_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._