a relief as the urgency of the case requires; another Remedy is therefore provided, viz. the Writ of Habeas Corpus (y), which is called festinum remedium. By this Writ the gaoler is obliged immediately to bring the body of his prisoner before the Lord Chancellor, or one of the twelve Judges, and to certify by whom and for what cause he stands connit ted; whereupon the Lord Chancellor or Judge is requir'd (unless he be legally committed for an offence not bailable by law) to discharge or bail him, except in case of Treason or Felony plainly and specially expressed in the Warrant (z); and even in those cases, that the innocent may not be worn and wasted with long imprisonment (a), the prisoner must be brought to his trial within a reasonable time; for if he be not indicted the next term or sessions after his commitment, having duly enter'd his Prayer, he shall on the last day of the term or sessions be admitted to bail, unless it appear to the Court upon oath, that the Witnesses for the king could not then be produced: and then, if he be not indicted and tried the second term or sessions after his commitment, he shall be quite discharged (b).

But because all these precautions in favour of liberty may be rendered useless by sending the Subject to remote or private prisons (c), whereby he may lose the benefit of the king's Commission of Gaol Denvery (d), and the king's writs be rendered ineffectual for want of knowing whom to direct them to (e); to prevent this inconvenience, the law has further provided, that no subject of England shall be sent prisoner into any part beyond the seas, either within or without the king's dominions (f); nor shall any be compelled against his will to serve the king out of the realm, lest under pretence of service, as ambassador or the like, he should be sent into real banishment (g): nor can any be regularly imprisoned within the realm in any other place than the common County Gaol or other publick accustomed gaol (h); for which reason a gaoler cannot be authorized by any warrant to deliver his prisoner into the custody of an unknown person (i): Nor can any new gaol, according to the opinion of lord Coke (k), be erected, but by act of parliament; one statute (1) ordains, that none shall be imprisoned by Justices of the Peace, (some say this extends to all other judges and justices, (m) but in the common County Gaol, saving to lords and others, who have gaols, their franchises.

Some will be ready to object, if these laws were in force, that a Subject shall not be compelled to serve the king out of the realm, how comes it to pass that divers subjects (not only mariners, but others) have been taken up by virtue of Press-Warrants (n), and by force put aboard a ship and carried beyond sea? If it be not lawful to commit to any but antient accustomed gaols, how comes it about that so many persons have been taken up by messengers (0), who have imprisoned them in their own houses, detaining them there not for two or three days only, (the time allowed by law to take their examinations) (p), but for weeks or months, thereby making gaols of their houses, though they have neither the grant of such a franchise, nor any act of parliament to make them so? These are questions to which I will not undertake to give a satisfactory answer; but shall leave that to others, who are more nearly concern'd and better able to do it: I can only say, that whatever may in

(y) 2 Co. Inst. 55. (z) 31 Car. 2. cap. 2. § 2 & 3. (a) 2 Co. Inst. 315. (b) 31 Car. 2. cap. 2. § 7. (c) This was complained of by the Judges in the 34th of Eliz. 1. Ander. Rep. 297. (d) 2 Co. Instit. 43. 315. Cro. Eliz. 830. (e) 2 Co. Instit. 53. (f) 31 Car. 2. cap. 2. § 12. (g) 2 Co. Instit. 47. (h) 9 Co. Rep. 119. b. (i) 2 Co. Instit. 53. How a prisoner may lawfully be removed, see 31 Car. 2. cap. 2. (k) 2 Instit. 705. (1) 5 Hen. 4. cap. 10. (m) Co. Instit. 43. (n) See 16 Car. 1. (0) 5 Mod. Rep. 79. (p) Cro. Eliz. 830.

69.

Further provisions in cases of Treason.

fact have been practised, I do not know that such practices have ever had the sanction of one judicial determination, and for my part must confess myself unable to reconcile them to the laws of the land.

