehearing  before  a  court  of  judges,  trial  by  jury  might  as  well    Ch.  XV. 
be  abolished.  

4.  Experience  has  proved  that  the  decisions  of  single  judges 
are  usually  recognised  as  just.  There  are  very  few  complaints 
of  the  decisions  either  of  magistrates  or  of  county  court 
judges  on  the  ground  of  injustice.  I  never  heard  of  a  com- 
plaint of  injustice  in  a  trial  by  a  judge  of  the  High  Court 
without  a  jury.  Arbitrations,  in  which  the  arbitrator  gives  no 
reasons  and  is  subject  to  no  appeal,  are  not  only  common 
but  are  on  the  increase.  This  would  scarcely  be  the  case 
if  confidence  were  not  felt  in  the  justice  of  arbitrators. 

As  to  juries,  experience  no  doubt  has  shown,  and  does  con- 
tinually show,  that  their  verdicts  also  are  just  in  the  very 
great  majority  of  instances,  but  I  am  bound  to  say  I  think 
that  the  exceptions  are  more  numerous  than  in  the  case  of 
trials  by  judges  without  juries. 

In  cases  of  strong  prejudice  juries  are  frequently  unjust, 
and  are  capable  of  erring  on  the  side  either  of  undue  con- 
victions or  of  undue  acquittals.  They  are  also  capable  of 
being  intimidated,  as  the  experience  of  Ireland  has  abun- 
dantly shown.  Intimidation  has  never  been  systematically 
practised  in  England  in  modern  times,  but  I  believe  it  would 
be  just  as  easy  and  just  as  effective  here  as  it  has  been 
shown  to  be  in  Ireland.  Under  the  Plantagenets,  and 
down  to  the  establishment  of  the  Court  of  Star  Chamber, 
trial  by  jury  was  so  weak  in  England  as  to  cause  something 
like  a  general  paralysis  of  the  administration  of  justice. 
Under  Charles  II.  it  was  a  blind  and  cruel  system.  During 
part  of  the  reign  of  George  III.  it  was,  to  say  the  least,  quite 
as  severe  as  the  severest  judge  without  a  jury  could  have 
been.  The  revolutionary  tribunal  during  the  Eeign  of  Terror 
tried  by  a  jury. 

There  are  no  doubt  some  things  to  be  set  against  this.  It 
is  often  said  in  delicate  terms  that  some  degree  of  injustice 
is  a  good  thing.  The  phrases  in  which  this  sentiment  is 
conveyed  are  to  the  effect  that  it  may  sometimes  be  desirable 
that  the  strict  execution  of  the  law  should  be  mitigated  by 
popular  sentiment,  of  which  juries  are  considered  to  be  the 
representatives.     Whether  it  is  a  greater  evil  that  a  bad  law 


570  HISTORICAL   VALUJE   OF   TRIAL   BY  JURY. 

Ch.  XV.  should  be  executed  strictly  or  capriciously  is  perhaps  disputable, 
but  it  admits  of  no  doubt  that  laws  unfit  to  be  strictly  executed 
ought  to  be  repealed  or  modified.  Parts  of  the  criminal  law 
were  no  doubt  formerly  cruel  and  otherwise  objectionable.  I 
can  understand,  though  I  do  not  share,  the  sentiment  which 
admires  juries  who  perjured  themselves  by  affirming  a  five- 
pound  note  to  be  worth  less  than  forty  shillings  in  order  to 
avoid  a  capital  conviction,  or  who  refused  to  give  effect  to  the 
old  law  of  libel ;  but  these  are  things  of  the  past.  I  know  of 
no  part  of  our  existing  law  which  requires  to  be  put  in  force 
capriciously.  I  see,  for  instance,  no  advantage  in  acquittals 
in  the  face  of  clear  evidence  for  bribery,  or  for  sending  ships 
to  sea  in  a  dangerous  condition,  or  for  libels  on  private 
persons  who  happen  to  be  disreputable  and  unpopular,  or 
for  frauds  committed  upon  money-lenders,  or  for  crimes 
committed  by  pretty  women  under  affecting  circumstances. 

