give in evidence, so that what the one has declared shall not inform or induce another witness of the same side, to give his evidence in the same words, or to the very same effect. The whole of the evidence being gone through, the Jurors shall confer together, at their pleasure, as they shall think most convenient, upon the truth of the issue before them; with as much deliberation and leisure as they can well desire, being all the while in the keeping of an officer of the Court, in a place assigned them for that purpose, lest any one should attempt by indirect methods to influence them as to their opinion, which they are to give in to the Court. Lastly, they are to return into Court and certify the Justices upon the truth of the issue so joined, in the presence of the parties (if they please to be present) particularly the person who is plaintiff in the cause; what the Jurors shall so certify in the Laws of England, is called the Verdict. In pursuance of which verdict, the Justices shall render and form their judgment. Notwithstanding, if the party, against whom such verdict is obtained, complain that he is thereby aggrieved, he may sue out a writ of Attaint, both against the Jury, and also against the party who obtained it; in virtue of which, if it be found upon the oath of twenty-four men (returned in manner before observed, chosen and sworn in due form of law, who ought to have much better estates than those who were first returned and sworn) that those, who were of the original panel and sworn to try the fact, have given a verdict, contrary to evidence, and their oath; every one of the first Jury shall be committed to the publick gaol, their goods shall be confiscated, their possessions seized into the King's hands, their habitations and houses shall be pulled down, their woodlands shall be felled, their meadows shall be plowed up, and they themselves shall ever thenceforward be esteemed, in the eye of the Law, infamous, and in no case whatso

ever, are they to be admitted to give evidence in any Court of Record: the party, who suffered in the former trial, shall be restored to every thing they gave against him, through occasion of such their false verdict: and, who then (though he should have no regard to conscience or honesty) being so charged upon his oath, would not declare the truth from the bare apprehensions and shame of so heavy a punishment, and the very great infamy which attends a contrary behaviour? and, if perhaps, one or more amongst them should be so unthinking or daring, as to prostitute their character, yet the rest of the Jurors, probably, will set a better value on their reputations than suffer either their good name or possessions to be destroyed and seized in such a manner: now, is not this method of coming at the truth better and more effectual, than that way of proceeding, which the Civil Laws prescribe? No one's cause or right is, in this case, lost, either by death or failure of witnesses. The Jurors returned are well known, they are not procured for hire; they are not of inferior condition; neither strangers, nor people of uncertain characters, whose circumstances or prejudices may be unknown. The witnesses or Jurors are of the neighbourhood, able to live of themselves, of good reputation and unexceptionable characters, not brought before the Court by either of the parties, but chosen and returned by a proper officer, a worthy, disinterested and indifferent person, and obliged under a penalty to appear upon the trial. They are well acquainted with all the facts, which the evidences depose, and with their several characters. What need of more words? there is nothing omitted which can discover the truth of the case at issue, nothing which can in any respect be concealed from, or unknown to a Jury who are so appointed and returned, I say, as far as it is possible for the wit of man to devise.

CHAP. XXVII.

It becomes now absolutely necessary to inquire thoroughly how the Laws of England come at the truth in cases criminal; whereby the form of proceedings in both laws being made appear, we may the better judge, which law does most effectually discover the truth. If any suspected person who stands accused for felony or treason committed in England, denies the crime of which he stands accused, before his Judges: the Sheriff of the County where the fact is committed, shall cause to come before the same Judges twenty-four good and lawful men of the neighbourhood to the Vill where the fact was done, who are in no wise allied to the person accused, who have lands and revenues to the value of an hundred shillings; and they are to certify to the Judges upon the truth of the fact, wherewith the party is charged. Upon their appearance in Court, as they come to the book to be sworn, before they be sworn, the person accused may challenge them, in the same manner as is above described, and as is usually done in real actions. Further, in favour of life, he may challenge five and thirty; such as he most feareth and suspecteth, who, upon such challenge shall be struck out of the Panel, or such marks set over against their names, that (to use the term in law) they shall not pass upon him in trial; and this peremptorily, without assigning any cause for such challenge; and no exceptions are to be taken against such

