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tion to be tried at all. And therefore it dealt with one who peremptorily challenges above thirty-five, and will not retract his challenge, as with one who stands mute or refuses his trial ; by sentencing him to the peine forte et dure in felony, and by attainting him in treason (r). And so the law stands at this day with regard to treason of any kind.

But by statute 22 Hen. VIII. c. 14. (which, with regard to felonies, stands unrepealed by statute 1 & 2 Ph. & Mar. c. 10.) by this statute, I say, no person arraigned for felony, can be admitted to make any more than twenty peremptory challenges. But how if the prisoner will peremptorily challenge twenty-one, what shall be done? The old opinion was, that judgment of peine forte et dure should be given, as where he challenged thirty-six at the common law (s): but the better opinion seems to be (1), that such challenge shall only be disregarded and overruled. Because, first, the common law doth not inflict the judgment of penance for challenging twenty-one, neither doth the statute inflict it; and so heavy a judgment (or that of conviction, which succeeds it) shall not be imposed by implication. Secondly, the words of the statute are," that he be not admitted to challenge more than twenty ;" the evident construction of which is, that

any farther challenge shall be disallowed or prevented : and therefore being null from the beginning, and never in fact a challenge, it can şubject the prisoner to no punishment ; but the juror shall be regularly sworn (20).

If, by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales *may be [*355) awarded as in civil causes (u), till the number of twelve is sworn, “ well and truly to try, and true deliverance make, between our sovereign lord the king, and the prisoner whom they have in charge ; and a true verdict to give, according to their evidence."

When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshalled, examined, and enforced by the counsel for the crown, or prosecution. But it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law shali arise proper to be debated (w) (21). A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner ; that is, shall see that the proceedings against him are legal and strictly regular) (c) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the lise of a man, which yet is allowed him in prosecutions for every petty trespass ? Nor indeed is it strictly speaking a part of our ancient law : for the mirrour (y), having observed the necessity of counsel in civil suits, “ who know how to forward and defend the cause, by the rules of law and customs of the realm,” immediately afterwards

(2) Sir Edward Coke (3 Inst. 137.) gives another additional reason for this refusal, “because the evi

dence to convict a prisoner should be so manifest, (u) See Book III. page 364.

as it could not be contradicted.” Which, Lord Notmissions of gaol delivery, no tales can be awarded ; tingham (when high steward) declared, (3 St. Tr. though the court may ore tenus order a new panel 726.) was the only good reason that could be given to be returned instanter. (4 Inst. 68. 4 St. Tr. 728. for it. Cooke's Case.)

(y) c. 3, (1. (6) 2 Hawk. P. C. 400. (20) See note (+) p. 352 ante, and id. note p

(21) Counsel are allowed in all cases in 11.

New-York. (2 R. S. 165, 1 R. S. 93.)

(r) 2 Hal. P. C. 268.
(8) 2 Hawk. P. C. 414.
(t) 3 Inst. 227. 2 Hal. P. C. 270.

But in mere com

subjoins ; "and more necessary are they for defence upon indictments and appeals of felony, than upon other venial causes (z) (22).” And the judges themselves are so sensible of this defect, that they never scruple to allow a

prisoner counsel to instruct him what questions to ask, or even to [*356] *ask questions for him, with respect to matters of fact: for as to

matters of law, arising on the trial, they are entitled to the assistance of counsel. But, lest this indulgence should be intercepted by superior influence, in the case of state-criminals, the legislature has directed by statute 7 W. III. c. 3. that persons indicted for such high treason, as works a corruption of the blood, or misprision thereof (except treason in counterfeiting the king's coin or seals), may make their full defence by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge : and the same indulgence, by statute 20 Geo. II. c. 30, is extended to parliamentary impeachments for high treason, which were excepted in the former act (23) (24).

(z) Father Parsons the jesuit, and after him bish. not allowable in any criminal prosecution. This will op Ellys, (of English liberty, ií. 66.) have imagin. be manifest by comparing this law with a contempoed, that the benefit of counsel to plead for them was rary passage in the grand coustumier or Normandy, first denied to prisoners by a law of Ilen. I. ineaning (ch. 85.) which speaks of impariances in personai (I presume) chapters 47 and 48 of the code which