The  cases  commonly  referred  to  as  those  which  reflect 
the  highest  honour  upon  juries  are — the  trial  of  the  seven 
bishops  in  1688,  the  trials  for  libel  in  the  last  century, 
and  the  trials  for  treason  in  1794.  As  to  the  trial  of  the 
seven  bishops,  their  acquittal  was,  no  doubt,  right ;  but  their 
conviction  would  have  done  no  great  harm,  it  would  have 
merely  hastened  the  Revolution,  and  given  them  a  little 
martyrdom.  Besides,  if  they  had  been  tried  by  the  presiding 
judges,  they  could  not  have  been  convicted,  for  the  judges 
were  two  to  two.  In  the  case  of  libel,  I  think  there  can  be  no 
doubt  that  the  alteration  of  a  bad  law  was  to  some  extent 
caused  by  the  unwillingness  of  juries  to  enforce  it,  though  (as 
will  appear  in  a  subsequent  chapter)  they  were  extremely 
capricious  in  their  verdicts,  and  though  the  amendment  of  the 
law  was  due,  after  all,  rather  to  Parliament  than  to  the  juries. 
In  the  case  of  the  trials  for  treason  in  1794,  the  case  turned, 
not  upon  the  law,  but  upon  the  evidence.  I  do  not  think  that 
the  prisoners  would  have  been  convicted  if  they  had  been  tried 
by  a  judge  without  a  jury.  ^  Chief  Justice  Eyre's  summing 
up  was  scrupulously  fair,  and  cannot  be  said  to  have  been  cal- 
culated to  procure  a  conviction.     Even  ^  Lord  Eldon,  not  long 

^  24  State  Trials,  p.  1293  et  seq. 

^  Campbell's  Lives  of  iTie  Chancellors,  Ix.  p.  197. 


COMPARATIVE   INTELLIGENCE   OF   JUDGES   AND   JURORS.  571 

after  the  trial,  said  "  the  evidence  was,  in  his  opinion,  so  nicely    Ch.  xv. 

"  balanced,  that  had  he  himself  been  on  the  jury  he  did  not       

"  know  what  verdict  he  should  have  given."  If  so,  he  must 
have  given  the  prisoners  the  benefit  of  the  doubt.  I  shall 
refer  more  particularly  to  these  matters  elsewhere.  It  is 
sufficient  for  the  present  purpose  to  observe  that  I  think 
that  as  a  matter  of  history  trial  by  jury  has  been  less  of 
a  bulwark  against  oppressive  punishments  than  many  of 
the  popular  commonplaces  about  it  imply. 

The  next  point  to  consider  is  the  comparative  wisdom  or 
intelligence  of  judges  and  juries.     I  think  that  a  judge  ought 
to  be,  and  that  he  usually  is,  a  man  of  far  greater  intelligence, 
better  education,  and  more  force  of    mind,  than  any   indi- 
vidual member  of  the  juries  which  he  has  to  charge,  but  it 
must  be  remembered  that  there  is  a  great  difference  between 
jury  and  jury.     The  force  and  effect  of  evidence  can  hardly 
be  tested  better  than  by  the  impression  which  it  makes  on 
a  group  of  persons  large  enough  to  secure  its  being  looked 
at    from    many   different  points  of   view  and  by  people  of 
different  habits  of  mind.      But  this  advantage  is  obtained 
only  when  all  the  jurors  listen  to  the  whole  of  the  evidence ; 
and  it  continually  happens  that  several  of  them  are  half  asleep, 
or  listen  mechanically,  or  think  about  something  else,  and 
that  when  the  verdict  is  considered  they  follow  the  lead  of 
any  member   of  the  jury   who   chooses  to    take   the   lead. 
Again,  as  to  experience,  it   is   very  unlikely  that  any  judge 
should  have  greater  experience  of  the  kind  required  upon 
a  criminal  trial  than  all  the  twelve  men  in  the  jury-box  put 
together,  unless  indeed  they  are  unusually  stupid.     A  really 
good    special  jury    will   usually  consist    of,    or   as   a   rule 
contain,    men    in    every    respect    as    competent    to   judge 
of  the  effect  of  evidence  as  any  judge,  and  the  probability 
that  they  or  some  of  them  will  possess  experience  bearing  on 
the  case  which  has  not  come  in  the  judge's  way  is  consider- 
able.    I   think   that  as  far  as  skill  and  intelligence   go  it 
would  be  impossible  to  have  a  stronger  tribunal  than  a  jury 
of  educated  gentlemen  presided  over  by  a  competent  judge. 
I  cannot,  however,  say  much  for  the  intelligence  of  small 
shopkeepers  and  petty  farmers,  and  whatever  the  fashion  of 