It must be owned that the guards and fences of the Law have not always proved an effectual security for the Subject; the Reader will in the course of these Trials find many instances, wherein they, who held the sword of justice, did not employ it as they ought, to the punishment of evil-doers, but to the oppression and destruction of men more righteous than themselves. Indeed, it is scarce possible to frame a Body of Laws, which a tyrannical prince, influenced by wicked counsellors and corrupt judges, may not be able to break through; they may sometimes check, but will never be able to stop the career of violent and furious men The Law itself is a dead letter, Judges are the interpreters of it, and if they prove men of no conscience nor integrity, will give what sense they will to it, however different from the true one: and when they are supported by superior authority, will for a while prevail, till by repeated inquities they grow intolerable, and throw the State into those convulsions, which may at last end in their own ruin. This shews how valuable a blessing an upright and learned judge is, and of what great concern it is to the public, that none be preferr'd to that office, but such whose ability and integrity may be safely depended on: Ignorantia judicis est calamitis innocentis (q).

However, amidst all the mischiefs caused by the arbitrary proceedings of these wicked and unjust Judges, there is one good effect has follow'd from them; it is to them we owe those additional provisions, which have been since made for the security of the Subject:~~ Ex malis moribus bonæ oriuntur leges (r); Leges egregiæ apud bonos ex delictis aliorum gignuntur (s). In all cases of Treason, wherein the crown is more immediately interested, the party accused may now demand a Copy of the whole Indictment (t), five days at least, and of the names of the Jurors (2) two days at least before his trial; he has a right to the assistance of counsel (x), not only in matters of law, but in matters of fact; he may now have the benefit of the usual process (y) to compel the appearance of his Witnesses; who, when produced, are to be examined on oath (2), as well as those on the part of the crown (this last privilege has been since (a) extended to all treasons and felonies). Each species of treason must be prov'd by some overt-act (b), and there must be at least two witnesses to each species (c). If the accused be a peer, not only some pick'd out of the whole body, but all the peers must be summoned to the Trial, at least twenty days before (d).

There are other Alterations (e) made in favour of the Subject, which the legislature has not thought fit should take place during the life of the present Pretender. After his decease no Attainder for Treason will work a disherison of the heir, or affect any other right, than only that of the offender during his life: the prisoner will then be entitled to have a List, not only of the Jury, but of the Witnesses to be produced against him at the Trial, with the addition of their respective professions and places of abode, delivered to him along with the copy of the Indictment, in the presence of two witnesses, ten days before his trial. The first of these Alterations being to mitigate the punishment of those, who shall by the law be adjudged guilty, might be thought an unseasonable relaxation, while there should be any apprehensions of immediate danger: but

(q) 2 Co. Instit. 30. (r) 2 Co. Instit. 161.

(s) Tacit. Annal. lib. 25. (t) 7 Gul. 3. cap. (z) Ibid. § (a) 1 Ann. (d) Ibid. § 11.

(y) Ibid. § 7.

§ 20. Some instances of this kind are there mentioned.
3. § 1. (u) Ibid. § 7. (a) Ibid. § 1.
1. Thus it ought always to have been. See 3 Co. Instit. p. 79.
cap. 9. § 3.
(b) 7 Gul. III. cap. 3. § 2.

(e) 7 Ann. cap. 21.

(c) Ibid. § 4.

why the others should be defer'd so long, which are intended only as the proper guards of innocence against violent prosecutions, I will not pretend to guess; for the heinousness or mischief of the crime charged is so far from being a reason, why the prisoner should want assistances, that it is a very strong reason to the contrary: it being as easy a matter to impose a false charge of a great, as of a small crime.

These are some of the Privileges of a British Subject, which no other subject in the world can boast of. But after all it must not be said, that

our Laws will admit of no Alterations for the better.

