from that which the law prescribes, would be prosecuted as guilty of murder.* In a word, the constitution of England, being a free con stitution, demanded, from that circumstance alone (as should already have but too often repeated, if so funda mental a truth could be too often urged), extraordinary precautions to guard against the dangers which unavoid ably attend the power of inflicting punishments; and it i particularly when considered in this light, that the trial by jury proves an admirable institution. By means of it, the judicial authority is not only placed out of the hands of the man who is invested with the exe cutive authority-it is even out of the hands of the judge himself. Not only the person who is trusted with the public power cannot exert it, till he has, as it were, receiv ed a permission to that purpose, of those who are set apart to administer the laws; but these latter are also restrained in a manner exactly alike, and cannot make the law speak, but when, in their turn, they have likewise received per mission. And those persons to whom the law has thus exclusively delegated the prerogative of deciding that a punishment is to be inflicted-those men, without whose declaration the executive and the judicial powers are both thus bound down to inaction, do not form among themselves a permanent body, who may have had time to study how their power can serve to promote their private views or interest: they are men selected at once from among the people, who perhaps never were before called to the exercise of such a function, nor foresee that they ever shall be called to it again. As the extensive right of challenging effectually baffles, on one hand, the secret practices of such as, in the face of so many discouragements, might still endeavour to make the judicial power subservient to their own views, and, on the other, excludes all personal resentments, the sole affec tion which remains to influence the integrity of those who alone are entitled to put the public power into action, during the short period of their authority, is, that their own *And if any other person but the sheriff, even the judge himself, were to cause death to be inflicted upon a man, though convicted, it would be deemed homicide. See Blackstone, book iv. chap. 14. fate as subjects is essentially connected with that of the man whose doom they are going to decide. In fine, such is the happy nature of this institution, that he judicial power, a power so formidable in itself, which sto dispose, without finding any resistance, of the property, honour, and life, of individuals, and which, whatver precautions may be taken to restrain it, must in a great degree remain arbitrary, may be said in England to exist to accomplish every intended purpose-and to be in the hands of nobody.* In all these observations on the advantages of the English criminal law, I have only considered it as connected with the constitution, which is a free one; and it is in this view alone that I have compared it with the jurisprudence received in other states. Yet, abstractedly from the weighty constitutional consideration which I have suggested, I think there are still other interesting grounds of pre-eminence on the side of the laws of England. In the first place, they do not permit that a man should be made to run the risk of a trial, but upon the declaration of twelve persons at least (the grand jury). Whether he be in prison, or on his trial, they never for an instant refuse free access to those who have either advice or comfort to give him; they even allow him to summon all who may have any thing to say in his favour: and, lastly, what is of very great importance, the witnesses against him must deliver their testimony in his presence: he may cross-examine them, and, by one unexpected question, confound a whole system of calumny: indulgences these, all denied by the laws of other countries. Hence, though an accused person may be exposed to have his fate decided by persons (the petty jury) who possess not, perhaps, all that sagacity which in some delicate cases it is particularly advantageous to meet with in a judge, yet this inconvenience is amply compensated by the extensive means of defence with which the law, as we have seen, has provided him. If a juryman does not possess that expertness which is the result of long practice, yet neither does he bring to judgment that hardness of heart which The consequence of this institution is, that no man in England ever meets the man of whom he may say, 'That man has a power to decide on my death cr life.' If we could for a moment forget the advantages of that institution, we ought at least to admire the ingenuity of it. is, more or less, also the consequence of it: and bearing about him the principles (let me say, the unimpaired in stinct) of humanity, he trembles while he exercises the awful office to which he finds himself called, and in doubt ful cases always decides for mercy. It is to be farther observed, that, in the usual course of things, juries pay great regard to the opinions delivered by the judges; that, in those cases where they are clear as to the fact, yet find themselves perplexed with regard to the degree of guilt connected with it, they leave it, as has been said before, to be ascertained by the discretion of the judge, by returning what is called a special verdict; that, whenever circumstances seem to alleviate the guilt of a person, against whom nevertheless the proof has been positive, they temper their verdict by recommending him to the mercy of the king (which seldom fails to produce