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MR. EMLYN'S PREFACE
TO THE SECOND EDITION OF THE STATE TRIALS, IN SIX VOLUMES FOLIO: PRINTED IN THE YEAR 1730.
The usefulness of the work to the Study of the Law,
THE favourable reception which the First Impression of this Work has met with from the Public, is a sufficient recommendation of it in general; but perhaps it may not be unacceptable to the Reader to point out some of the particular Uses and Advantages of it.
Collections are chiefly intended for the preservation of separate Pieces, which by being scattered up and down, are often in length of time either quite lost, or hard to be come at: this, indeed, is a care not worth bestowing on those which are of little or no use; but the Pieces here preserv'd are evidently such, as a Collection of them must appear at first sight very beneficial to all studious inquirers into the Laws of this nation, especially into that principal branch of them, which concerns the Life and Liberty of the Subject: for since the Laws of England are in a great measure grounded upon immemorial Customs and Usages, the Precedents and Examples of former times must be singularly useful, if not absolutely necessary to a right understanding of them.-And tho' Criminal Cases do very much depend upon Statute Law, either the Crimes themselves, or the Punishments of them, being for the most part declar'd by act of parliament: yet the Method of Practice in the Trials of those Crimes is in the main govern'd by Common Law rules, and consequently not to be known, but by the Usage in former cases: and even in those instances, which fall under the direction of the Statute Law, the best Expositor of those Statutes is the constant received Practice, ever since they were made, optima legum interpres consuetudo. (a)
The Professors and Students of the Law will not be the only persons, who may receive benefit from this Work: here will be matter also of Instruction and Entertainment to all who are delighted with History, or inquisitive after the transactions of the former or present times; many parts of History will here be illustrated and set in a true light; the Reader may here see, as it were, with his own eyes, not needing to trust to the representations of others, which are often full of partiality or prejudice, according to the party and disposition of the Historians. But the nature of this Work admits not of such turns and disguises, as other general accounts are but too justly chargeable with; the following Trials being plain Narrations of Sayings and Facts, for the most part published by Authority of the respective Courts, or by indifferent Hands; where it happens to be otherwise, the Reader is informed of it in the Title at the Head of the Trial.
Such as are taken with fluency of Style, or luxuriancy of Fancy, may here be entertain'd with a variety of eloquent Speeches and learned Arguments on many very important subjects; tho' it must be own'd, intermixed with some others, which do not altogether deserve that character. And since Scotland is now become a part of this Kingdom, it has been thought proper to insert some of the Proceedings in that country, in which (to do that Nation right) are discovered great learning and eloquence:
(a) 4 Co. Instit. 75.
and it must be admitted, that very considerable advantages are there allowed to the Prisoner, which we in England do not enjoy; he has what Counsel he thinks fit, and a Copy of the Charge in his own language; his Counsel are permitted to inspect the Depositions against him before he is brought to his Trial; and they are so little in haste to dispatch a StatePrisoner, that the Trial often lasts some months.
Another Use of this Work, will be the doing justice to those Judges To form a and Counsel, who respectively presided or practis'd at these Trials: the right characNames of such as behav'd impartially on the Bench, without prejudicing ter of the the rightful Prerogatives of the Crown on the one hand, or betraying the Judges. legal Privileges of the Subject on the other; without bearing hard upon the Innocent, or shewing any unallowable favour to the Guilty, will by this means be remember'd with honour, and left upon record to their lasting praise and commendation.
But it has not always been the good fortune of England to have the Bench adorn'd with such excellent persons; the Reader will in the course of these Trials light upon certain periods, wherein the Judges, who ought by the duty of their place to be the great Barrier, and to act impartially between Prince and People, have notwithstanding deliver'd Opinions in direct contradiction to the known fundamental Laws of the nation, and as far as in them lay, sacrificed the Constitution and Liberties of the kingdom to the pride and ambition of an arbitrary monarch. This generally ended in the downfall of such Judges, and the Ministers, whose tools they were; the Politics of those times not being arrived at that height, to know how to influence the representative Body of the Nation: for what need could Ministers have to corrupt the Interpreters of the Law, if the Makers of it were intirely at their devotion?
