protests very strongly against this tyrannical practice; declaring that he never read in any act of parliament, book, case, or record, that in criminal cases the party accused should not have witnesses sworn for him; and therefore there was not so much as scintilla juris against it. And the house of commons were so sensible of this absurdity, that, in the bill for abolishing hostilities between England and Scotland, when felonies committed by Englishmen in Scotland were ordered to be tried in one of the three northern counties, they insisted on a clause, and carried it against the efforts of both the crown and the house of lords, against the practice of the courts in England, and the express law of Scotland, "that in all such trials, for the better discovery of the truth, and the better information of the consciences of the jury and justices, there shall be allowed to the party arraigned the benefit of such credible witnesses to be examined upon oath as can be produced for his clearing and justification." At length by the statute 7 W. III. c. 3, the same measure of justice was established throughout all the realm, in cases of treason within the act : and 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 shall 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 But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court.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 they think proper so to hazard a breach of their oaths. In many instances, where contrary to evidence the jury have found

the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of king's bench; for in such case, as hath been said, it cannot be set right by attaint. But there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first.

If the jury therefore find the prisoner not guilty, he is then for ever quit and discharged of the accusation. And upon such his acquittal, or discharge for want of prosecution, he shall be immediately set at large without payment of any fee to the gaoler. But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted. Which conviction may accrue two ways; either by his confessing the offence and pleading guilty; or by his being found so by the verdict of his country.

QUESTIONS.

Who may challenge the jury?

What is a peremptory challenge-to whom permitted, and on what principle?

How many peremptory challenges are allowed?

In cases of treason and felony, what was the former, and what is the 'present practice, as to allowing witnesses to be examined on behalf of the prisoner, charged with treason or felony ?

When, where, and how do the jury give their verdict?

Note. The state of the Criminal Law has for several years past been the subject of anxious consideration in Parliament; and many great alterations have been effected-which are not, however, of a nature to be specified or explained in a work of such a general and elementary character as the present. The last and most striking change is that which has been just effected by the Prisoner's Counsel Bill, (6 & 7 Wm. IV. c. 115,) which enables "persons indicted of felony to make their defence by counsel or attorney."

JUDGMENT AND ITS CONSEQUENCES.

WHEN the jury have brought in their verdict guilty, in the presence of the prisoner; he is either immediately, or at a convenient time soon after, asked by the court, if he has anything to offer why judgment should not be awarded against him. And in case the defendant be found guilty of a misdemesnor, (the trial of which may and does usually, happen in his absence, after he has once appeared,) a capias is awarded and issued, to bring him in to receive his judgment; and, if he absconds, he may be prosecuted even to outlawry. But whenever he appears in person, upon either a capital or inferior conviction, he may at this period, as well as at his arraignment, offer any exceptions to the indictment, in arrest or stay of judgment: as for want of sufficient certainty in setting forth either the person, the time, the place, or the offence. And, if the objections be valid, the whole proceedings shall be set aside; but the party may be indicted again.

A pardon also, as has been before said, may be pleaded in arrest of judgment.

If all these resources fail, the court must pronounce that judgment which the law hath annexed to the crime.

And it is one of the glories of our English law, that the species, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons. For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society without knowing exactly the conditions and obligations which it lays them under. And besides, as this prevents oppression on the one hand, so on the other it stifles all hopes of impunity or mitigation with which an offender might flatter himself, if his punishment depended

on the humour or discretion of the court. Whereas, where an established penalty is annexed to crimes, the criminal may read their certain consequence in that law; which ought to be the unvaried rule, as it is the inflexible judge, of his actions.

When sentence of death, the most terrible and the highest judgment in the laws of England, is pronounced, the immediate inseparable consequence from the common law is attainder. For when it is now clear beyond all dispute, that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no further care of him than barely to see him executed. He is then called attaint, attinctus, stained or blackened. He is no longer of any credit or reputation; he cannot be a witness in any court; neither is he capable of performing the functions of another man: for, by an anticipation of his punishment, he is already dead in law. This is after judgment: for there is a great difference between a man convicted and attainted; though they are frequently through inaccuracy confounded together. After conviction only, a man is liable to none of those disabilities: for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment: the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed: he may obtain a pardon, which supposes some latent sparks of merit, which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact conspire to prove him completely guilty: and there is not the remotest possibility left of any thing to be said in his favour. Upon judgment therefore of death, and not before, the attainder of a criminal commences or upon such circumstances as are equivalent to judgment of death; as judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice, which tacitly confesses the guilt. And therefore either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted.

QUESTIONS.

What question is asked of the prisoner, whom the jury have pronounced guilty?

What is the peculiar advantage of having the species of punishment ascertained for every offence?

What is the immediate inseparable consequence of judgment of sentence of death?

What is attainder?

What is the difference between a man convicted, and a man attainted?