572  QUALIFICATIONS   OF  JXTROES. 

Ch.  XV.    the  times  may  say  to  the  contrary,  I  think  that  the  great 
bulk  of  the  working  classes  are  altogether  unfit  to  discharge 
judicial  duties,  nor  do  I  believe  that,  rare  exceptions  excepted, 
a  man  who  has  to  work  hard  all  day  long  at  a  mechanical 
trade  will  ever  have  either  the  memory,  or  the  mental  power, 
or  the  habits  of  thought,  necessary  to  retain,  analyse,  and 
arrange  in  his  mind  the  evidence  of,  say,  twenty  witnesses  to 
a  number  of  minute  facts  given  perhaps  on  two  different 
days.     Jurors  almost  never  take  notes,  and  most  of  them 
would  only  confuse  themselves  by  any  attempt  to  do  so,  and 
I  strongly  suspect  that  a  large  proportion  of  them  would,  if 
examined    openly  at  the  end  of  a  trial  as  to  the  different 
matters  which  they  had  heard  in  the  course  of  it,  be  found 
to  be  in  a  state  of  hopeless  confusion  and  bewilderment.     I 
should  be  far  from  saying  this  of  good  special  juries,  but  I 
think  that  the  habit  of  flattering  and  encouraging  the  poor, 
and  asserting  that  they  are  just  as  sensible  and  capable  of 
performing  judicial  and  political  functions  as  those  who  from 
their  infancy  have  had  the  advantages  of  leisure,  education, 
and  wealth,  has  led  to  views  as  to  the  persons  qualified  to 
be  jurors  which  may  be  very  mischievous.     I  think  that,  in 
all  criminal  cases  of  any  considerable  difiiculty  or  importance, 
there  ought  to  be  at  least  a  power  to  summon  special  juries. 
In  short,  I  think  a  good  judge  and  a  good  special  jury  form 
as  strong  a  tribunal  as  can  be  had,  but  I  think  a  judge  with- 
out a  jury  would  be  a  stronger  tribunal  than  a  judge  and  an 
average  common  jury. 

There  is  a  third  point  of  view  from  which  trial  by  jury 
must  be  considered,  namely,  its  collateral  advantages,  and 
these,  I  think,  are  not  only  incontestable  in  themselves,  but 
are  of  such  importance  that  I  should  be  sorry  to  see  any 
considerable  change  in  the  system,  though  I  am  alive  to  its 
defects.     They  are  these  : — 

In  the  first  place,  though  I  do  not  think  that  trial  by  jury 
really  is  more  just  than  trial  by  a  judge  without  a  jury  would 
be,  it  is  generally  considered  to  be  so,  and  not  unnaturally. 
Though  the  judges  are,  and  are  known  to  be,  independent  of 
the  executive  Government,  it  is  naturally  felt  that  their 
sympathies  are  likely  to  be  on  the  side  of  authority.     The 


COLLATERAL   ADVANTAGES   OP   TRIAL   BY   JURY.  573 

public  at  large  feel  more  sympathy  with  jurymen  than  they    Ch.  XV. 
do  with  judges,  and   accept   their  verdicts  with  much   less 
hesitation    and    distrust    than    they    would    feel    towards 
judgments  however  ably  written  or  expressed. 

In  the  next  place,  trial  by  jury  interests  large  numbers  of 
people  in  the  administration  of  justice  and  makes  them 
responsible  for  it.  It  is  difficult  to  over-estimate  the  import- 
ance of  this.  It  gives  a  degree  of  power  and  of  popularity 
to  the  administration  of  justice  which  could  hardly  be  derived 
from  any  other  source. 

Lastly,  though  I  am,  as  every  judge  must  be,  a  prejudiced 
witness  on  the  subject,  I  think  that  the  position  in  which 
trial  by  jury  places  the  judge  is  one  in  which  such  powers  as 
he  possesses   can  be   most   effectually   used  for  the  public 
service.     It  is  hardly   necessary   to   say  that  to  judges  in 
general  the  maintenance  of  trial  by  jury  is  of  more  import- 
ance than  to   any  other  members   of    the   community.     It 
saves  judges  from  the  responsibility — which  to   many  men 
would  appear  intolerably  heavy    and    painful — of  deciding 
simply  on  their  own  opinion  upon  the  guilt  or  innocence  of  the 
prisoner.      If  a  judge  sums  up  for  a  conviction  and  the  jury 
convicts,  they  share  the  responsibility  with  him  and  confirm 
his  views  by  their  verdict ;  and  the  same  may  be  said  if  they 
foUow  his  suggestion  in  acquitting.     If  they  acquit  when  he 
suggests  a  conviction,  he  is  spared  from  what  is   always  a 
painful  task — that  of  determining  on  the  sentence  to  be  passed. 
If  they  convict  when  he  suggests  an  acquittal,  he  can,  if  he  is 
decidedly  of  opinion  that  the  prisoner  is  innocent,  in  practi- 
cally aU  cases,  procure  a  pardon ;  I  think  he  ought  to  have  a 
legal  right  to  direct  a  new  trial.     On  the  other  hand,  he  may 
not  unfrequently  feel  that  the  jury  have  done  substantial 
justice  in  overlooking  some  deficiency  or  weakness  in  the 
legal  proof  of  the  case  which  had  occurred  to  his  mind,  and 
in  this  case  the  result  is  that,  without  any  default  on  his  part, 
acriminal  meets  his  deserts,  although  the  proof  against  him  may 
not  quite  come  up  to  the  legal  standard.     I  remember  a  case 
many  years  ago  in  which  a  surgeon  was  convicted  of  man- 
slaughter fox  causing  the  death  of  a  woman  in  delivering  her 
of  a  child.     The  judge  (the  late  Baron  Alderson)  summed  up 


