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who dispensed blessings by his life, of any society, at their crecting the and planned them for posterity.”
forms of government under which they The Doctrinesinculcated through
are contented to live, and at their no
minating the persons to whow they comout this work are the foundation
mit the right of administering justice 10principles of all good government. ward, and over themselves, and of withThe author by reasonings and lan- standing and avenging injuries offered guage the most forcible and convin- thein by others, to enlarge and extend cing-illustrates the doctrines of the power of those whom they constitute The Sovereignty of the People-- Their
their rulers, beyond the limits and
boundaries hy which God hath stated absolute right to form a government,
and confined magistrates in the charter and in case of necessity, to reform, of nature and revelation. Though peoalter, and new model that govern- ple boib may then, and afterwards ament.-The Right of the people and bridge theinselves as they think meet, parliament of Britain lo resist and in things under their own disposal, and depose their Kings for evil govern either contract or enlarge the ruler's ment. His proofs and illustrations power, in reference to what they liave
a right to retain or depart from, for the are drawn from reason, and from
'real or imagined benefit of the commuhistory, sacred and profane. The nily, yet they can no ways interpose in whole work is replete with sound in the disposal of he rights which belong struction, and written in a plain unto God, and which he hath incombut energetic style, the best suited municably reserved to himself; nor can to the subject.
they confer those measures and degrees ill only allow us to of authority upon those whom they elect Our limits will only allow us to
and advance to magistracy, which God make one or two extracts from this
bathi antecedently precluded the one admirable work.
from bestowing, and the other from reOn the subject of government in ceiving. For example, no body, or so. general, the author expresses him. ciety of men, can transfer a power unto self as follows:
those whom they select and set a part « Government in general, as ordained
from among themselves to be rulers over and instituted by Göd, is circumscribed the coinmunity; by virtue whereof those
vested with magistratical authority, can and limited by him to be exercised ac
withdraw their subjects from their allecording to the laws of nature in subser
giance to God, or act arbitrarily in previency to his own glory, and the benefit of mankind. All rulers are confined by
scribing and imposing what religion they the Almighty and supreme sovereign,
please, or destroy the meanest person, to exert their governing power, for the
saving upon a previous crime, and a
just demerii." promoting his service and honour, and J
" Magna Charta being only an abridg. io exercise their authority for the safety,
!ment of our ancielit laws and customs, welfare, and prosperity of those over
the king that swears to it, swears to whom they are established. Though
them all, and is not admitted to be the there were no previous compacts and
interpreter of it, or to determine agreements between princes and people
what is good or evil, fit to be observed as to these, yet princes would be obliged
or annulled in it, and he can' have no to observe thein, for as much as they
more power over the rest. This having are settled and determined by the law
been confirmed by more parliaments and appointment of the divine legisla
Wan we have had kings since that time, tor, and of the universal sovereign.
the same obligation niust still lie upon Whosoever therefore refuseth to govern,
them all, as upon Jolin and Henry, in in subordination unto, and for God
wliose time that claiin of right was comand in order to the protection and be
piled. We know the value our ancesnefit of the community, ceasech to an
iors set upon their liberties, and the swer the ends unto which inagistracy
courage with which they defended ihem, was instituted, and for which rectoral authority is established over, and among
and we can have no better example to
encourage us, never lo suffer them to men. Nor is it in the choice or pormor be violated or dumninished.”
Ou the Power and Duties of Juries, consist, in every country, of the most
and on the Criminal Lars of Eng public-spirited and approved, of three land. By Sir R. Phillips. [Con
competent persons named by the crown;
and they would consequently fill their tinued from p. 261.]
office with more energy, and with more The second chapter of this work regard to public opinion, than they relates to the striking and summon- have usually done for several centuries ing of juries. The following remarks pasti,
" Jurors must be persons of honour on this important part of the sub
and fair reputation ; free, in executing ject are well worthy of attention.
their office, from all kind of obligation, “ Although honourable and public- affection, consanguinity, or prejudice; spirited men will gladly avail themselves the peers or equals of the parties inteof every opportunity to render them- rested ; of nature age and sound underselves useful, in quality of jurymen; yet standing; and must never have been the law, to prevent too frequent a re- outlawed, attainted of treason, or concurrence of the same names in juries, victed of felony or perjury.” and for the ease of the public, bas pro
Chapter the third treats of grand vided, that no person shall be summoned on juries, who in the counties Pala
juries, whose functions are thns des tine, or in Rutland, have served within
tailed. one yeur ; in all other counties, within “A Grand Jury is one of the most two years; and in Yorkshire, within ancient and respectable tribunals known .four years. In causes between party to the constitution, and its members and party, in Middlesex, a jurymai are usually gentlemen of the first consemay serve within two terms, or vaca- quence and best fortune in their county. tions; but in defiance of the statute the : « They stand in the situation of umsame special jurymen serve for their gui- pires between the accuser and the acnea per trial, in almost every cause in cused, and are thus able at all times to the courts at Westminster and Guild protect the weak against the strong, and hall; and sheriffs summon thern, although the persecuted against persecution. liable to a fine of five pounds in every “ Their precise estate is not defined instance..