Other there have been, (as the Reader will have too frequent occasion to remark) who regardless of Right and Wrong, and all the solemn Oaths they had sworn, have under colour of Law, but yet in open defiance of natural Justice, made no scruple to murder the Innocent, and by foul unwarrantable practices to acquit the Guilty, just as they received their directions from, or thought it would be best pleasing to those above them : to such a monstrous pitch of bare-faced iniquity were they arrived, that they stuck not to determine the same Point different ways at different times, making the Law a mere nose of wax, but usually turning it to the destruction of the person tried before them (b). These Volumes will impartially transmit their memory to posterity, with that reproach and infamy, so deservedly attendant upon Traitors and Murderers; and this not by general characters, which are scarce to be rely'd on, being oft according to the inclinations of the Writer, but by real Facts; their Behaviour will here appear just as it was, in its own true colours: by which the Reader, without the help of names, will easily distinguish the calm and sedate Judge, willing to hear and receive right Information, and desirous to determine according to Truth and Justice, from the hectoring bully, who, without any regard to the decency of his character, uses his authority to no other end, than to silence Reason and Truth, and by blustering and clamour to worry the Innocent to death.
The like Distinction will readily occur with respect to those, whose And Counsel. Office was at the Bar. Some he will find, pressing nothing illegal against the Prisoner, nothing hard and unreasonable (however in strictness legal) using no artifices to deprive him of his just Defence, treating his Witnesses with decency and candour; being not so intent upon convicting the Prisoner, as upon discovering Truth, and bringing real Offenders to Justice; looking upon themselves, according to that famous Saying of queen Elizabeth, not so much retained pro Domina Regina, as pro Domina Veritate (c).
(b) Sir John Hawles's Remarks on the Trial of Charles Bateman. (c) 3 Co. Instit. 79.
These will appear in a different light from others, who with rude and boisterous language abuse and revile the unfortunate Prisoner; who stick not to take all advantages of him, however hard and unjust, which either his ignorance, or the strict rigour of Law may give them; who by force or stratagem endeavour to disable him from making his Defence; who brow-beat his Witnesses as soon as they appear, tho' ever so willing to declare the whole truth; and do all they can to put them out of countenance, and confound them in delivering their Evidence: as if it were the duty of their place to convict all who are brought to Trial, right or wrong, guilty or not guilty; and as if they, above all others, had a peculiar dispensation from the obligations of Truth and Justice. Such methods as these should be below men of honour, not to say men of conscience: yet in the perusal of this Work, such persons will too often arise to view; and I could wish for the credit of the Law, that that great Oracle of it, the Lord Chief Justice Coke, (d) had given less reason to be numbered among
The Gentlemen of that Profession, whether imploy'd in criminal Prosecutions or civil Actions, are not to blame for doing their best in sifting out the Truth, and making all just Observations in favour of their Clients; yet if after having done so, they should at last find the merits of the Cause to lie on the other side, I am sure it would be no disparagement to them to desist from attempting any thing to the prejudice of Truth and Justice: for how just and reasonable soever it may be to undertake the defence of a cause while nothing appears but that it may be right, yet when in the course of the Evidence it proves manifestly otherwise, it is then high time to desert it; for they must needs think, that no Fees or Retainers will be a just Excuse, either in this world or another, for being wilfully instrumental in promoting injustice and wrong: and tho' it be no part of their province to determine either the Law or the Fact, the former of which belongs to the Court, and the latter generally to the Jury; yet if either the one or the other be misled by the artful turns and insinuations of the Pleader, or any material truth suppress'd or misunderstood by his baffling of the Witnesses, the Guilt will and ought to lie at his door.