1. Even in that darling and deservedly esteem'd Privilege of being Observations tried by JURIES, some change might, I was going to say, ought to be on Juries. made the law requires, that the twelve men, of which a Jury consists, shall all agree before they give in a Verdict; if they don't, they must undergo a greater punishment than the criminal himself; they are to be confin'd in one room without meat, drink, fire or candle, till they are starv'd. It would be pretty hard to assign any tolerable reason for this usage if it has seldom or never happen'd, I'm afraid it has sometimes been prevented only by the unjust compliance of some of the Jurors against their own consciences. For however plain some cases may be, others there are, wherein they cannot avoid differing in their judgments; nor do they deserve any censure for so doing; many men, many minds; all can't see things in the same light. To what end therefore are they to be restrained in this manner? It may indeed force them to an outward seeming agreement against the dictates of their consciences; but can never be a means of informing their judgment, or convincing their understanding. I have known, when a Juror being afterwards asked, how he could join in such an unjust Verdict, could give no better reason for it, than that the others were of that opinion; which, I fear, is the best reason a great many are able to give.-If it be said, that otherwise one stubborn fellow may stand it out against all the rest, even contrary to the convictions of his own mind, it is very true he may do so; and if his body be as stubborn as his mind, starve them out too. But why then is his voice regarded? Why can't the others give a sufficient Verdict without him? Or, if a man must not be convicted without the agreement of all, why then is not the Prisoner acquitted, when they can't all agree? But why must the Jurors be compelled to an agreement one way or other? After all, a forced agreement (as all agreements procured by restraint are) is no better than none. If the consent of him, who stands it out against the rest, be of any regard, it ought to be free; if of none, then why can't a Verdict be given without it? If twelve must agree, the better way would be to have twenty-three on a Jury, and the Verdict be given by the majority; for sure 'tis an odd way of deciding a cause, that it should be left to the determination of him, who can fast the longest. But suppose it should be thought requisite, that two-thirds should be of a mind, and if so many could agree to find the Prisoner guilty, he should be convicted; and if they did not, he should be acquitted: would not this be a sufficient security for innocence ? Sure it would be much better to make a provision in case of non-agreement, than by forcible methods to extort the appearance of one; for it is the same thing to the prisoner, whether he be convicted without the concurrence of all, or by a concurrence which is not sincere but forced.

2. Another thing not to be counted among the Excellencies of our On the proLaw is, the Indictments and other Proceedings being in the Latin ceedings being in Latin. tongue. Every body knows, that not one prisoner in a great many understands that language; and tho' the Indictment is generally explained to him in the vulgar tongue, yet it is to the original he must take his Exceptions, and upon that the arguments must be founded. In the days of Oliver Cromwell all Proceedings were in the vulgar tongue;

On the form of
Indictments.

In blasphe

mous

and tho' it has not been thought proper to continue a practice introduced by an Usurper, yet if the thing be really fit and right, it matters not, who introduced it: fus est et ab hoste doceri. The same might be said with respect to the Writing it in a peculiar hand, not generally understood. It is a maxim in Law, Ignorantia juris non excusat ( e ); ignorance of the Law is no good plea; it is indeed necessary that it should not, for if it were, the laws. would always be evaded by a pretended ignorance; but then it must be very unreasonable to use any 'methods, which tend to conceal that law, and keep the people in ignorance of it: Misera servitus est, ubi jus est vagum aut incognitum (ƒ). The inconvenience of this will appear more plainly, if we consider that every Indictment must be assented to by a Grand-Jury; and another Jury must afterwards declare whether the Charge therein contained be true or not. Now how can it be expected they should declare their consent to what they cannot understand? So that I verily believe, the greater part may very safely return Ignoramus to every Bill that comes before them.

3. Here it may not be amiss to take notice of one thing relating to the Form of our Indictments. It is very common to insert words, which are never intended to be proved: as for instance, the Words vi et armis (g) in Indictments for writing or publishing Libels, and in many other cases, where there is no pretence or colour of truth in them; e. g. Juratores præsentant, quod J. S. VI ET ARMIS falsò et malitiose scripsit quendam tibellum (h); which not only is an absurdity in the nature of the thing, but tends to insnare the consciences of Jurymen; who in giving a general Verdict against the Defendant, do not always consider whether that part of the Indictment be proved. When a Juryman gives a general Verdict against the Defendant, he does in effect declare upon oath, that he believes the entire charge as laid in the Indictment, to be true; how therefore can he find a man guilty generally, when there is one part of the charge, which he either believes to be false, or at least has no reason to believe to be true? It is said that these are words of course; if they be, yet still they have a natural and proper meaning (else why are they inserted ?); and if they are not true, I don't see how any one can upon oath honestly declare they are, unless it can be thought an excuse for giving a rash (not to say a false) Verdict, that it is a thing of course. The words of course are generally the most material words in an Indictment; proditorie (i) is a word of course in an Indictment for Treason, burglariter (k) in Burglary, and felonice (1) in Felony; but if any of those words be omitted in their respective cases, the Indictment will be naught.