by any statute ; but they ought to have " It was an admirable 'provision of freeholds at least equal to petit jurythe constitution of Alfred, that juries men; and in striking them, it is custoshould be struck by the sheriffs, who mary to summon none but such as have were annual officers chosen in their the joint additions to their names of counties by popular election. Except esquire and freeholder. in London and Middlesex, this right « If I may indulge in an hypothesis was lost to the people in the reign of on a subject involved in so much obscuEdward the Second; and sheriffs, in rity, I should presume that, in their inconsequence, are officers nominated and stitution, grand juries were subsequent chosen by the crown, or its ininisters; to petit ones. A grand jury appears so that in fact, juries also, are now, in from its nature and object to be a rea certain degree, in the nomination of finement or addition to the trial by the crown, through its sheriffs. As this petit jury, and is probably coeval with check on the influence of the crown is the division of the kingdom into counin critical times of the utmost conse- ties and hundreds. May we not supquence to public liberty, and was a va- pose that petit juries in barbarous ages luable popular right, not abrogated by may, bave been so far over-ruled by the conquest, I conceive the question judges as not to continue their intended of its resumption may deserve the notice barrier against oppression. We know, of a patriotic parliainent. The crown, that in the time of Alfred a great numas heretofore, might nominate three ber of judges were hanged; and the persons for every county; and the she reason given by the author of the Mirriff for the following year might be cho- rour for these severities, was their hasen from among the three by a ballot ving over-ruled or rendered of no effect, in the grand and Petit juries assembled the verdicts of petit juries : bence the at the next following assizes ; at which, necessity, and perhaps the origin, of also, the sheriff elect might take the grand juries. They secure inuocent per oaths of office, Sheriffs would thus sons, in the first instance, from being
exposed to an ignominious trial, and law; and if any thing be done to the preserve them from the caprice of judg. contrary, it shall be redressed, and boles. They now form :un integral, esseni- den for nore. tial, and indispensable part of the jury “ 28 Edw. 3, cap. 3. No man shall system.
be put out of land, nor taken, por im“ Had the revolutionary tribrnal of prisoned, nor disherited, nor put to France proceeded by the previous ar death, without being brought to answer raignment of a grand jury, instead of by due process of law. the information of a public prosecutor, “ 42 Edw. 3, cap. 3. No man shal! not one in fifty of those who suffered by be put to answer, witbuut presentment the guillotine would even have been put before justices, or matter of record of on their trial.
due process, or writ original, according “ As grand juries are the lawful guar- to the ancient law of the land; and if dians of the liege subjects of this realm any thing be done to the contrary, it against vexatious prosecutions, it must shall be void in law, and held for error, be evident, that criminal proceedings “ See also 11 Hen. 4, at p. 80. by motion, suggestion, process, infor- . “ 16 Car. 1, cap. 10, § 5. Neither mation, or in any mode except through his Majesty, nor his privy council, have the medium of a grand jury, are con any jurisdiction, power, or authority, trary to the spirit of our constitution. by English bill, petition, articles, libel, Grand juries are mockeries, if they do or any other arbitrary way whatsoever, not serve as general and universal pro- to examine, or draw into question, detections against arbitrary and capriciuns termine, or dispose of, the lands, or prosecutions. They have universal pow. goods, of any subjects of this kingdom ; ers, or they are useless, and not what but the same ought to be tried and dethey profess to be. No statuite can, termined in the ordivary courts of jushowever, be found which dispenses with tice, and by courts of law." them; and language has lost its power, " It has given me great pain to obif the following statutes are not as im serve, that the late bill for declaring, perative as laws can be made, to secure say rather for restoring, the rights of to the subject the unbounded protection juries in matters of libel, speaks of inof Grand Juries."
