Images de page

but in those for high treason, and for misprision of treason, that is to say, for a conspiracy against the life of the king, or against the state, and for a concealment of it,*-accusations which suppose a heat of party and powerful accusers - the law has provided for the accused party farther safeguards.

First, no person can be questioned for any treason, except a direct attempt on the life of the king, after three years elapsed, since the offence. 2°. The accused párty may, independently of his other legal grounds of challenging, peremptorily challenge thirty-five jurors. 39. He may have two counsel to assist him through the whole course of the proceedings. 4'. That his witnesses may not be kept away, the judges must grant him the same compulsive process to bring them in, which they issue to compel the evidences against him. 5o. A copy of his indictment must be delivered to him ten days at least before the trial, in presence of two witnesses, and at the expense of five shillings ; which copy must contain all the facts laid to his charge, the names, professions, and abodes, of the jurors who are to be on the pannel, and of

* The penalty of a misprision of treason in, the feiture of all goods, and imprisonment for life

[ocr errors][ocr errors][ocr errors]

this mode of proceeding is, that the jury must be unanimous.

And as the main object of the institution of the trial by jury is to guard accused persons against all decisions whatsoever from men invested with any permanent official authority, it is not only a settled principle that the opinion which the judge delivers has no weight but such as the jury choose to give it ; but their verdict must besides comprehend the whole matter in trial, and decide as well upon the fact, as upon the point of law that may arise out of it: in other words they must pronounce both on the commission of a certain fact, and on the reason which makes such fact to be contrary to law.t

* “ Laws,” as Junius says extremely well, “ are in« tended, not to trust to what men will do, but to guard “ against what they may do."

+ Unless they choose to give a special verdict. “ When the jury,” says Coke, “ doubt of the law, and “ intend to do that which is just, they find the special “ matter; and the entry is, Et super totâ materia petunt discretionem justiciariorum.Inst. iv. These words of Coke, we may observe, confirm beyond a doubt the power of the jury to determine on the whole matter in trial; a power which in all constitutional views is necessary; and the more so, since a prisoner cannot in England challenge the judge, as he can under the civil law, and for the same causes as he can a witness.

This is even so essential a point, that a bill of indictment must expressly be grounded upon those two objects. Thus an indictment for treason must charge, that the alleged facts were committed with a treasonable intent (proditorie). An indictment for murder must express, that the fact has been committed with malice prepense, or afore-thought. An indictment for robbery must charge, that the things were taken with an intention to rob (animo furandi), &c.*

Juries are even so uncontrollable in their verdict,—so apprehensive has the constitution been lest precautions to restrain them in the exercise of their functions, however specious in the beginning, might in the issue be converted to the very destruction of the ends of that institution,--that it is a repeated principle that a juror, in delivering his opinion, is to have no other


The principle that a jury is to decide both on the fact and the criminality of it, is so well understood, that, if a. verdict were so framed as only to have for its object the bare existence of the fact laid to the charge of the prisoner, no punishment could be awarded by the judge in consequence of it. Thus, in the prosecution of Woodfall, for printing Junius' Letter to the King (a supposed libel)," the jury brought in the following verdict, guilty of printing and publishing only : the consequence of which was the discharge of the prisoner.

rule than his opinion itself,—that is to say, no other rule than the belief which results to his mind from the facts alleged on both sides, from their probability, from the credibility of the witnesses, and even from all such circumstances as he may have a private knowledge of. Lord chief-justice Hale expresses himself on this subject, in the following terms :

“ In this recess of the jury, they are to con“ sider the evidence, to weigh the credibility “ of the witnesses, and the force and efficacy of their testimonies; wherein (as I have “ before said) they are not precisely bound by " the rules of the civil law, viz, to have two “ witnesses to prove every fact, unless it be “ in cases of treason, nor to reject one wit

ness because he is single, or always to o believe two witnesses, if the probability of “ the fact does upon other circumstances

reasonably encounter them ; for the trial is “ not here simply by witnesses, but by Jury:

nay, it may so fall out, that a jury upon “ their own knowledge may know a thing " to be false, that a witness swore to be true,

or may know a witness to be incompetent “or incredible, though nothing be objected

against him—and may give their verdict accordingly.”


[ocr errors]
« PrécédentContinuer »