VOLUME TWO
The Preface
In the Preface to my former volume I endeavoured to give my readers some idea of the English Crown Law, in order to shew how consistent it was with right reason, how perfectly just, and at the same time how full of mercy. In this, I intend to pursue the thread of that discourse, and explain the methods by which Justice in criminal cases is to be sought, and the means afforded by our Law to accuse the guilty and to prevent punishment from falling on the innocent. In order to do this the more regularly, it is fit we begin with the apprehension of offenders, and shew the care of the Legislature in that respect.
In sudden injuries, such as assaults on the highway, attempts to murder or to commit any felony whatsoever, there is no necessity for any legal officer to secure the person who is guilty, for every private man hath sufficient authority to seize and bring such criminal, either to a constable or to a Justice of the Peace, in order to have the fact clearly examined and such course taken therein as may conduce to the impartial distribution of Justice. And because men are apt to be scrupulous of interesting themselves in matters which do not immediately concern either their persons or their properties, so the Law hath provided punishments for those who, for fear of risking their private safety or advantage, suffer those who offend against the public to escape unpunished; hence hundreds are liable to be sued for suffering a robber to escape, and that method of pursuit which is called hue and cry is permitted, if no probable way may be left for felons to escape. Now a hue and cry is raised thus: the person robbed, for example, goes to the constable of the next town, tells him the case, described the felon, and the way he went. Whereupon the constable, be it day or night, is to take the assistance of those in his own town, and pursue him according to those directions immediately, at the same time sending with the utmost expedition to the neighbouring towns, who are to make like pursuit, and to send like notice until the felon be found.
So desirous is our Law of bringing offenders to Justice, and of preserving the roads free from being infested with these vermin. For the better effecting of this, besides those means prescribed by the customs of our ancestors, of later times rewards have been given to such as hazarded their own persons in bringing offenders to justice, and of these, as far as they are settled by Acts of Parliament and thereby rendered certain and perpetual, I shall speak here; though not of those given by proclamation, because they being only for a stated time, people must hereafter have been misled by our account, when that time is expired.
Highwaymen becoming, some time after the Revolution, exceedingly bold and troublesome, by an Act made in the reign of William and Mary, a reward of forty pounds is given for apprehending any one in England or Wales, and prosecuting him so as he be convicted; which forty pounds is to be paid by the sheriff on a certificate of the judge or justices before whom such a felon was convicted. And in case a person shall be killed in endeavouring to apprehend or making pursuit after such robbers, the said forty pounds shall be paid to the executors or administrators of such persons upon the like certificate. Moreover, every person who shall take, apprehend, or convict such a person, shall have as a reward the horse, furniture, arms, money or other goods of such robber as shall be taken with him, the right or title of his Majesty's bodies politic or corporate, lords of manors, or persons lending or letting the same to such robber notwithstanding; excepting only the right of those from whom such horses, furniture, arms, money, or goods were before feloniously taken.
A like reward of forty pounds was, by another Act in the same reign, given to such as shall apprehend any person convicted of any capital crime relating to the coin of this land.
By an Act also made in the reign of the late King William, persons who apprehend and prosecute to conviction any who feloniously steal goods to the value of five shillings, out of any house, shop, warehouse, coach-house or stable, or shall assist, hire or command any person to commit such offence; then such person so taking as aforesaid, shall have a certificate gratis from the Judge or Justices, expressing the parish or place where such felony was committed; which certificate shall be capable of being once assigned over, and shall exempt its proprietor or assignee from all parish and ward offices, in the parish or ward wherein the felony was committed.
By an Act made in the fifth year of the late Queen, persons apprehending one guilty of burglary, or of feloniously breaking into a house in the day-time, and prosecuting to conviction, shall receive over and above the certificate before mentioned, the sum of forty pounds, as in the case of apprehending an Highwayman.
By an Act passed in the sixth year of the late King, whoever shall discover, apprehend, or prosecute to conviction without benefit of clergy, any person for taking money or other reward, directly or indirectly, to help persons to their stolen goods (such persons not having apprehended the felon who stole the same, and brought him to trial, and given evidence against him) shall be entitled to a reward of forty pounds for every offender so convicted, and shall have the like certificate, and like payment without fee, as persons may be entitled to for apprehending highwaymen.
The next point after offenders are once apprehended, is to carry them before a proper magistrate, viz., a Justice of the Peace, and this leads us to say something of the nature and authority of that office. My Lord Chancellor, or Lord Keeper of the Great Seal, the Lord High Steward of England, the Lord Marshal, and the Lord High Constable, each of the Justices of the King's Bench, and as some say, the Lord High Treasurer of England, have, as incidental to their offices, a general authority to keep the peace throughout the realm, and to award process for their surety thereof, and to take recognizances for it. The Master of the Rolls has also a like power, either incident to his office, or at least by prescription. As to the ordinary constructors or Justices of the Peace, they are constituted by the King's Commission, which is at present granted on the same form as was settled by the Judges in the 33rd Year of Queen Elizabeth, by which they are appointed and assigned every one of then jointly and separately to keep the King's peace in such a county, and cause to be kept all statutes made for the good of the peace and the quiet government of the Kingdom, as well within liberties, as without, and to punish all those who shall offend against the said statutes, and to cause all those to come before them, or any of them, who threaten any people as to the burning their houses, in order to compel them to be kept in prison until they shall find it. As to the other powers committed to these justices, it would be too long for me to explain them, and therefore after this general Act, I shall go on to take notice of the manner in which the person accused is treated, when brought before them.