at least a mitigation of the punishment); that, though a man once acquitted can never, under any pretence whatsoever, be again brought into peril for the same offence, yet a new trial would be granted if he had been found guilty upon evidence strongly suspected of being false. Lastly, what distinguishes the laws of England from those of other coun tries in a very honourable manner, is, that, as the torture is unknown to them, so neither do they know any more grievous punishment than the simple deprivation of life. All these circumstances have combined to introduce such a mildness into the exercise of criminal justice, that the trial by jury is that point of their liberty to which the people of England are most thoroughly and universally wedded; and the only complaint I have ever heard uttered against it, has been by men who, more sensible of the necessity of public order than alive to the feelings of humanity, think that too many offenders escape with impunity. CHAP. XIV. The subject concluded. Laws relative to imprisonment. BUT what completes that sense of independence which the laws of England procure to every individual (a sense which is the noblest advantage attending liberty) is, the great ₹ ༽ར་ ness of their precautions upon the delicate point of impri sonment. In the first place, by allowing, in most cases, enlarge: ment upon bail, and by prescribing, on that article, express rules for the judges to follow, they have removed all pretexts, which circumstances might afford, for depriving a man of his liberty. But it is against the executive power that the legislature has, above all, directed its efforts: nor has it been but by slow degrees that it has been successful in wresting from it a branch of power which enabled it to deprive the people of their leaders, as well as to intimidate those who might be tempted to assume the function; and which, having thus all the efficacy of more odious means without the dangers of them, was perhaps the most formidable weapon with which it might attack public liberty. The methods originally pointed out by the laws of England for the enlargement of a person unjustly imprisoned, were the writs of mainprise, de odio et atia, and de homine replegiando. Those writs, which could not be denied, were an order to the sheriff of the county in which a person was confined, to inquire into the causes of his confinement; and, according to the circumstances of his case, either to discharge him completely, or upon bail. But the most useful method, and which even, by being most general and certain, has tacitly abolished all the others, is the writ of Habeas Corpus, so called, because it begins with the word Habeas corpus ad subjiciendum. This writ being a writ of high prerogative, must issue from the Court of King's Bench: its effects extend equally to every county; and the king by it requires, or is understood to require, the person who holds one of his subjects in custody, to carry him before the judge, with the date of the confinement, and the cause of it, in order to discharge him, or continue to detain him according as the judge shall decree. But this writ, which might be a resource in cases of violent imprisonment effected by individuals, or granted at their request, was but a feeble one, or rather was no resource at all against the prerogative of the prince, especially under the sway of the Tudors, and in the beginning of that of the Stuarts. And even in the first years of Charles the First, the judges of the King's Bench, who, in consequence of the spirit of the times, and of their holding their places durante bene placito, were constantly devoted to the court, declared,' that they could not, upon a Habeas Corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king, or by the lords of the privy-council.' ■ Those principles, and the mode of procedure which resulted from them, drew the attention of parliament; and in the bill called the Petition of Right, passed in the third year of the reign of Charles the First, it was enacted, that no person should be kept in custody, in consequence of such imprisonments. But the judges knew how to evade the intention of this act: they indeed did not refuse to discharge a man imprisoned without a cause: but they used so much delay in the examination of the causes, that they obtained the full effect of an open denial of justice. The legislature again interposed, and in the act passed in the sixteenth year of the reign of Charles the First, the same in which the Star-chamber was suppressed, it was enacted, that 'if any person be committed by the king himself in person, or by his privy-council, or by any of the members thereof, he shall have granted unto him, without delay, upon any pretence whatsoever, a writ of Habeas Corpus; and that the judge shall thereupon, within three court days after the return is made, examine and determine the legality of such imprisonment.' The act seemed to preclude every possibility of future evasion yet it was evaded still; and, by the connivance of the judges, the person who detained the prisoner could, without danger, wait for a second, and a third writ, called an alias and a pluries, before he produced him. All these different artifices gave at length birth to the famous act of Habeas Corpus (passed in the thirty-first year of the reign of Charles the Second), which is considered in England as a second Great Charter, and has extinguished all the resources of oppression.* The rea title of this act is, An Act for better securing the liberty of the subject, and for prevention of imprisonment beyond the seas.' |