which is one inevitable attendant on that mode of government. Besides, those bodies, whatever their outward pri vileges may be, being at bottom in a state of great weakness, have no other means of acquiring the respect of the people than their integrity, and their constancy in observ ing certain rules and forms: nay, these circumstances, united, in some degree, overawe the sovereign himself, and 4: discourage the thoughts he might entertain of making them the tools of his caprice.*

But in a strictly limited monarchy, that is, where the prince is understood to be, and in fact is, subject to the laws, numerous bodies of judicature would be repugnant to the spirit of the constitution, which requires that all powers in the state should be as much confined as the end of their institution can allow; not to add, that, in vicissitudes incident to such a state, they might exert a very dangerous influence.

Besides, that awe which is naturally inspired by such bodies, and is so useful when it is necessary to strengthen the feebleness of the laws, would not only be superfluous in a state where the whole power of the nation is on their side, but would moreover have the mischievous tendency to introduce another sort of fear than that which men must be taught to entertain. Those mighty tribunals, I am will. ing to suppose, would preserve, in all situations of affairs, that integrity which distinguishes them in states of a different constitution: they would never inquire after the influence, still less the political sentiments of those whose fate they were called to decide; but these advantages, not

*The above observations, are in a great measure meant to allude to the French parlemens, and particularly that of Paris, which formed such a considerable body as to be once summoned as a fourth order to the general estates of the kingdom. The weight of that body, increased by the circumstance of the members holding their places for life, was in general attended with the advantage of placing them above being overawed by private individuals in the administration either of civil or criminal justice; it even rendered them so difficult to be managed by the court, that the ministers were at times obliged to appoint particu lar judges, or commissaries, to try such men as they resolved to ruin. These, however, were only local advantages, connected with the nature of the French government, which was an uncontrolled monarchy, with considerable remains of aristocracy. But, in a free state, such a powerful body of men, invested with the power of deciding on the life, honour, and property of the citizens, would be productive of very dangerous political consequences; and the more so, if such judges had, as is the case all over the world, except here, the power of deciding upon the matter of law and the matter of fact.

being founded in the necessity of things, and the power of such judges seeming to exempt them from being so very virtuous, men would be in danger of taking up the fatal opinion, that the simple exact observance of the laws is not the only task of prudence; the citizen called upon to defend, in the sphere where fortune has placed him, his own rights, and those of the nation ftself, would dread the consequence of even a lawful conduct, and though encouraged by the law, might desert himself when he came to behold its ministers.

In the assembly of those who sit as his judges, the citizen might possibly descry no enemies; but neither would he see any man whom a similarity of circumstances might engage to take a concern in his fate: and their rank, especially when joined with their numbers, would appear to him to lift them above that which overawes injustice where the law has been unable to secure any other check-1 mean the reproaches of the public.

And these his fears would be considerably heightened, if, by the admission of the jurisprudence received among certain nations, he beheld those tribunals, already so formidable, wrap themselves up in mystery, and be made, as it were, inaccessible.

An allusion is made here to the secrecy with which the proceedings, in the administration of criminal justice, are to be carried on, according to the rules of the civil law, which in that respect are adopted over all Europe. As soon as the prisoner is committed, he is debarred of the sight of every body, till he has gone through his several examinations. One or two judges are appointed to examine him, with a clerk to take his answers in writing, and he stands alone before them in some private room in the prison. The witnesses are to be examined apart, and he is not admitted to see them till their evidence is closed: they are then confronted together, before all the judges, to the end that the witnesses may see if the prisoner is really the man they meant in giving their respective evidences, and that the prisoner may object to such of them as he shall think proper. This done, the depositions of those witnesses, who are adjudged upon trial to be exceptionable, are set aside; the depositions of the others are to be laid before the judges, as well as the answers of the prisoner, who has been previously called upon to confirm or deny them in their presence; and a copy of the whole is delivered to him, that he may, with the assistance of a counsel, which is now granted him, prepare for his justification. The judges are, as has been said before, to decide both upon the matter of law and the matter of fact, as well as upon all incidents that may arise during the course of the proceedings, such as admitting witnesses to be heard hn behalf of the prisoner, &c.

This mode of criminal judicature may be useful as to the bare discovery of truth-a point which I do not propose to discuss here; but, at the same time, a prisoner is so completely delivered up into the hands of the judges, who even can detain him almost at pleasure by multiply.

F

He could not think, without dismay, of those vast prisons within which he is one day perhaps to be immured-of those proceedings, unknown to him, through which he is to pass

of that total seclusion from the society of other menor of those long and secret examinations, in which, aban doned wholly to himself, he will have nothing but a pas sive defence to oppose to the artfully-varied questions of men whose intentions he shall at least mistrust; and in which his spirits, broken down by solitude, shall receive no support, either from the counsels of his friends, or the looks of those who may offer up vows for his deliverance.