First the Justice of Peace examines as carefully as he can into the nature of the offence, and the weight there is of evidence to persuade him of the just ground there is for accusing the person before him; and after he has thoroughly considered this, if the thing appear frivolous or ill-grounded, he may discharge the person, or if he think the circumstances strong enough to require it, he may take the bail of the party accused, or if the nature of the crime be more heinous, and the proof direct and clear, he is bound by an instrument under his hand and seal called a Mittimus, to commit the offender to safe custody until he is discharged according to Law. In carrying to prison for any crime whatsoever, if the party so carried escape himself, or if he be rescued by others, he and they are guilty of a very high misdemeanor, and in some cases, those who assist in making the rescue may be guilty of felony or high treason. But if a prisoner be once committed to gaol for felony, and afterwards break that prison and escape, such breach of prison is felony, by the Statute De Frangentibus Prisonam, and shall be tried for the same as in other cases of felony, and suffer on conviction. My readers will find mention made of a case of this nature in respect to one Roger Johnson, who some years ago was tried for breaking the prison of Newgate, while he remained a prisoner there under a charge of felony, and making his escape; but so tender is the English law that when there appeared a probability that one Fisher (not then taken) broke down the wall of the prison and that Johnson took advantage of that hole and made his escape, he was found not guilty, for want of due proof that he actually did break that hole through which he escaped.
The prisoner being in safe custody, a bill is next to be preferred to the grand jury of the county, in which the nature of the crime is properly set forth, and after hearing the evidence brought by the prosecutor to support the charge, they return the bill to the Court, marked Billa Vera or Ignoramus. In the first case the prisoner is required to be tried by the petit jury of twelve, and to abide their verdict; in case of the latter, he is to be discharged and freed from that prosecution. But the grand jury must find or not find the bill entire, for a Billa Vera to one part and an Ignoramus to another renders the whole proceeding void and is of the same use to the prisoner as if they had returned an Ignoramus upon the whole.
Many without knowing the Law have taken occasion to be very free with its precedents, and to treat them as things written in barbarous Latin, in which an unreasonable, if not ridiculous nicety is sometimes required. But when this comes to be thoroughly examined, we shall find that their proceedings are exactly conformable to reason, for if care and circumspection be necessary in deeds and writings relating to civil affairs, ought it not a fortiori to be more so where the life, liberty, reputation and everything that is dear and valuable to the subject is at stake? Therefore, since there are technical words in all sciences, surely the Law is not to be blamed for preserving certain words to which they have affixed particular and determined meanings for the expressing of such crimes as are made more or less culpable by the Legislature. Thus Murdravit is absolutely necessary in an indictment charging the prisoner with a murder; Caepit is the term made use of in indictments of larceny. Mayhemaivit expresses the fact charged in an indictment of maim; Felonice is absolutely necessary in all indictments of felony of what kind soever; Burglariter is the Latin word made use of to express that breaking which from particular circumstances our Law has called burglary, and appointed certain punishment for those who are guilty thereof. Proditorie expresses the Act in indictments of treason, and even if these are not Latin words, justified by the usage of Roman authors, the certainty which they give to those charges in which they are used, and which could not be so well expressed by circumlocutions, is a full answer to that objection, since the proceedings before a Court aim not at elegancy, but at Justice. But let us now go on to the next step taken to bring the offenders to Judgment.
The bill having been found by the grand jury, the prisoner is brought into the Court where he is to be tried, and set to the bar in the presence of the judges who are to try him. Then he is usually commanded to hold up his hand, but this being only a ceremony to make the person known to the court it may be omitted, or the person indicted saying I am here, will answer the same end. Then the proper officer reads the indictment which has been found against him, in English, and when he hath so done, he demands of the prisoner whether he be guilty or not guilty of the fact alleged against him, to which the prisoner answers as he thinks fit, and this answer is styled his plea. That tenderness which the English Law on all occasions expresses towards those who are to be brought to answer for crimes alleged against them, requires that at his arraignment, the prisoner be totally free from any pain or duress which may disturb his thought and hinder his liberty of pleading as he thinks fit, and for this reason, even in cases of high treason, irons are taken off during the time the prisoner is at the bar, where he stands without any marks of contumely whatsoever.
