Character of tribunals.

even under the best regulated judicial system, more or
less vexation must necessarily be experienced by all
persons who are made the subjects of criminal charges,
which vexation it may have been the object of the party
to elude by concealment, with the intention of surren-
dering himself into the hands of justice when the time
for trial should arrive (u). These considerations are
entitled to weight at all times, and in all places; but in
addition to them the nature and character of the tri-
bunal before which, and of the administration of justice
in the country where the trial is to take place, must
never be lost sight of. In the case, for instance, of
some of the old continental tribunals, which acted on
this maxim, "In atrocissimis leviores conjectura suffi-
ciunt, et licet judici jura transgredi (v);" or of others,
which, on slight evidence, would, in order to extract a
confession, torture a suspected man so as to maim him
for life (x); or of others acting on the enlightened prin-
ciple laid down by certain eminent moralists, that it is
justifiable to deliver up to capital punishment indi-
viduals whose guilt is not indisputably proved, on the
ground that those who fall by a mistaken sentence
may be considered as falling for their country (y), is it
matter of wonder that innocent persons should fly to
avoid the impending danger? or would it not be more

(u) For the purpose of computing the average duration of a penal suit in France, the thirty volumes, in closely printed 12mo., of the Causes Célèbres were examined. It was not in every instance that the duration of the suit could be ascertained: but, in those in which it could, the average duration turned out to be near sir years. (3 Benth. Jud. Ev. 174.) In this country, when there is no winter assize,

and where the Central Criminal
Court has not jurisdiction, a party
committed in the month of Sep-
tember for a serious felony can-
not be tried until the following
February or March.

(v) Introd. sect. 2, § 49, note (k).
(r) See any treatise on the
practice of the civil law in criminal

cases.

(y) See Introd. sect. 2, § 49, note (k).

surprising to find any waiting to meet the course of justice (z)?

practice, which might
solicit or avoid being

siderations.

§ 446. But there are other considerations, inde- Other conpendent of tribunals or their powerfully influence a man to tried for a suspected crime. The case may have attracted much public attention, and a strong popular feeling prevail against the supposed criminal. And here the occasional misconduct of the public press must not be overlooked. When facts have come to light indicating the probable commission of some crime conspicuous for its peculiarity or atrocity, the press of this country has too often forgotten the honourable position it ought to occupy, and the fearful responsibility consequent on the abuse of its power. Under colour of a horror of the crime, but more probably with the view of pandering to excited curiosity and morbid feeling, a course is taken calculated to deprive of all chance of a fair trial the unfortunate individual who is suspected of it. For weeks or months previous, his conduct and character are made the continual subject of condemnatory discussion in, the public prints, and all places within the sphere of their influence. Circumstantial descriptions of the way in which the crime was committed, and sometimes actual delineations of it, with the accused represented in the very act; elaborate histories of his past life, in which he is spoken of as guilty of crimes innumerable; minute accounts of his conduct in the retirement of his cell, and while under examination; and expressions of rage and wonder that he has the audacity to withhold a confession of his guilt, are daily and hourly poured forth. In one case, while cer

(z) What a picture of the state of criminal procedure in the country where he lived is presented by the declaration of the

French lawyer, that he would fly
if accused of stealing the steeples
of Nôtre Danie! See 3 Benth.
Jud. Ev. 175.

Offences under prospect of

change of place.

Ancient laws on this subject.

tain parties were awaiting their trial for murder, the
whole scene of the murder, of which, of course, they
were assumed to be the perpetrators, was dramatized,
and represented to a metropolitan audience (a). The
necessary consequence is, that a firm belief of the guilt
of the accused is imperceptibly worked into the minds
of the better portion of society, while the rest is in-
flamed to the highest pitch of excitement and exaspera-
tion against him. In the midst of all this he is brought
to trial, which, under such circumstances, can be little
better than a mockery. The judge and jury who sit in
judgment on such a man are not considered, perhaps
even by themselves, as individuals chosen to decide im-
partially on his guilt or innocence; they are rather ex-
pected to be formal registrars of a verdict of condem-
nation, already iniquitously given against him by society
before he was heard in his defence.

§ 447. We must not, however, dismiss this subject without observing that cases sometimes occur, where an offence has been committed under the prospect of impunity offered by a change of place resolved on from other motives.