The security of the individual, and the consciousness of that security, being then equally essential to the enjoyment of liberty, and necessary for the preservation of it, these two points must never be left out of sight, in the establishment of a judicial power; and I conceive that they necessarily lead to the following maxims.

In the first place, I shall remind the reader of what has been laid down above, that the judicial authority ought never to reside in an independent body; still less in him who is already the trustee of the executive power. Secondly, the party accused ought to be provided with all possible means of defence. Above all things, the whole proceedings ought to be public. The courts, and their dif ferent forms, must be such as to inspire respect, but never terror: and the cases ought to be so accurately ascertained, the limits so clearly marked, that neither the executive power, nor the judges, may ever hope to transgress them with impunity.

In fine, since we must absolutely pay a price for the advantage of living in society, not only by relinquishing some share of our natural liberty (a surrender which, in a wisely-framed government, a wise man will make without reluctance), but even also by resigning part of our personal security-in a word, since all judicial power is an evil, though a necessary one, no care should be omitted to reduce as far as possible the dangers of it.

As there is, however, a period at which the prudence of

ing or delaying his examinations, that, whenever it is adopted, men are almost as much afraid of being accused, as of being guilty, and es pecially grow very cautious how they interfere in public matters. We shall see presently how the trial by jury, peculiar to the English nation, is admirably adapted to the nature of a free state.

man must stop, at which the safety of the individual must be given up, and the law is to resign him to the judgment of a few persons, that is (to speak plainly), to a decision in some sense arbitrary, it is necessary that the law should narrow as far as possible this sphere of peril, and so order matters, that when the subject shall happen to be summoned to the decision of his fate by the fallible conscience of a few of his fellow-creatures, he may always find in them advocates, and never adversaries. ·

CHAP. XIII.

The subject continued.

AFTER having offered to the reader, in the preceding chapter, such general considerations as I thought necessary, in order to convey a more just idea of the spirit of the criminal judicature in England, and of the advantages peculiar to it, I now proceed to exhibit the particulars:

When a person is charged with a crime, the magistrate, who is called in England a justice of the peace, issues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him: he must then hear him, and take down in writing his answers, together with the different informations. If it ap pears, on this examination, either that the crime laid to the charge of the person who is brought before the justice was not committed, or that there is no just ground to suspect him of it, he must be set absolutely at liberty; if the contrary results from the examination, the party accused must give bail for his appearance to answer to the charge, unless in capital cases; for then he must, for safer custody, be really committed to prison, in order to take his trial at the next sessions.

But this precaution, of requiring the examination of an accused person, previous to his imprisonment, is not the only care which the law has taken in its behalf; it has farther ordained, that the accusation against him should be again discussed, before he can be exposed to the danger of a trial. At every session the sheriff appoints what is called the grand jury. This assembly must be composed of more than twelve men, and less than twentyfour; and is always formed out of the most considerable

persons in the county. Its function is, to examine the evidence that has been given in support of every charge: if twelve of those persons do not concur in the opinion that an accusation is well grounded, the party is immedi ately discharged; if, on the contrary, twelve of the grand jury find the proofs sufficient, the prisoner is said to be indicted, and is detained, in order to go through the remaining process.

On the day appointed for his trial, the prisoner is brought to the bar of the court, where the judge, after causing the bill of indictment to be read in his presence, must ask him how he would be tried? to which the prisoner answers, By God and my country; by which he is understood to claim to be tried by a jury, and to have all the judicial means of defence to which the law entitles him. sheriff then appoints what is called the petit jury: this must be composed of twelve men, chosen out of the county where the crime was committed, and possessed of a landed income of ten pounds a year: their declaration finally decides on the truth or falsehood of the accusation.

The

As the fate of the prisoner thus entirely depends on the men who compose this jury, justice requires that he should have a share in the choice of them; and this he has, through the extensive right which the law has granted him, of challenging, or objecting to such of them as he may think exceptionable.

These challenges are of two kinds. One, which is called the challenge to the array, has for its object to have the whole pannel set aside: it is proposed by the prisoner, when he thinks that the sheriff who formed the pannel is not indifferent in the cause; for instance, if he thinks he has an interest in the prosecution, that he is related to the prosecutor, or in general to the party who pretends to be injured.

The other challenges are called, to the polls (in capita): they are exceptions proposed against the jurors, severally,< and are reduced to four heads by sir Edward Coke.-That which he calls propter honoris respectum, may be proposed against a lord empannelled on a jury; or he might challenge himself. That propter defectum takes place when a juror is legally incapable of serving that office, as if he is an alien; if he has not an estate sufficient to qualify