In cases of high treason, whereby corruption of blood may ensue, (except treason in counterfeiting the king's coin or seal) or misprision of such treason, it is enacted by statute 7 W. III. c. 3. first, that no person shall be tried for any such treason, except an attempt to assassinate the king, unless the indictment be found within three years after the offence committed: next, that the prisoner shall have a copy of the indictment, (which includes the caption) but not the names of the witnesses, five days at least before the trial; that is, upon the true construction of the act, before his arraignment; for then is his time to take any exceptions thereto, by way of plea or demurrer : thirdly, that he shall also have a copy of the panel of jurors two days before his trial: and, lastly, that he shall have the same compulsive process to bring in his witnesses for him, as was usual to compel their appearance against him.

When the trial is called on, the jurors are to be sworn, as they appear, to the number of twelve, unless they are challenged by the party.

Challenges may here be made, either on the part of the king, or on that of the prisoner; and either to the whole array, or to the separate polls, for the very same reasons that they may be made in civil causes. Challenges upon any of the foregoing accounts are stiled challenges for cause; which may be without stint in both criminal and civil trials. But in criminal cases, or at least in capital ones, there is, in favorem vitæ, allowed to the prisoner an arbitrary and capricious species of

challenge to a certain number of jurors, without shewing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous.

This privilege of peremptory challenges, though granted to the prisoner, is denied to the king by the statute 33 Edw. I. st. 4. which enacts, that the king shall challenge no jurors without assigning a cause certain, to be tried and approved by the court. However it is held, that the king need not assign his cause of challenge, till all the panel is gone through, and unless there cannot be a full jury without the persons so challenged. And then, and not sooner, the king's counsel must shew the cause otherwise the juror shall be sworn.

The peremptory challenges of the prisoner must however have some reasonable boundary: otherwise he might never be tried. This reasonable boundary is settled by common law to the number of thirtyfive; that is, one under the number of three full juries.

If, by reason of challenges or the default of the jurors, a sufficient number of jurors cannot be had of the original panel, a tales may be awarded as in civil causes, till the number of twelve is sworn, "well and truly to try, and true deliverance make, between our sovereign lord the king, and the prisoner whom they have in charge; and a true verdict to give according to evidence."

When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and

the evidence marshalled, examined, and enforced by the counsel for the crown, or prosecution. But it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated. A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. And the judges themselves are so sensible of this defect, that they never scruple to allow a counsel to instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact: for as to matters of law, arising on the trial, they are entitled to the assistance of counsel. But, lest this indulgence should be intercepted by superior influence, in the case of state criminals, the legislature has directed by statute 7 W. III. c. 3. that persons indicted for such high treason as works a corruption of the blood, or misprision thereof, (except treason in counterfeiting the king's coin or seals) may make their full defence by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge.

The doctrine of evidence upon pleas of the crown is, in most respects, the same as that upon civil actions. There are however a few leading points,

wherein, by several statutes and resolutions, a difference is made between civil and criminal evidence.

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First, in all cases of high treason, petit treason, and misprision of treason, two lawful witnesses are required to convict a prisoner, unless he shall willingly and without violence confess the same. further exception is made as to treasons in counterfeiting the king's seals, or signatures, and treasons concerning coin current within this realm, the offences of importing counterfeit foreign money current in this kingdom, and impairing, counterfeiting, or forging any current coin. The statutes 8 and 9 W. III. c. 25. and 15 and 16 Geo. II. c. 28. in their subsequent extensions of this species of treason do also provide, that the offenders may be indicted, arraigned, tried, convicted, and attainted, by the like evidence and in such manner and form, as may be had and used against offenders for counterfeiting the king's money. But by statute 7 W. III. c. 3. in prosecutions for those treasons to which that act extends, the same rule (of requiring two witnesses) is again enforced, with this addition, that the confession of the prisoner, which shall countervail the necessity of such proof, must be in open court. But in almost every other accusation one positive witness is sufficient.

Secondly, the mere similitude of handwriting in two papers shown to a jury, without other concurrent testimony, is no evidence that both were written by the same person.

Thirdly, by the statute 21 Jac. I. c. 27. a mother of an illegitimate child, concealing its death,

must prove by one witness that the child was born dead; otherwise such concealment shall be evidence of her having murdered it.

Fourthly, all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than one innocent suffer.

It was afterwards declared by statute 1 Ann. st. 2. c. 9. that in all cases of treason and felony, all witnesses for the prisoner should be examined upon oath, in like manner as the witnesses against him.

When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged (unless in cases of evident necessity) till they have given in their verdict: but are to consider of it, and deliver it in, with the same forms as upon civil causes: only they cannot, in a criminal case which touches life or member, give a privy verdict. But the judges may adjourn, while the jury are withdrawn to confer, and return to receive the verdict in open court. And such public or open verdict may be either general, guilty or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court, though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if