574  TKIAL   BY   JURY   AGREEABLE   TO   JUDGES. 

Ch.  XV.  strongly  for  an  acquittal,  remarking  on  the  slightness  of  the 
evidence  that  the  man  was  drunk  at  the  time  ;  but  the  jury- 
convicted  him,  well  knowing  that  he  was  a  notorious  and 
habitual  drunkard. 

For  these  reasons,  the  institution  of  trial  by  jury  is  so  very 
pleasant  to  judges  that  they  may  probably  be  prejudiced  in 
its  favour.  I  think,  however,  that  the  institution  does  place 
the  judge  in  the  position  in  which,  with  a  view  to  the  public 
interest,  he  ought  to  be  placed — that  of  a  guide  and  adviser 
to  those  who  are  ultimately  to  decide,  and  a  moderator  in 
the  struggle  on  the  result  of  which  they  are  to  give  their 
decision.  The  interposition  of  a  man,  whose  duty  it  is  to 
do  equal  justice  to  all,  between  the  actual  combatants  and 
the  actual  judges  of  the  result  of  the  combat,  gives  to  the 
whole  proceedings  the  air  of  gravity,  dignity,  and  humanity, 
which  ought  to  be,  and  usually  is,  characteristic  of  an 
English  court,  and  which  ought  to  make  every  such  court 
a  school  of  truth,  justice,  and  virtue.  In  short,  if  trial  by 
jury  is  looked  at  from  the  political  and  moral  point  of  view, 
everything  is  to  be  said  in  its  favour,  and  nothing  can  be  said 
against  it.  Whatever  defects  it  may  have  might  be  effectu- 
ally removed  by  having  more  highly  qualified  jurors.  I  think 
that  to  be  on  the  jury  list  ought  to  be  regarded  as  an  honour 
and  distinction.  It  is  an  office  at  least  as  important  as,  say,  that 
of  guardians  of  the  poor,  and  I  think  that  if  arrangements 
were  made  for  the  comfort  of  jurors,  and  for  the  payment  of 
their  expenses  when  on  duty,  men  of  standing  and  consideration 
might  be  willing  and  even  desirous  to  fill  the  position. 

There  is  one  further  question  connected  with  trial  by  jury 
on  which  a  few  words  may  be  said.  This  is  the  question : — 
Which  is  right — the  present  system  according  to  which  skilled 
witnesses  are  called  by  each  side  at  the  discretion  of  the  parties 
and  are  examined  and  cross-examined  like  other  witnesses,  or  a 
proposed  system  according  to  which  such  witnesses  should  be 
appointed  by  the  court  and  occupy  a  position  more  or  less 
resembling  that  of  assessors  ?  The  matter  has  been  often  dis- 
cussed, especially  by  medical  men.  I  have  the  strongest 
possible  opinion  in  favour  of  the  maintenance  of  the  present 
system  for  the  following  reasons. 