Apres ce, est tenu le querelle a respondre; is usually attributed to that prince. De causis cri- et cura congre de soy conseiller, s'il le demande ; et minalibus vel capitalibus nemo quaerat consilium: quand il sera conseille, il peut nyer le facit dont il quin implacitatus statim perneget, sine omni petitione est accuse." Or, as it stands in the Lat. text, (edit consilii.- In aliis omnibus potest et debet uti consi. 1539,) “ Querelatus autem postes tenetur responde ho."-But this consilium, I conceive, signifies only re; et habebit licentiam consvicndi, si requirat ; $can imparlance, and the petitio consili is craving oito autem consilio, debet factum negare quo accusetus Leave to impari ; (See Book III. page 296.) which is



(22) The prisoner is not allowed counsel to ance of counsel. Fost. 232. 42. plead his cause before the jury in any felony, It is very extraordinary that the law of Eng. whether it is capital, or within the benefit of land should have denied the assistance of clergy; nor in a case of petty larceny. But counsel, when it is wanted most, viz. to de. in misdemeanors the prisoner or defendant is fend the life, the honour, and all the property allowed counsel as in civil actions, but even of an individual. It is the extension of that bere the defendant cannot have the assistance maxim of natural equity, that every one shall of counsel to examine the witnesses, and re- be heard in his own cause, that warrants the serve to himself the right of addressing the jury. admission of hired advocates in courts of jus. 1 Ry. & M. C. C. 166. 3 Camp. 98. tice; for there is much greater inequality in

The maxim that the judge is counsel for the powers of explanation and persuasion in the prisoner, signified nothing more than that the natural state of the human mind, than the judge shall take care that the prisoner when it is improved by education and experidoes not suffer from the want of counsel. The ence. Amongst professional men of estajudge is counsel only for public justice, and to blished character, the difference in their skill promote that object alone all his inquiries and and management is generally so inconsider. attention ought to be directed. Upon a trial able, that the decision of the cause depends for the murder of a male child, the counsel for only upon the superiority of the justice in the the prosecution corcluded his case without respective cases of the litigating parties. asking the sex of the child, and the judge would Hence the practice of an advocate is absonot permit him afterwards to call a witness to lutely necessary to the administration of subprove it, but, in consequence of the omission, stantial justice. An honourable barrister will he directed the jury to acquit the prisoner. never mis-state either law or facts within his But to the honour of that judge, it ought to be own knowledge, but he is justified in urging stated, that he declared afterwards in private any argument, whatever may be his own opi: his regret for his conduct. This case is well nion of the solidity or justness of it, which remembered, but it ought never to be cited but he may think will promote the interests of his with reprobation.

client ; for reasoning in courts of justice and (23) And see further as to the allowance in the ordinary affairs of life seldom admits and assigning of counsel, 1 Chit. C. L. 2 ed. of geometrical demonstration; but it happens 407 to 411. Upon the trial of issues which do not unfrequently that the same argument, not turn upon the question of guilty or noi which appears sophistry to one, is sound logic guilty, but upon collateral facts, prisoners in the mind of another, and every day's exunder a capital charge, whether for treason or perience proves that the opinions of a judge felony, always were entitled to the full assist- and an advocate are often diametrically oppo

(24) The law restricting the aid of counsel as is believed, much to the benefit of the comon indictments still prevails in England. It munity, and without the evils apprehended in has generally been repealed in the V. S., and, England.

The doctrine of evidence upon pleas of the crown, is, in most respects, the same as that upon civil actions. There are however a few leading points, wherein, by several statutes, and resolutions, a difference is made between civil and criminal evidence.

First, in all cases of high treason, petit treason, and misprision of treason, by statutes 1 Edw. VI. c. 12. and 5 and 6 Edw. 6. c. il. two lawful witnesses are required to convict a prisoner ; unless he shall willingly and without violence confess the same (25). By statute 1 & 2 Ph. & Mar. c. 10. a farther exception is made to treasons in counterfeiting the king's seals or signatures, and treasons concerning coin current within this realm: and more particularly by c. 11. the offences of importing counterfeit foreign money current in this kingdom, and impairing, counterfeiting, or forging any current coin. The statutes 8 & 9 W. III. c. 25, and 15 & '16 Geo. II. c. 28. in their subsequent extensions of this species [*357] of treason, do also provide, that the offenders may be indicted, arraigned, tried, convicted, and attainted, by the like evidence, and in such manner and form as may be had and used against offenders for counterfeiting the king's money. But by statute 7 W. III. c. 3. in prosecutions for those treasons to which that act extends, the same rule (of requiring two witnesses) is again enforced ; with this addition, that the confession of the prisoner, which shall countervail the necessity of such proof, must be in open court. In the construction of which act it hath been holden (a), that a confession of the prisoner, taken out of court, before a magistrate or person having competent authority to take it, and proved by two witnesses, is sufficient to convict him of treason. But hasty unguarded confessions, made to persons having no such authority, ought not to be admitted as evidence under this statute. And indeed, even in cases of felony at the common law, they are the weakest and most suspicious of all testimony ; over liable to be obtained by artifice, false hopes, promises of favour, or menaces ;

