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: fas 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 (f). 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 falso et malitiosè scripsit quendam libellum (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 customary 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. 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. (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 (o); 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 contempta 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. (o) 4 Co. 40. a. 47. a. Le Peine fort et dure. On the pu 5. There is one thing in our Laws which is very singular, and comes the nearest of any thing to the Tortures used in other countries, viz. le Peine fort et dure, or, pressing to death: 'Tis true, this is not used to force the Prisoner to confess, but to plead one way or other; but yet even this seems a needless piece of severity. In High-Treason, if the party refuse to plead, the Charge is taken pro confesso; nor would it be any inconvenience if it were so in other cases, or rather if it amounted to a plea of Not Guilty, and the court thereupon proceeded to hear the Proofs of the Fact; for it is as unreasonable to press a man to death without a trial, as it would be to hang him without one: nor can a plea extorted by such methods give any credit to the proceeding of the Court more than if they had proceeded without one, which yet would be no injustice to the prisoner, who will not plead, when he may: nor, on the other hand, is it reasonable, that the hardiness of a Criminal, if he should be able to endure such a lingering death, should exempt him from the forfeitures the law has thought his crime to deserve: if this advantage were taken away, the only temptation of standing mute would be taken away too. 6. It has been esteemed an advantage of our Law, that it does not inflict various and cruel Deaths; that which is inflicted for Treason is the only one, which has any appearance of severity; and even there in the execution it is generally the same with other capital cases: but yet it must be also observed, that our laws are very liberal of the lives of offenders (r), making no distinction between the most atrocious and heinous Felonies, and those of a less degree. If a man commit a single nishments of Robbery, hanging is the punishment inflicted by law; if he commit Grimes, Robbery and Murder with never so many cruel circumstances, the punishment is still the same, and no more: so little regard is had in proportioning the punishment to the offence, that the letter of the law makes no difference between picking a man's pocket (s) and cutting his throat; between stealing his horse (t), and firing his house about his How far this is either just or prudent, is left to every one's own reason to determine; it is certainly a strong temptation to an highwayman to add murder to robbery, when by that means he runs less danger of a discovery, and no danger of a severer punishment. Theft, Murder, ears. The Law of God to the Israelites required, that a person convicted of Theft should restore two-fold (u), and in some cases four or fivefold (r); (thus it was also by the Civil Law (y)) and in cases where personal violence was offered, the Punishment was retaliation, "Eye "for eye, tooth for tooth, hand for hand, foot for foot, burning for "burning, wound for wound, and stripe for stripe (z):" and tho' this law may not in strictness be binding on other nations, yet undoubtedly where the reason holds the same, it is the best pattern for our imitation (a). Murder is indeed a crime, which even by the Law of Retaliation calls for a capital punishment; it is so peremptorily enjoined by the law given to Noah, (and therefore binding on all his posterity) "Whosoever "sheds man's blood, by man shall his blood be shed" (b), that some have questioned (c), whether any prince or power on earth can (r) See Spelman's Life of king Alfred, p. 101. (s) 8 Eliz. cap. 4. § 2. (t) 1 Edw. 6. cap. 12. § 10. 2 & 3 Edw. 6. cap. 33. ver. 21. (a) Grot. de jur. bel. lib. 2. cap. 20. § 32. Deut. cap. 19. (b) Gen. cap. 9. ver. 6. Grot. de jur. bel. lib. 1. cap. 2. § 5. lawfully dispense with it in any case of a plain notorious Murder (d) : most certainly they ought not without some very important and peculiar reasons, and not merely for favour or interest. The Law of God forbids, "that any satisfaction shall be taken for the life of a Murderer, "but he shall surely be put to death (e)." As to other less Offenders, it would be a more equitable and effectual Punishment to confine them to hard (f) labour at home; or, if they deserve it, to sell them to the Moors or Spaniards abroad: it is Idleness which is the source of their guilt, and generally draws them into the commission of their crimes, and therefore nothing more proper to reclaim and deter them, than hard work and labour: however, they have by their guilt incurred a forfeiture of their natural liberty, so that no wrong will be done them in disposing of them in that manner. I am sure it is a much more lawful method of making slaves than the practice of kidnapping and stealing innocent men from off the African shore, and forcibly carrying them away from all their friends and relations into a miserable Slavery in America, without any better title, than what arises hom the difference of complexions. However, not to enter into a discussion of the lawfulness or justice of taking away Life for every kind of offence, a consideration which the learned Spelman observes has not had its due weight in later ages (g), yet methinks so long experience might have taught us how ineffectual it is to answer the purposes for which it is designed. Death is ultimum supplicium, and is therefore intended only for crimes of the highest rank; but when it is indiscriminately inflicted, it leaves no room to difference the punishments of crimes widely different in their own nature. The lower part of mankind are apt in dubious cases to judge of the heinousness of the Offence by the severity of the Punishments; but yet, when they see the same punishment annext, where the difference of Guilt is manifest and