But in case the prisoner absolutely refuses to answer, or in an impertinent manner delay or trifle with the court, then he is deemed a mute; but if he speaks not at all, nor gives any sign by which the Court shall be satisfied that he is able to speak, then an inquest of officers, that is of twelve persons who happen to be by, are to enquire whether his standing mute arises from his contempt of the Court, or be really an infirmity under which he labours from the hands of God. If it be found the latter, then the Court, as counsel for the prisoner, shall hear the evidence with relation to the fact, and proceed therein as if the prisoner had pleaded not guilty; but if, on the contrary, the Court or the inquest shall be satisfied that the prisoner remains a mute only from obstinacy, then in some cases judgment shall be awarded against him as if he had pleaded or were found guilty, and in others he shall be remitted to his penance, that is to suffer what the Law calls Peine forte et dure, which is pressing, of which the readers will find an account in the subsequent life of Burnworth, alias Frazier; and therefore I shall not treat further of it here.
If, from conviction of his own guilt and a consciousness that it may be fully proved against him, the prisoner plead guilty to the indictment, it is considered as the highest species of conviction, and as soon as it is entered on record the Court proceeds to judgment without further proceedings on the indictments. But if the prisoner plead not guilty, and put himself for trial upon his country, then a jury of twelve men are to pass upon the defendant, and upon their verdict he is either to be acquitted or convicted.
And with respect to this jury, the English Law appears again more equitable than perhaps any other in the world, for in this case as the jury comes severally to the Book to be sworn, to try impartially between the King and the prisoner of the bar, according to the evidence that is given upon the indictment, the prisoner is even then at liberty to except against, or as the law term it, to challenge, twenty of the jury peremptorily, and as many more as he thinks fit on showing just cause. So also, if the prisoner be an alien, the jury are to be half aliens and half English. So tender is our constitution, not only of the lives of its natural born subjects, but, also of those who put themselves under its protection, that it has taken every precaution which the wit of man could devise to prevent prejudice, partiality, or corruption from mingling in any degree with the sentences pronounced upon offenders, or in the proceedings upon which they are founded.
Last of all we are to speak of the evidence or testimony which is to be given for or against the prisoner at the time of his trial. And first with respect to the evidence offered for the Crown; if it shall appear that the person swearing shall gain any great and evident advantage by the event of the trial in which he swears, he shall not be admitted as a good witness against the prisoner. Thus in the case of Rhodes, tried some years ago for forging letters of attorney for transferring South Sea Stock belonging to one Mr. Heysham, the prosecutor, Mr. Heysham, was not admitted to swear himself against the prisoner because in case of conviction six thousand pounds stock must have replaced to his account. But to this, though a general rule, there are some exceptions on which the compass of this discourse will not permit us to dwell. It is also a rule that a husband or wife cannot be admitted to testify against the prisoner, but to this also there are some exceptions, as in the Lord Audley's case,[57] where he was charged with holding his lady until his servant committed a rape upon her by his command. Also in marriages contracted by force against the form of the Statute; in that case it is provided that the woman, though a wife, may be admitted as evidence, as also in some other cases which we have not room to mention.
Persons convicted of perjury, forgery, etc., are not to be admitted as legal witnesses, but that the record of their contrition must be produced at the time the objection is made, for the Court mil take no notice of hearsay and common fame in such respect. An infidel, also, that is one who believes neither the Old nor New Testament, cannot be a witness, and some other disabilities there are which being uncommon, we shall not dwell upon here Yet it is necessary to take notice that whatever is offered as proof against the defendant, shall be heard openly before him, that he may have an opportunity of falsifying it, if he be able; and as in all cases, except high treason, no council is permitted to the prisoner except in matters of law, because every man is supposed to be capable of defending himself as to matters of fact, yet the Court is always council for the prisoner and never fails of instructing and informing him of whatever may conduce to his benefit or advantage; and if any difficult points of Law arise, council are assigned him, and are permitted to argue in his behalf with the same freedom that those do who are appointed by the Crown.
From this succinct account of the method in use in England, of doing justice in criminal cases, I flatter myself my readers will very clearly see how valuable those privileges are which we enjoy as Englishmen; how equitable the proceedings of our Courts of Justice; and how well constructed every part of our constitution is for the preservation of the lives and liberties of its subjects. If there remained room for us to compare the judicious proceedings in use here with those slight, rigorous and summary methods which are practised in other countries, the value of these blessings which we enjoy would be considerably enhanced. But as this Preface already exceeds its intended length, we must refer this to a more proper opportunity, and conclude with putting our readers in mind that by the careful perusal of this and the Preface to the First Volume, they will have competent notion of the Crown Law, the reasons on which it is founded, the method in which it is prosecuted, and the judgments on criminals which are inflicted thereby; matters highly useful in themselves, as well as absolutely necessary to be known, in order to a proper understanding of the following pages.
[57]
This was Mervyn, Lord Audley, 2nd Earl of Castlehaven, a man of loathsome profligacy, who was tried by his peers on charges of unnatural offences, and executed, in 1631.