dictments, and also of informations. It “ Magna Charta, 9 Hen. 3, cap. 29. can scarcely, however, be contended, No freeman shall be taken, or impri- that such incidental recognition of a soned, or disseized of bis freehold, or practice renders it legal, and does away of his liberties or free customs, or be the force of all our charters of liberty. outlawed, banished, or otherwise de. As the practice was common, and alstroyed; nor shall the king pass, or ex- lowed in the courts of that day, it was ecute upon him, but by the lawful judg- necessary, perhaps, in order to guard ment of his peers, or by the law of the the subject on a point common to both land. The king shall sell to none, or modes of proceeding, to name both, deny, or delay to none, right or justice. without meaning to declare, or even to
" 25 Edw. 1, cap. 2. If any judg- consider their legality. ment be given contrary to the great “ Long practice, which is one of the Charter, it shall be undone and holden justifications set up for dispensing with for nought.
grand juries, might lead us to consider “ 5 Edw. 3, cap. 9. No man shall informations as part of tbe common he attached by any accusation, nor fore law, provided they were compatible judged of life or limb, nor shall his lands with the constitution, and there were or goods be seized into the king's band, not so inany declaratory statutes altoagainst the great Charter and the law gether at variance with the practice, of the land.
and prohibitory of it. Lord Hale, in “ 25 Edw. 3, stat. 5, cap. 4. None his pleas of the crown, observes, “ that shall be taken by petition or suggestion in all criminal cases the most regular to the king or his council, unless it be and safe way, and that the most conby indictment of lawful people of the sunant with Magna Charta and other neighbourhood, or by process made by statutes, is by presentment or indictwrit original at the common law. And ment of twelve sworn men;" and a none shall be put out of his franchises, higher authority need not be quoted. I or freehold, unless he be duly brought have, indeed, been gratified to perceive, to answer, and forejudged by course of even in our own days, in which liberty
kąs been rendered decrepid under the thority on which they are bound to reiron sway of revenue laws, that Lord ly; and if he does bis duty ably and Chief Justice Ellenborough has repeat- completely, there will be few occasions edily refused to grant rules against par- for subsequently disputing the yerdict lies, on the ground that ihe matter of an honest and sensible jury. charged was properly within the cogni. " As neighbours of the parties, juries zance of a grand jury.”
are often more competent to decide Chapter the fourth treats of the
than judges : they are also more in num. calling, challenging, and swearing of
ber, and they are bound by their par
· ticular oath in each cause. Again, the the Petit Juru, and of the forms of ascendawcy of their influence excites no trials ; and chapter the fifth, of the public jealousy; because the same set judges. Events which are conti- of jurymen are seldom on a jury; while nually incurring in our courts, more the permanent ascendancy of a judge particularly on ex-vtfcio informa would be suspicious and dangerous. If tions, will enable our readers to it judge agree with the jury, the inter
position of his opinion is useless; and judge of the propriety of the follow
if he differs from them, it is unnecessary ing remarks.
to give bis opinion ; because the jury o Juries should listen with attention cannot help seeing with their own eyes, to the judge's exposition of the law, and and they are bound by their oaths to they should hear with respect his obser- decide on their own convictions. Fur: vations on the evidence; although to ther, if a jury were attaiuted for giving decide on the evidence is not bis busi- a false verdict, it would be no valid uess, but theirs ; yet luis profession, plea of innocence, or bar of the penalrank, experience, and office, demand ties of conviction, that they followed their attention, and a reasonable degree the direction of the judge, and from senof deference.
timents of courtesy and deference, yield« The jury are to decide on their ed their own opinions to the more enown convictions, in regard to the facts lightened judgment of the court, adduced in evidence, combined with " If judges were religiously to refrain the information given them by the judge, from giving a colour to the evidence, relative to the bearings of the law on nothing could be more desirable to the
the case. It is pot an essential part of jury than to have it fully recapitulated · the duty of a judge to sum up the evi- from the bench; but iť a judge inter
deuce; but his reasonings ought to be pose bis own opinion (and it is difficult received respectfully, yet not witbout for him to avoid doing so,) it is likely great reserve and jealousy (if wholly on to make an improper impression on the one side), the jury being, by the con- jury, because it is most unpleasant to stitution, the sole judges of the evidence. jurymen to give a verdict in apparent Nothing but gross ignorance in a jury, variance with the expressed opinion of palpable inattention, or mcapacity to the judge ; and when a juryman feels take ootes of the evidence, can render doubtful, he is apt to quote the opinion such uterterence necessary.