It is greatly to be feared, that Jurymen do sometimes overlook the most essential Words of an Indictment, under the notion of their being words of course. Thus in the case of a blasphemous Libel, it is custo mary to insert the words falso et malitiosè scripsit, &c. and indeed they are the very gist of the Indictment, and absolutely necessary to constitute the offence: for as no words can be Blasphemy (i. e. a reproachful

(e) Digest. lib. 22. tit. 6. De juris et facti ignorantia, 1. 9. Plowd. Com. 343. (f) 4 Co. Instit. 246. 332. This Grievance is since remedied by the 4 Geo. 2. cap. 26. by which it is enacted, That all Proceedings shall be in English, and wrote in a common legible hand and character, and in words at length. See also 6 Geo. 2. cap. 14.

(g) These words are not necessary in these cases. See 37 H. 8. c. 8. it is therefore the more inexcusable to insert them, when they are not true.

(h) See the Indictments of Francis Smith, and of Laurence Braddon, 2 Lev.

221.

(i) 3 Co. Instit. 15. H. P. C. 11.
(l) 5 Co. 121. b. Cro. Eliz, 193.

(k) 4 Co, 39. b. Cr. Eliz. 920.

reflection upon God or Religion) which are true, for Truth can be no reflection on the God of Truth; so no opinions, however erroneous, can merit that denomination, unless uttered with a wicked malicious design of reviling God or Religion (m). And yet how often have persons been found guilty upon these Indictments, without any proof either of the falshood of the positions, or of the malice of him who wrote them? Nay sometimes, when there is a great deal of reason to think they were published from no other principle, but a sincere love and regard for Truth? These are things not always sufficiently attended to by Juries; it often satisfies them, if the Defendant be proved to have done the fact (i. e. wrote the Book) whether with the circumstances falso et malitiosè, as charged in the Indictment, or not; and yet when the Defendant comes to move in Arrest of Judgment, that what he has done cannot amount to Blasphemy, because it was not done with an evil intent; he is then told, that that is found by the Verdict, and must be taken to be true; and so indeed it must: but then this should be a caution to Juries, how they find a man guilty of an Indictment generally without due proof of every part of it; since every thing, which was proper for their consideration, will after verdict be supposed to have been considered by them, whether in reality it was so or not.

Thus in the Case of defamatory Libels, or of Scandalum Magnatum, and defamawhen the word falso is inserted, the Defendant ought not to be found tory Libels. guilty, if the assertion be true. Whether it be necessary to insert the word falso, is another question, (tho' I believe it would be difficult to maintain an Indictment without it;) yet certainly where the Indictment charges a man with falsly writing a Libel, he cannot justly be found guilty of that Indictment so laid, if the words be true.

4. Hitherto the Law allows not a copy of the Indictment, nor of the On Trials for names of the Jurors, nor the assistance of Counsel (n) as to matter of Felony. fact on any Indictments for FELONY, yet it is the opinion of many it would be never the worse if it did; for it seems very strange to allow a man these assistances in defence of his property, and deny them to him, when his life lies at stake. Perhaps it will be said, that the prisoner would by these means be enabled to make captious Exceptions to the proceedings, whereby public justice might be either protracted or evaded; but this objection would be removed, if the law did not allow of such exceptions; for either they relate to the merits of the cause, or they do not; if they do, they are not captious, but he ought to have the benefit of them; if they do not, there will be no wrong done in disallowing them..

But still there is one reason why, as the law now stands, the Prisoner ought not to be wholly deprived of the means of making even these captious Exceptions; and that is, because otherwise he may be brought into jeopardy of his life divers times for one and the same offence, a thing very unreasonable in itself, and contrary to the Maxims of Common Law (0); for if he be found Not Guilty on a faulty Indictment, his Acquittal shall avail him nothing, but he may still be indicted again for the same fact. This is founded on a supposition (p), that his life was in no danger on the first Indictment, because of the Exceptions which might be taken to it; and yet it is apparent, that the generality of prisoners, unless they may be informed by counsel of such Exceptions, and advised how to make them, are like to be but little the better for them.

(m) See Reformat. leg. Ecclesiast. de Blasphemia, cap. 1. Blasphemia contemptu contumelias in Deum projicit, et iracundia.' See also Whitlock's Speech in behalf of James Nayler, vol. 2. p. 273. Blasphemy is crimen malitiæ.' (n) See Whitlock's Mem. p. 433.

(o) 4 Co. 40. a. 47. a.

(p) Ibid. 45. a.