(a) Fost. 240-244.


site. Many circunstances may occur, which Hence, in all criminal prosecutions, especially will justisy or compel an individual member where the prisoner can have no counsel to of the profession io refuse the defence of a plead for him, a barrister is as much bound particular client, but a cause can hardly be to disclose all those circumstances to the jury, conceived which ought to be rejected by all and to reason upon them as fully, which are the bar; for such a conduct in the profession favourable to the prisoner, as those which are would excite so strong a prejudice against the likely to support the prosecution. party, as lo render him in a great degree con- When this note was written, the editor (Mr. demned before his trial. Let the circumstan- Christian) observes, that he was not aware ces against a prisoner be ever so atrocious, it that the general observations contained in it is still the duty of the advocate to sec that his were sanctioned by so great authorities as client is convicted according to those rules Cicero and Panatius. Cicero makes the disand forms, which the wisdom of the legisla. tinction that it is the duty of the judge to ture has established as the best protection of pursue the truth; but it is permitted to an the liberty and the security of the subject. advocate to urge what has only the semblance But the conduct of counsel in the prosecution of it. He says he would not have ventured of criminals, ought to be very different from himself to have advanced this (especially when that which is required from them in civil ac. he was writing upon philosophy), if it had not tions, or when they are engaged on the side also been the opinion of the gravest of the of a prisoner; in the latter cases they are the stoics, Panætius. “ Judicis est semper in advocates of their client only, and speak but causis verum sequi; patroni nonnunquam veby his instruction and permission; in the for- risimile, etiam si minus sit verum, defendere : mer they are the advocates of public justice, quod scribere (præsertim cum de philosophia or, to speak more professionally, they are the scriberem) non auderem, nisi idem placeret advocates of the king, who, in all criminal gravissimo stoicorum Panætio.” Cic. de Off. prosecutions, is the representative of the peo. lib. 2. c. 14. ple; and both the king and the country must (25) See ante 352, note 10, and 2 R. S. be better satisfied with the acquittal of the in. 735, g 15 nocent, than with the conviction of the guilty.

seldom remembered accurately, or reported with due precision ; and incapable in their nature of being disproved by other negative evidence (26). By the same statute 7 W. III. it is declared, that both witnesses must be to the same overt act of treason, or one to one overt act, and the other to another overt act, of the same species of treason (b), and not of distinct heads or kinds : and no evidence shall be admitted to prove any overt act not expressly laid in the indictment (27). And therefore in sir John Fenwick's case in king William's time, where there was but one witness, an act of parliament (c) was made on purpose to attaint him of treason, and he was executed (d). But in almost every other accusation one positive witness is sufficient. Baron Montesquieu lays it down for a rule (e), that those laws which condemn a man to death in any case on the disposition of a single witness, are fatal to liberty; and he adds this reason, that the wit

ness who affirms, and the accused who denies, make an equal [*358) balance (S); there is a necessity therefore to call *in a third man

to incline the scale. But this seems to be carrying matters 100 far : for there are some crimes, in which the very privacy of their nature excludes the possibility of having more than one witness ; must these therefore escape unpunished ? Neither indeed is the bare denial of the person accused equivalent to the positive oath of a disinterested witness. İn cases of indictments for perjury, this doctrine is better founded; and there our law adopts it : for one witness is not allowed to convict a man for perjury ; because then there is only one oath against another (g). In cases of treason also there is the accused's oath of allegiance, to counterpoise the information of a single witness; and that may perhaps be one reason why the law requires a double testimony to convict him : though the principal reason, undoubtedly, is to secure the subject from being sacrificed to fictitious conspiracies, which have been the engines of profligate and crafty politicians in all ages.

Secondly, though from the reversal of colonel Sidney's attainder by act of parliament in 1689 (h) it may be collected (i), that the mere similitude of hand-writing in two papers shewn to a jury, without other concurrent testimony, is no evidence that both were written by the same person ; yet undoubtedly the testimony of witnesses, well acquainted with the party's hand, that they believe the paper in question to have been written by him, is evidence to be left to a jury (5) (28).

(6) See St. Tr. II. 144. Foster, 235.

(c) Stat. 8 W. III. c. 4
(d) St. Tr. V. 40.
(e) Sp. L. b. 12, c. 3.