A further Advantage of this Collection is, that it will afford frequent opportunities to the careful Reader of observing the excellency of our Laws, and the advantage an Englishman thereby enjoys above his neighbours. When I meet with an Author extolling our laws above those of other countries, and representing us upon that, as well as other accounts, as the envy of all around us, I presume it is meant chiefly with regard to Criminal Procedures for as to CIVIL SUITS, when I consider the tediousness and delays of such Suits, necessarily arising from our Methods and Forms of Law; the various Offices, and sometimes Courts, they must pass thro', before they are finally decided; the exorbitant Fees to Counsel, whereto the Costs recovered bear no proportion; the duties arising to the crown from many incidents in every cause; and above all the nicety of special Pleadings, whereby the justest cause in the world, after having with great trouble and expense been conducted almost to a period, may thro' the mistake of a letter (often occasioned by an Attorney's Clerk) be irretrievably lost, or at least turned round to begin again, and that not without payment of costs to him, who has all the while been the unjust invader and detainer of another's property: when these things, I say, are considered, it is hard to imagine, that any one can in good earnest believe, we have in this respect any great matter to boast of.
Nor can I suppose they are our ECCLESIASTICAL COURTS, which make us the envy of our neighbours: the petty but chargeable Suits, which are
(d) See the Trial of Sir Walter Raleigh, ▲. p. 1603,
there often instituted to the no small damage of both sides, only to indulge the private passions of those who institute them; the constant practice of denouncing Excommunication for the minutest contempts (e), (a punishment originally designed only for such flagrant vices, as render'd a man unfit for Christian communion, which formerly was greatly dreaded, but is now by these means slighted and despised;) and the pecuniary commutations avowedly permitted for Penances (f), are things, which will not allow me to make any such supposal.
The excellency therefore of our Laws above others, I take chiefly to As to Criminal consist in that part of them, which regards CRIMINAL PROSECUTIONS: Prosecutions. here indeed it may with great truth and justice be said, That we have
by far the better of our neighbours, and are deservedly their admiration
This might be made to appear in many particulars. In 'other Countries the Courts of Justice are held in secret; with us publickly (g) and in open view: there the Witnesses are examined in private, and in the Prisoner's absence; with us they are produced face to face, and deliver their Evidence in open court, the Prisoner himself being present, and at liberty to cross-examine them: there the Judges determine both Law and Fact; with us, if the Fact be denied by the Prisoner, it must be tried by twelve men of his own rank and condition, (h) who are sworn to go according to Truth and Evidence, and are therefore called a Jury; to any of these the Prisoner may except for just cause, and in capital Cases to a large number without cause: and unless this Jury declare him guilty of the Charge, the Judges can proceed no further against him. If the Prisoner be a peer of the land, his Trial on all Indictments for Treason, Felony, or Misprision of either, must be by other peers not fewer than twelve. In other countries, Racks and Instruments of Torture (i) are applied to force from the Prisoner a Confession, sometimes of more than is true; but this is a practice which Englishmen are happily unacquainted with, enjoying the benefit of that just and reasonable Maxim, Nemo tenetur accusare seipsum: in other countries the Criminals are often executed in private; with us always openly and in public, it being necessary to answer the end of Justice, that a public example be made of Offenders in order to deter others from the like crimes; but where the Trial and Execution are in private, it not only defeats the end of Justice, but affords an opportunity of secretly destroying innocent men, which must needs expose the subject to a variety of fears and dan
(e) Cr. Car. 196, 199. Mo. Rep. 540. Latch. 174. 204. (f) 2 Co. Inst. 489, 620. 2. Rol. rep. 384. Godolph. Abridg. p. 89. (g) 2 Co. Instit. 103. (h) Fortescue de Laud. Leg. Angl. cap. 27 & 28. (i) Ibid. cap. 22. This was the practice of the antient Civil Law. See the Fragments of Julius Paulus, lib. 5. Sentent. recept. Tit. 14. de quæstionibus habendis : Si suspicione aliqua reus urgeatur, adhibitis tormentis de sociis et sceleribus suis confiteri compellitur:-Reus evidentioribus argumentis oppressus repeti in quæstionem potest, 'maximè, si in tormenta animum corpusque duraverit.'--See also a whole Title in the Digests de quæstionibus, lib. 49. tit. 18. See Instances of those who endured these Tortures in Valer. Max. lib. 3. cap. 3. & lib. 8. cap. 4. But so absurd and unreasonable a practice was this, that even the antients, among whom it was in use, had no good opinion of it, as appears from l. 1. § 23. of the said Title de quæstionibus: Res est fragilis, et periculosa, et quæ veritatem fallit; nam plerique patientia, sive duritiâ tormentorum ita tormentum contemnunt, ut exprimi eis veritas nullo modo possit; alii tantâ sunt impatientiâ, ut in quo'vis mentiri, quam pati tormenta, velint; ita sit, ut etiam vario modo fateantur, ❝ ut non tantum se, verum etiam alios comminentur. Quintilian, declam. 18. Omnium quidem incertorum suspiciones pessimè semper a corporibus incipiunt; nec benè de cujusquam moribus illam partem corporis interroges, quæ non 'animo, sed dolore respondet.' See more to this purpose in Montaigne's Essays, Book 2. cap. 5. and Grotius's Letters, Let. 693. wherein he approves the omis sion of this practice in England.