his challenge: who then in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favour of life: none but his neighbours, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused, guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned, and suffer capitally. Neither can there be any room for suspicion, that in such a course and method of proceeding, a guilty person can escape the punishment due to his crimes; such a man's life and conversation would be restraint and terror sufficient to those who should have any inclination to acquit him in a prosecution, carried on in this manner, there is nothing cruel, nothing inhuman; an innocent person cannot suffer in life or limb: he has no reason to dread the prejudices or calumny of his enemies, he will not, cannot, be put to the rack, to gratify their will and pleasure. In such a Constitution, under such laws, every man may live safely and securely. Judge then, good Sir! which law is rather to be chosen, putting yourself in the private capacity of a subject'.

In the two preceding Chapters, Fortescue considers the evidence in a trial, the verdict of the Jury, and their responsibility in the discharge of the duties confided to them. It will be oberved that the Jurors in the course of this treatise are frequently called testes; it would seem that they were originally the only witnesses in every cause, agreeably to the maxim, "vicini vicinorum præsumuntur scire:" and that when any of the Jury protested ignorance of the matter in dispute, they were removed, and their places supplied by others. (Reeves's History of the Law, Henry III, Edw. I.) The essential alteration, which has since taken place in the character of the Jury, does not appear to have been thoroughly effected till the times of Edward VI, and Mary. Many changes of a very important description, have been made in the rules of the Courts, respecting the conduct of a trial. As regards the evidence on the part of the prosecution,

the

At

the prisoner was for a long time debarred the privilege of cross-examining the witnesses brought against him: a privilege which Lord Camden, in the case of the Dutchess of Kingston, speaks of with enthusiastic eloquence; yet written examinations were on many occasions produced in evidence for the Crown, not signed by the witnesses, and frequently made by persons who had themselves been capitally convicted. (Amongst others, the Cases of Sir N. Throgmorton, Udall, the Duke of Norfolk, Sir Walter Raleigh; and see Foster's Discourse on Treason.) A practice of interrogating the prisoner upon his trial, for the purpose of establishing the charge against him, or taking off the effect of his defence, appears to have formerly prevailed in the Courts of Justice of this Country. (See the Cases of Sir N. Throgmorton, Whitebread, Langhorne, Gaunt; and since the Revolution, the Cases of Ashton and Sir W. Parkyns.) By the Statute of Edward the Sixth, two witnesses were required in prosecutions for High Treason, and they were to be produced in open Court. The singular vicissitudes attending this Statute, are detailed by Mr. Justice Foster in his Discourse upon High Treason, and by Mr. Reeves in his History of the Law. first slighted, before any attempt was made to invalidate it; afterwards, from an early period of the reign of Mary till the Commonwealth, treated as repealed: acknowledged to be in force under that Government; regarded as unquestionable Law after the Restoration; and finally cleared from equivocal meaning and sophistical interpretations by the Treason Act of William the Third. The nature and functions of the Grand Jury in ancient times, may be collected from what Glanville has written concerning the "fama publica;" and from the Chapter in Bracton respecting the proceedings "per famam patriæ. (Glanville, lib. xiv. c. 1. Bracton, lib. iii. c. 22. and see Kelham's Britton, p. 18. n. 15. a record of an Indictment on Suspicion.) In the reign of Charles II, it became an object of deep national concern, to ascertain the evidence which a Grand Jury ought to require in support of indictments preferred before them in the absence of the party accused. C. J. Pemberton instructed a Grand Jury, that it was not competent to them to examine the credit of the King's witnesses, and that they ought to be satisfied with any ground the Crown might shew for calling upon the prisoner to answer the imputed charge. This Grand Jury refused to act upon the advice of the Judge, which they conceived to be at variance with the principles upon which their institution was founded, and accordingly ignored a bill that had been preferred against the celebrated Lord Shaftesbury. Lord Somers has defended the propriety of their conduct in a celebrated Tract upon the duty of Grand Juries, in which he repeatedly appeals to the authority of Fortescue, and maintains "that the Constitution

intrusts