§ 448. Few things distinguish an enlightened from a rude and barbarous system of judicature more than the way in which they deal with evidence. The former weighs evidence; the latter, conscious perhaps of its inability to do so with effect, or careless of the consequences of error, sometimes rejects it in masses, and at others converts pieces of evidence into rules of law, by investing with conclusive effect some whose probative

(a) On the 7th of January, 1824, John Thurtell and Joseph Hunt were tried and convicted on unquestionable evidence for the murder of William Weare,

on the 17th of October, 1823.
The murder was dramatized and
the piece played at the Surrey
Theatre on the 17th of November
preceding the trial.

force has been found to be in general considerable. Our ancestors, observing that guilty persons commonly fled from justice, seem to have adopted the hasty conclusion that it was only the guilty who did so, according to the maxim, "Fatetur facinus qui fugit judicium (b).' Under the old law a man who fled to avoid being tried for treason or felony, forfeited all his goods and chattels, even though he were acquitted (c); and in such cases the jury was always charged to inquire, not only whether the accused were guilty of the offence, but also whether he fled for it, and if so what goods and chattels he had. This practice was not formally abolished until the stat. 7 & 8 Geo. IV. c. 28, s. 5. Nor was the notion peculiar to the English law. We find traces of it among the earlier civilians, who lay down, "Reus per fugam sui penè accusator existit (d)." Among the later (e), as well as in modern times among ourselves, more correct views have prevailed, and the evasion of justice seems now nearly reduced to its true place in the administration of the criminal law, namely, that of a circumstance-a fact which it is always of importance to take into consideration, and combined with others may supply the most satisfactory evidence of guilt, but which, like any other piece of presumptive evidence, it is equally absurd and dangerous to invest with infallibility.

§ 449. VI. FEAR INDICATED BY PASSIVE DEPORTMENT, &c.—The emotion of fear indicated by passive

(b) 5 Co. 109 b; 11 Co. 60 b; Jenk. Cent. 1 Cas. 80.

(c) Co. Litt. 373 a and b; 5 Co. 109 b; 19 Ho. St. Tr, 1098. According to some authorities, indeed, this forfeiture was inflicted on the ground that the flight was a contempt of the law and

substantive crime in itself. Plowd.
262; 19 Ho. St. Tr. 1098.

(d) Voet. ad Pand. lib. 22, tit.
3, N. 5; Novel. 53, cap. 4.

(e) Mascard. de Prob. Concl. 499; Matth. de Prob. cap. 2, N. 69; Voet. in loc. cit.

VI. Fear indi cated by passive deportment.

M M

cumstances.

present.

deportment when a party is accused, or perceives that he is suspected of an offence, is sometimes relied on as a criminative circumstance. The following physical symptoms may be indicative of fear:-" Blushing, paleness, trembling, fainting, sweating, involuntary evacuations, weeping, sighing, distortions of the countenance, sobbing, starting, pacing, exclamation, hesitation, stammering, faultering of the voice," (f) &c.; and, as the probative force of each of these depends on the correctness of the inference that the symptom has been caused Infirmative cir- by fear of detection of the offence imputed, two classes of infirmative circumstances naturally present themselves. 1. Emotion not 1st. The emotion of fear may not be present in the mind of the individual. Several of the above symptoms are indicative of disease, and characteristic of other emotions, such as surprise, grief, anger, &c. With respect to the first, for instance, "blushing," the flush of fever and the glow of insulted innocence are quite as common as the 2. Emotion not crimson of guilt. 2ndly. The emotion of fear, even if actually present, although presumptive, is by no means conclusive evidence of guilt of the offence imputed. The alarm may be occasioned by the consciousness of another crime, committed either by the party himself, or by others connected with him by some tie of sympathy, on whom judicial inquiry may bring down suspicion or punishment (g); or even by the recollection of a fact, in consequence of which, without any delinquency at all, vexation has been, or is likely to be, produced to him or them (h). To these may be added the apprehension of condemnation and punishment though innocent, or of vexation and annoyance from prosecution-a circumstance the weight of which, like that of the evasion of justice, depends very considerably on the character of the tribunal before which, and the forms of criminal procedure in the country where his trial is to take (g) 3 Benth. Jud. Ev. 157.

connected with offence im

puted.

(f) 3 Benth. Jud. Ev. 153.
(h) Id. 157.