of the judge, and excuse himself to his “ Juries are bound by respect to own conscience, by resting on that opithemselves, and by their obligations to nion rather than on his own conviction, the rights and liberties of their country, or what is worse, rather than take any to discountevauce all partial observa. trouble to investigate the subject." tions of the judge on the evidence. With The too common practice of browa reference to the bearings of the law, jud- beating witnesses in a court of jus. ges cannot, however, be too explicit, or
tice, is reprobated in the following juries too attentive. They are unavoidably ignorant of law, and in this respect terms. must receive instruction from the judge, « Many persons who attend a court and rely on his knowledge and perspi- of law to give honest evidence before cacity for so much of their verdict as the public, are of retired habits of life, involves a mixture of the law with the are unaccustomed to deliver themselves fact. The observations of the counsel before an assemblage of people, are tenon both sides cannot fail to assist them der of ibeir characters, are fearful of
in acquiring legal views of the question committing themselves in terms or in - before them ; but the judge is an au- substance, are unused to answer to iplevant.
terrogatories, are deeply anxious lest in the witness for withholding the truth. they should from any indiscretion or in- Counsel themselves, also, are frequently advertency prejudice the truth, and are misled by their clients, in the misrepreagitated even to terror at the coleinnitysentations given them of the characters and heavy responsibility of their situa- of witnesses. Again, the timidity and tion. The license of speech assumed embariassment of witnesse's frequently towards witnesses by counsel, the latin creates prejudices against thein in courts tude taken in cross-examination, and of law, and is ascribed to the workings the insulting, opprobrious, and Aippant of a bad conscience, rather than to its insinuations and assertions, of which true cause. · they often find themselves the subject, " It is, therefore, the duty of candid render the task of witnesses as onerous and intelligent men in a jury to protect and painful as though they were them witnesses, and to obtain trom them the selves plaintiff or defendant, or the ob- evidence which is likely to secure a just jects of the trial, rather than the priso- verdict. When they see a witness ner at the bar! A witness is sworn to forced into contradictions loy the arts declare the truth, and the whole truth, and sophistry of counsel, they ouglit yet few witnesses are hardy enough to theinselves, in a candid and manly way, venture beyond monosyllabic answers to put two or three leading questions, to questions often very trifling and irre so as to come at the substance of the
evidence nieant to be given ; and they 6 Nothing is more difficult than to ought not to suffer a witness to leave sift out the whole truth from parole evi- the box, if he has been entrapped into dence in public trials, as they are now contradictions, and has, in a state of conducted. Either the witness is terri- mental embarrassment, made adinisfied, 'and says what he oright not to say, sions not consonant with his evidence and omits to say what be ought ; or if in chief. Such conduct in jurymen free and honest in his communications, would render the pernicious practices he is entangled and entrapped by the of the bar of no cffect, would conseopposing counsel, and his declarations quently secure the testimony of witperverted; or if he has the hardihood nesses from perversion, and essentially not to suffer this, he finds himself in- serve the cause of justice. sulted, and the jury influenced against “A method of ascertaining the truth him.
by parole, evidence, infinitely superior “ Let is suppose a modest but not to that of badgering and insulting witunintelligent witness, who perhaps never nesses, would be for the jury, in all before saw the inside of a court of law, Trials of importance, or when there is just placed in the witness-box, and a- reason to suspect any collusion, to rebashed at being in the presence of so quest that none of the witnesses may be many persons, many of them of superior allowed to be present in court, except distinction. He trembles, as well at the the one under examination. The truth novelty of his situation, as at the re- would thus be elicired in all cases; and sponsibility wlich appertains to every it would be a great reform in our courts thing he may say at a time when adven- of judicature, if it were made a standtitious circumstances tend to overpower ing rule, that the witnesses who had his understanding and fetter bis utter-' been examined should be kept apart ance, the consciousness of which dou- from those who were to be examined, bles his embarrassment. Should it be by an officer of the court. It is, howhis ill-fate to be cross examined by a ever, in the power of any jury to request snarling and illiberal counsel, it is twenty this arrangement during a term or'sesto one but he involves himself in con- sions, or in any trial in which they are tradictions which he cannot unravel, and engaged. leaves the box under surmises and in « The best evidence the nature of putations, which render bis ' testimony the case will admit must he produced, of little avail in the cause, and which for if it appear that better evidence ha'ng about him during the remainder of might have been brought forward, The his days.
circumstance of its bring withheld at« Judges, from sentiments of proses- fords a sirung suspicion that it would sional delicacy, do not often interfere have prejudiced the pariy who wiina to protect a witness; and it may be pre- holds 11." sumed, that they often give counsel cre. On the chapter respecting the ver. dit for knowing of some sinister motive dict, there are many observations