EVIDENCE   OF   EXPERTS.  575 

Our  present  system  provides  a  definite  place  and  definite  Ch.  XV. 
rights  and  duties  for  the  parties,  the  judge,  the  jury,  and  the 
witnesses.  What  room  there  is  for  any  other  person  in  the 
proceedings  I  do  not  see.  It  is  impossible  to  say  what  an 
expert  is  to  be  if  he  is  not  to  be  a  witness  Hke  other  wit- 
nesses. If  he  is  to  decide  upon  medical  or  other  scientific 
questions  connected  with  the  case  so  as  to  bind  either  the 
judge  or  the  jury,  the  inevitable  result  is  a  divided  respon- 
sibility which  would  destroy  the  whole  value  of  the  trial. 
If  the  expert  is  to  tell  the  jury  what  is  the  law — say  about 
madness — ^he  supersedes  the  judge.  If  he  is  to  decide 
whether,  in  fact,  the  prisoner  is  mad,  he  supersedes  the  jury. 
If  he  is  only  to  advise  the  court,  is  he  or  is  he  not  to  do  so 
publicly  and  to  be  liable  to  cross-examination  ?  If  yes,  he  is  a 
witness  Hke  any  other.  If  no,  he  will  be  placed  in  a  position 
opposed  to  all  principle.  The  judge  and  the  jury  alike  are, 
and  ought  to  be,  instructed  only  by  witnesses  publicly  testi- 
fying in  open  court  on  oath.  It  never  would  be,  and  never 
ought  to  be,  endured  for  a  moment  that  a  judge  should  have 
irresponsible  advisers  protected  against  cross-examination. 
Again,  suppose  that  some  arrangement  or  other  as  to  experts 
were  devised  by  which  they  were  to  be  not  quite  witnesses 
but  something  rather  like  it,  what  rule  is  to  be  laid  down  as 
to  witnesses  ?  Are  the  prisoner  and  the  Crown  to  be  allowed 
or  to  be  forbidden  to  call  them  as  at  present  ?  To  forbid  a 
prisoner  to  call  a  witness  to  say  that  in  his  opinion  the 
symptoms  of  a  given  death  were  not  those  of  poisoning 
would  be  an  intolerable  denial  of  justice ;  but  if  such  wit- 
nesses are  called,  what  becomes  of  the  experts  ?  When  the 
jury  have  heard  sworn  witnesses,  examined  and  cross-ex- 
amined for  the  parties,  what  will  they  care,  or  what  ought 
they  to  care,  for  the  opinion  of  experts  appointed  by  the 
Crown?  Counsel  would  say  with  perfect  truth.  Listen  to 
sworn  testimony  tested  by  cross-examination ;  what  have  you 
to  do  with  people  whose  evidence,  if  evidence  it  is  to  be 
called,  you  are  not  allowed  to  test  ? 

The  truth  is,  that  the  demand  for  experts  is  simply  a 
protest  made  by  medical  men  against  cross-examination. 
They  are  not  accustomed  to  it  and  they  do  not  like  it,  but  I 


576  EXPERTS   AND   ASSESSORS. 

Ch.  XV.  should  say  that  no  class  of  witnesses  ought  to  be  so  carefully 
watched  and  so  strictly  cross-examined.  There  is  one  way  in 
which  medical  men  may  altogether  avoid  the  inconveniences  of 
which  they  complain,  and  that  is  by  knowing  their  business 
and  giving  their  testimony  with  absolute  candour  and  frank- 
ness. There  have  been,  no  doubt,  and  there  still  occasionally 
are,  scenes  between  medical  witnesses  and  the  counsel  who 
cross-examine  them  which  are  not  creditable,  but  the  reason 
is  that  medical  witnesses  in  such  cases  are  not  really  wit- 
nesses but  counsel  in  disguise,  who  have  come  to  support  the 
side  by  which  they  are  called.  The  practice  is,  happily,  rarer 
than  it  used  to  be ;  but  when  it  occurs  it  can  be  met  and 
exposed  only  by  the  most  searching,  and  no  doubt  unpleasant, 
questioning.  By  proper  means  it  may  be  whoUy  avoided. 
If  medical  men  laid  down  for  themselves  a  positive  rule  that 
they  would  not  give  evidence  unless  before  doing  so  they  met  in 
consultation  the  medical  men  to  be  called  on  the  other  side 
and  exchanged  their  views  fuUy,  so  that  the  medical  witnesses 
on  the  one  sid«  might  know  what  was  to  be  said  by  the  medical 
witnesses  on  the  other,  they  would  be  able  to  give  a  full  and 
impartial  account  of  the  case  which  would  not  provoke  cross- 
examination.  For  many  years  this  course  has  been  invariably 
pursued  by  all  the  most  eminent  physicians  and  surgeons  in 
Leeds,  and  the  result  is  that  in  trials  at  Leeds  (where  actions 
for  injuries  in  railway  accidents  and  the  like  are  very  com- 
mon) the  medical  witnesses  are  hardly  ever  cross-examined  at 
all,  ^and  it  is  by  no  means  uncommon  for  them  to  be  called  on 
one  side  only.  Such  a  practice  of  course  implies  a  high 
standard  of  honour  and  professional  knowledge  on  the  part 
of  the  witnesses  employed  to  give  evidence,  but  this  is  a 
matter  for  medical  men.  If  they  steadily  refuse  to  act  as 
counsel,  and  insist  on  knowing  what  is  to  be  said  on  both 
sides  before  they  testify,  they  need  not  fear  cross-examination. 


END  OF  VOL.   I. 


K.   CLAY,   S0K5,   AND  TAYLOR,   P|HNTI3R.S.