Beccar. c. 13. (g) 10 Mod. 194.

(h) St. Tr. VIII. 472.
(i) 2 Hawk. P. C. 431.

(1) Lord Preston's case, A. D. 1690. St. Tr. IV, 453. Francis's case, A. D. 1716. St. Tr. VI. 69. Layer's case, A. D. 1722. Ibid. 279. Henzey's case, A. D. 1758. 4 Burr. 644.

(26) It seems to be now clearly established, confession so obtained cannot be received in that a free and voluntary consession by a per: evidence, on account of the uncertainty and son accused of an offence, whether made be- doubt whether it was not made rather from a fore his apprehension or aster, whether on a motive of fear or of interest, than from a sense judicial examination or after commitment, of guilt. Phil. Ev. 86. The prisoner's state. whether reduced into writing or not, in short, ment must not be taken upon oath, and if he that any voluntary confession, made by a pri- has been sworn, it cannot be received in evi. souer to any person, at any time or place, is dence. A consession is evidence only against strong evidence against him; and, if satissac. the person consessing, not against oihers, al. torily proved, sufficient to convict without any though they are proved to be his accomplices. corroborating circumstance. But the conses. See Pbil. Ev. c. 5, s. 5, and the authorities there sion must be voluntary, not obtained by im. collected on this subject. proper influence, nor drawn from the prisoner (27) See accordingly, 2 R. S. 735, § 15, by means of a threat or promise : for however &c. slight the promise or threat may have been, a (28) But the poof of hand-writing is not dead;



Thirdly, by the statute 21 Jac. I. c. 27. a mother of a bastard child, concealing its death, must prove by one witness that the child was born

otherwise such concealment shall be evidence of her having murdered it (k) (29).

Fourthly, all presumptive evidence of felony should be admitted cautiously; for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer. *And sir Matthew Hale in [*359] particular (?) lays down two rules most prudent and necessary to be observed : 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter, till at least the body be found dead; on account of two instances he mentions, where persons were executed for the murder of others, who were then alive, but missing.

Lastly, it was an ancient and commonly received practice (m) (derived from the civil law, and which also to this day obtains in the kingdom of France) (n), that, as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses. And therefore it deserves to be remembered to the honour of Mary 1. (whose early sentiments, till her marriage with Philip of Spain, seem to have been humane and generous) (0), that when she appointed sir Richard Morgan chief justice of the common pleas, she enjoined him, “ that notwithstanding the old error, which did not admit any witness to speak, or any other matter to be heard, in favour of the adversary, her majesty being party; her highness's pleasure was, that whatsoever could be brought in favour of the subject should be admitted to be heard : and moreover, that the justices should not persuade themselves to sit in judgment otherwise for her highness than for her subject (p).” Afterwards, in one particular instance (when embezzling the queen's military stores was made felony by statute 31 Eliz. c. 4.), it was provided, that any person impeached for such felony, “should be received and admitted io make any lawful proof that he could, by lawful witness or otherwise, for his discharge and defence :” and in general the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive, that a practice was *gradually introduced of examining witnesses for the pri- [*360) soner, upon


of which still was, that the jury gave less credit to the prisoner's evidence, than to that produced by the crown. Sir Edward Coke (r) protests very strongly against this tyrannical practice ; declaring that he never read in any act of parliament, book-case, or record, that in criminal cases the party accused should not have witnesses sworn for him; and therefore there was not so much as scintilla juris against it (s). And the house of commons were so sensible of this absurdity, that, in the bill for abolishing hostilities between England and Scotland (1), when felonies committed by Englishmen in Scotland (k) See page 198.

(p) Ilollingsh. 1112. St. Tr. 1. 72. (1) 2 Hal. P.C. 290.

(9) 2 Bulst. 147. Cro. Car. 292. (m) St. Tr. I. passim.

T) 3 Inst. 79. in) Domat. publ. law, b. 3, t. 1. Montesq. Sp. L. (s) See also 2 Hal. P. C. 283, and his summary, b. 29, c. 11

264. (0) See page 17.

(1) Stat. 4 Jac. I. c. 1. evidence in high treason, unless the papers Stark, on Evid. index, Hand-writing. are found in the custody of the prisoner. I (29) Repealed by 43 G. III. c. 58, which is Burr. 644. And see further as to this evi- also repealed by 9'G. IV. c. 31. See s. 14 of dence, Phil. on Evid. index, Hand-writing. the latter statute, ante 198, note 31.

but not

(9): the

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