commerce of the nation had introduced more intricate questions of justice. the judicial authority in civil cases could not but enlarge its bounds; the rules of property in a cultivated state of society became by degrees beyond the compass of the unlettered multitude, and in certain well known restrictions undoubtedly fell to the judges; yet more perhaps from necessity than by consent, as all judicial proceedings were artfully held in the Norman language, to which the people were strangers.

Of these changes in judicature, immemorial custom, and the acquiescence of the legislature, is the evidence which establishes the jurisdiction of the courts on the true principles of English law, and measures the extent of it by their ancient practice.

But no such evidence is to be found of any the least relinquishment or abridgment of popular judicature in cases of crimes;, on the contrary, every page of our history is filled with the struggles of our ancestors for its preservation.

The law of property changes with new objects, and becomes intricate as it extends its dominions; but crimes must ever be of the same easy investigation: they consist wholly in intention, and the more they are multiplied by the policy of those who govern, the more absolutely the publick freedom depends upon the people's preserving the entire administration of criminal justice to themselves.

In a question of property between two private individuals, the crown can have no possible interest in preferring the one to the other: but it may have an interest in crushing both of them together, in defiance of every principle of humanity and justice, if they should put themselves forward in a contention for publick liberty against a government seeking to eman-cipate itself from the dominion of the laws. No man in the least acquainted with the history of nations, or of his own country, can refuse to acknowledge, that if the administration of criminal justice were left in the hands of the crown, or its deputies, no greater freedom could possibly exist than government might

choose to tolerate from the convenience or policy of the day.

My lord, this important truth is no discovery or assertion of mine, but is to be found in every book of the law; whether we go up to the most ancient authorities, or appeal to the writings of men in our own times, we meet with it alike in the most emphatical language. Mr. Justice Blackstone by no means biassed towards democratical government, having, in the third volume of his commentaries, explained the excellence of the trial by jury in civil cases, expresses himself thus: vol. 4. p. 349. "But it holds much stronger in criminal cases; since in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject, than in disputes between one individual and another, to settle the boundaries of private property. Our law has, therefore wisely placed this strong and twofold barrier of a presentment and trial by jury, between the liberties of the people and the prerogative of the crown: without this barrier, justices of oyer and terminer named by the crown, might, as in France or in Turkey, imprison, despatch, or exile, any man that was obnoxious to government, by an instant declaration that such was their will and pleasure. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks which none will be so hardy as to make, but also from all secret machinations which may sap and undermine it."

But this remark, though it derives new force in being adopted by so great an authority, was no more original in Mr. Justice Blackstone than in me, for the same express reason; for the institution and authority of juries is to be found in Bracton, who wrote above five hundred years before him. "The curia and the pares," says he, "were necessarily the judges in all cases of life, limb, crime and disherison of the heir in capite. The king could not decide, for

then he would have been both prosecutor and judge; neither could his justices, for they represent him.*"

Notwithstanding all this, the learned judge was pleased to say at the trial, that there was no difference between criminal and civil cases. I say, on the contrary, independent of these authorities that there is not, even to vulgar observation, the remotest similitude between them.

There are four capital distinctions between prosecutions for crimes, and civil actions, every one of which deserves consideration.

First: In the jurisdiction necessary to found the charge.

Secondly; In the manner of the defendant's pleading to it.

Thirdly; In the authority of the verdict which discharges him.

Fourthly; In the independence and security of the jury from all consequences in giving it.

As to the first, it is unnecessary to remind your lordships, that, in a civil case, the party who conceives himself aggrieved, states his complaint to the court, avails himself at his own pleasure of its process, compels an answer from the defendant by its authority, or taking the charge pro confesso against him on his default, is entitled to final judgment and execution for his debt, without any interposition of a jury. But in criminal cases it is otherwise; the court has no cognisance of them, without leave from the people, forming a grand inquest. If a man were to commit a capital offence in the face of all the judges of England, their united authority could not put him upon his trial: they could file no complaint against him, even upon the records of the supreme criminal court; but could only commit him for safe custody, which is equally competent to every common justice of the peace: the grand jury alone could arraign him, and in their discretion might likewise finally discharge

* Vide likewise Mr. Reeve's very ingenious History of the English Law.

him, by throwing out the bill, with the names of all your lordships as witnesses on the back of it.

If it shall be said, that this exclusive power of the grand jury does not extend to lesser misdemeanors, which may be prosecuted by information; I answer, that for that very reason it becomes doubly necessary to preserve the power of the other jury which is left.

But, in the rules of pleading, there is no distinction between capital and lesser offences; and, I venture to assert, that the defendant's plea of not guilty, which universally prevails as the legal answer to every information or indictment, as opposed to special pleas to the court in civil actions; and the necessity imposed upon the crown to join the general issue, is absolutely decisive of the present question.

Every lawyer must admit, that the rules of pleading were originally established to mark and to preserve the distinct jurisdictions of the court and the jury, by a separation of the law from the fact wherever they were intended to be separated. A person charged with owing a debt, or having committed a trespass, &c. &c. if he could not deny the facts on which the actions were founded, was obliged to submit his justification for matter of law by a special plea to the court upon the record; to which plea the plaintiff might demur, and submit the legal merits to the judges. By this arrangement, no power was ever given to the jury, by an issue joined before them, but when a right of decision as comprehensive as the issue went along with it: for, if a defendant in such civil actions pleaded the general issue instead of a special plea, aiming at a general deliverance from the charge, by showing his justification to the jury at the trial; the court protected its own jurisdiction, by refusing all evidence of the facts on which such justification was founded.

The extension of the general issue beyond its ancient limits, and in deviation from its true principle, has introduced some confusion into this simple and

harmonious system; but the law is substantially the same.inci

No man, at this day, in any of those actions where the ancient forms of our jurisprudence are still wisely preserved, can possibly get at the opinion of a jury upon any question not intended by the constitution for their decision. In actions of debt, detinue, breach of covenant, trespass, or replevin, the defendant can only submit the mere fact to the jury; the law must be pleaded to the court: if dreading the opinion of the judges, he conceals his justification under the cover of a general plea in hopes of a more favourable construction of his defence at the trial; its very existence can never even come within the knowledge of the jurors: every legal defence must arise out of facts, and the authority of the judge is interposed, th prevent their appearing before a tribunal which, in such cases, has no competent jurisdiction over them.

By imposing this necessity of pleading every legal justification to the court, and by this exclusion of all evidence on the trial beyond the negation of the fact, the courts indisputably intended to establish, and did in fact effectually secure the judicial authority over legal questions from all encroachment or violation; and it is impossible to find a reason in law, or in common sense, why the same boundaries between the fact and the law should not have been at the same time extended to criminal cases by the same rules of pleading, if the jurisdiction of the jury had been designed to be limited to the fact as in civil actions.

But no such boundary was ever made or attempted; on the contrary, every person charged with any crime by an indictment or information, has been in all times from the Norman conquest to this hour, not only permitted, but even bound to throw himself upon his country for deliverance, by the general plea of not guilty; and may submit his whole defence to the jury, whether it be a negation of the fact, or a justification of it in law and the judge has no authority as in a civil case, to refuse such evidence at the trial, as out of the issue, and as coram non judice, an au