Particularly in cases of High Treason.
And in the
provisions for the Liberty of the Subject.
gers inconsistent with the liberties of a free people. These are great and noble Privileges, which we may justly value ourselves upon, and should be very unworthy of, if we did not highly prize them.
In Cases of HIGH-TREASON the English subject has peculiar advantages: This is a Charge of a general nature, and therefore more difficult to make a Defence to (k); it subjects the offender to a severer punishment, than other crimes; the crown is more nearly concerned, by reason whereof the Prisoner has a more powerful adversary to contend with: this is the fatal engine so often employed by corrupt and wicked ministers against the noblest and bravest patriots, whose laudable opposition to their pernicious schemes those ministers are very ready to construe into Treason and Rebellion against the Prince; thereby confounding their own and the Prince's interest together, as if the one could not be opposed without the other. Our ancestors therefore thought this a case, wherein the Subject needed more than ordinary assistance; lest therefore too great a latitude should be left to the arbitrary determinations of a Judge, who is the creature of the crown, they took care to particularize the several species of Treasons by an express law (1): and to guard against all forced constructions and innuendos, it was by the same law farther provided, that all Treason should be proved by some manifest plain act or deed; and that no innocent person might be in danger of suffering thro❜ the perjury of a single witness, it was afterwards provided (m), that none should be convicted without two positive Witnesses.
Nor does our Law excel others only in defending the Life of the subject against any injurious attacks, but also in its care and concern for the Liberty and Freedom of his person. How absolute suever the sovereigns of other nations may be, the king of England cannot take up or detain the meanest subject at his mere will and pleasure (n): it is one of the privileges confirmed by Magna Charta (0), that no man shall be restrained of his liberty, but by the law of the land; that is, says lord Coke (p), by Indictment or Presentment of good and lawful men, or by the king's Writs out of his ordinary courts of justice (q), or by lawful Warrant. Now every lawful Warrant (r) must be grounded upon oath; must plainly and specially express the cause of commitment (s); must be under the hand and seal of one, who is authorized to do it, expressing his office, place and authority (t), whereby he committeth, and must conclude," until he be delivered by due course of law," and not " until further order," or with such like conclusions. Nor has the law only prescribed what shall be necessary to a legal Commitment, but it has also provided divers Remedies (u) in case any one should be illegally committed, or detained; the party injured may have an Action or Indict ment founded on Magna Charta, an Action of false Imprisonment, a Writ de homine replegiando, and a Writ de odio et atin (x).
But so precious is the Liberty of a man's person in the eye of the law, that none of these Remedies was thought sufficient, not giving so speedy
(k) How great a latitude was taken in this matter may appear from the antient Law-Books, where the lying with the nurses of the king's children, or the killing a man sent on an errand by the king, were adjudged Treason. 1 Assiz. 22 Ed. 3. pl. 49. Briton. p. 43.
(4) 25 Edw. 3. Stat. 5. cap. 2. That this was the occasion of this Law appears from the Petition of the Commons on which it was founded, wherein they complain the Justices did adjudge several to be Traitors, for causes which they did not own to be Treason. This Petition is entered in the Parliament Rolls of that year. No. 171.
(m) 5 & 6 Edw. 6. cap. 11. Deut. cap. 19. ver. 15. (n) 2 Co. Instit.
(u) 2 Co. Inst. 55.