apparent, they soon lose the sense of that extraordinary guilt, and instead of conceiving worse of the crime, they only blame the cruelty of the law. Further, when such numbers are continually ordered for Execution, (as must be the case where Death is made the common punishment for ordinary crimes) the frequency of the example destroys the terror of it, and makes it less dreaded than going to the Galleys or any place of hard labour. Besides, when the punishments are so very disproportionate to the offence, it defeats the end of them, forasmuch as those, who have any tenderness or humanity in their temper, will much rather forbear wholly to prosecute, than be made the Instruments of putting such severe laws in execution; instead therefore of being a means of bringing the Offenders to punishment, it is oftentimes the very reason, why they escape with impunity. This severity of our Law in inflicting capital punishments upon the lighter crimes of Pilfering and Thieving seems the more extraordinary, when one considers the great indulgence shewn to one of the first magnitude, and which is productive of much more mischievous consequences; I mean Adultery, which it is holden (h), does not by our law andAdultery; (d) By divers old Statutes no Charter of Pardon ought to be granted in case of Murder. Dal. cap. 145. (e) Numb. cap. 35. ver. 31. Mori Utopia, lib. 1. (f) Puf. Law of Nat. lib. 8. cap. 3. § 26. (g) Spelm. in verbo Lanicinium. See also Hales Hist. P. C. in notis p. 12. (h) 2 Co. Instit. 488, 2 Salk. Rep. 552. Galizard & Rigault: This is the general opinion, tho' I must confess, I see not, but that Adultery is indictable by our Law. Godolphin in his Repertorium, cap. 34. § 10. admits it to be a temporal offence against the peace of the realm, for which sureties of the peace may be required. And lord Coke says, That in ancient times it was punishable" in the turns or leets by fine or imprisonment by the name of Letherwite, 2 Inst. admit of any prosecution in a criminal way; yet whether we consider the guilt of the offender, or the mischief done to the injured party, there is no comparison between the one and the other. What proportion is there between a private Theft, perhaps of some trifle, which may soon? be repaired, and the invasion of our neighbour's bed, (i) irreparably robbing him of all the satisfaction and comfort of his family, confounding relations, and imposing upon him the charge of maintaining a spurious issue as his own? The one is often done only to allay the violence of a pressing hunger, but the other always to gratify an irregular and ungovern'd lust. Nor can it with reason be pretended, that the one is a crime of a public, the other of a private nature: if the public be concerned in the preservation of the Property of Goods, it cannot be less so in the preservation of the more valuable Rights, which affect the peace and quiet of families. Is private stealing an offence against the community? The other is much more so, having a greater tendency to promote frays, and quarrels, public disturbances and breaches of the peace, from whence bloodshed and murders often ensue (k). -What may be the reason why our laws make so light of this enormous Crime, whether it be the countenance it receives from great examples and the commonness of the fault, or some other reason, I will not take upon me to say; but most certain it is, that the laws of other nations (1) had a different sense of it, and treated it in a severer manner by the Mosaic law it was always punished with Death (m); and long before that law it was esteemed "an Iniquity to be punished by "the Judges (n)."-By an old law of Romulus (o) the Adulteress was to be put to death; Adulterii convictum vir & cognati, uti volent, necanto: and tho' afterwards the Civil Law, Lex Julia de Adulteriis, punish'd it only [per relagationem (p)] with banishment, or [per deportationem (q)] with transportation into some remote island; yet the father of the adulteress was permitted to kill both his daughter and the adulterer (r), and in some instances the husband had the same power (s); and if he chanced to use that power in a case not allow'd, even then he was not 488. 3 Inst. 206. It is allowed on all hands that an indictment lies for seducing a servant away from his master's service; and that the same reason extends to the seducing a wife away from her husband: of this there is a precedent in Tremain's Entries, p. 209. 213. & 214; The King against Montague, 1 Jac. 2. and another in Offic. Cler. Pac. p. 311. Tho' these were Cases where the Wife went away with the Adulterer, yet the reason holds proportionably, where she is seduced to a breach of her fidelity and trust, tho' it be without going away. If a man debauch his wife's sister, this has been held a Misdemeanor punishable by indictment or information; this was the Case of Ford lord Grey, for debauching the earl of Berkeley's daughter; See Trials, A. D. 1682, and of the king against Heathcote, for debauching Mr. Holworthy's daughter, Trin. 7 Geo. 1. (1720.) B. R. Rot. 46. Sure it is not less injurious to debauch another man's wife; but still it is punishable only as a Misdemeanor, and not with that severity as the guilt of the offence requires, and the laws of other nations have thought it to deserve: so that the injured party is in a manner obliged to betake himself to a civil action for damages; tho' as Mr. Wollaston says in the place cited below, the offence is of such a nature that no satisfaction can be mrade for it, if the injured man thinks so, as he generally does. If this be so, the law should be so framed, as rather to deter from committing the crime, than to aim at making amends for it, after it is committed. (i) See Wollaston's Religion of Nature, § 6. par. 19. (k) Sec 1 Hen. 7, c. 6. (1) See Godolph. Abridgment, cap. 34. (m) Levit. cap. 20. ver. 10. Deuter. cap. 22. ver. 22. 11. Susanna, ver. 41. John. cap. 8. ver. 5. Ezek. cap. 18. ver. (n) Job, cap. 31. ver. 11. (0) See Bodinus in Methodo Historica, cap. 4. (p) Digest. de divortiis & repudiis, lib. 24. tit. 2. 1. 8. (9) Digest. de quæstionibus, lib. 48. tit. 18. 1. 5. (7) Digest. ad leg. Jul. de adulter. lib, 48. tit. 5. 1. 20. (s) Ibid. L. 24. |