compassion to you that I use all these words......Jesus God! it is infinite mercy that, for these falsehoods of thine, you are not immediately struck into hell......I pity thee, upon my soul, and pray for thee, though it cannot but make all mankind tremble and be filled with horror, that such a wretched creature should live upon the earth......If I catch you prevaricating in the least tittle (and, perhaps, I know more than you think I do) none of your saints shall save your soul, no, nor your body neither...... Sirrah! thou art a prevaricating, shuffling, snivelling, lying rascal.” Well might the witness exclaim, when, in addition to such verbera linguæ, a lighted candle was held close to his nose, "I am quite cluttered out of my senses; tell me what you would have me say."

It must be borne in mind that all the reports we have of State Trials antecedent to the Revolution, have been licensed to be printed by the Judges presiding at them. What a different and darker picture would they present, if reported by the pen of impartial truth! As they stand, they afford manifest evidence that Judges were not ashamed of what they are reported to have done and said. Habemus confitentes reos.

Interrogations of the prisoner by the Court occur in several of the State Trials in the reign of Charles II., but appear to have been irregularities not warranted by any established practice. In Langhorn's case, for example, the Chief Justice prefaces a string of interrogations with saying, "If you have but the luck to give me an answer to a thing or two, you will have better fortune than the priests who were condemned yesterday." So Judge Wilkins says to the prisoner Braddon, “Pray, Mr Braddon, answer me this one question, &c." The examination of Fitzharris by the Judges out of Court, which has not been sufficiently noticed by writers on legal history, appears to have been advised and systematic; but the circumstance of the King's character being implicated may have been thought to warrant any deviation from ordinary practice.

Chief Justice Pemberton. Let the Lieutenant of the Tower keep Mr Fitzharris safely till we return out of the Exchequer, and then we will examine him.

Serjeant Stringer (Counsel for the Crown). We think it will be a short business and soon over, if you please to do it first. Chief Justice. Do you insist, Brother, that we should examine him presently?

Serjeant Stringer. My Lord, Mr Godfrey desires it.

Chief Justice. Then we will presently.

Lieutenant of the Tower. May his lady speak with him?

Chief Justice. Yes, after he is examined. Lieutenant of the Tower, bring Mr Fitzharris into our little room, where we will take a clerk and examine him.

Mrs Fitzharris (to her husband). My dear, do not confess anything about the death of Sir Edmundbury Godfrey, nor the Plot, for you will be betrayed: speak only to little things.

The principle that nemo tenetur accusare seipsum, has been recently called from the Bench a "sacred principle," and the opinion of Lord Eldon was quoted in favor of the adage. Perhaps a worse authority than Lord Eldon's upon any question of the reviewal of our ancient jurisprudence could not be appealed to. The subject has been much prejudiced, by confounding compulsory examination with an unrestrained liberty to answer or not questions proposed. Now that a prisoner's Counsel would be permitted to re-examine him if cross-examined, and to comment on his answers or his silence, and that public opinion would recalcitrate against oppression, it may be hoped that, like other restrictions upon evidence which have given way before the cogent reasonings advanced by Bentham, that of the Rule of exempting prisoners from interrogation, and still more, that of cautioning them against speaking to their own detection, will be abolished. Prejudices founded upon by-gone terrors of torture, and of exofficio inquisitors, are not easily eradicated; but they cannot be regarded as innocuous, seeing that by closing the avenues of

truth, without, it may be thought, any counterbalancing advantage, they militate with the most sacred duty of human tribunals, that of governing their proceedings in conformity with the divine attribute of justice.

VI. Rules of Practice.

The Rules of Practice in State prosecutions during the reign of Charles II., now present remarkable vestiges of the Ruins of Time. Some of them have been annihilated by the Legislature, and more by the Judicial expositors of the Common Law, that sun-dial whose shadows are continually varying with the progress of Time. Many of those blood-stained Rules have (as Sir Matthew Hale would say) been laid flat, after being condemned by every advocate for justice and humanity.

It is proposed to consider some of the principal Rules of Practice in the reign of Charles II. under the heads of (a) Conferences between Judges and King's Counsel. (b) Adjournment and Postponement of Trials. (c) Denial of Copies of Indictments. (d) Outlawry. (e) Evidence.

(a) Conferences.

That a Judge and a Prosecutor should be closeted together, for the purpose of conferring on a forthcoming criminal trial, is repugnant to a common sense of justice. On this subject Sir Matthew Hale writes, that "at a consultation of Judges at which I was present, all the Judges were assembled by my Lord Keeper, September, 1675, to consider of a case, as it was stated in writing by the Attorney-General." The Government appears to have been desirous to know beforehand, whether a prosecution as for treason would have met with the support of the Judges. Half of the Judges being of one opinion, and half of another, the Attorney-General deemed it prudent to indict not for treason, but for a riot. Previously to the trials of the

Regicides, all the Judges met the Attorney and Solicitor-General and the King's Counsel, for the purpose of proposing and resolving a priori all queries relating to the framing of the indictments, or other matters which were likely to be mooted in the course of the trials. In like manner it has been mentioned, as it was related by Jeffreys at Sydney's trial, that the Judges came to their notable resolution of a witness simply to the buying of a knife being a statutory second witness in treason, after having been commanded to meet for the purpose of giving their opinions on a case put to them by the Senior King's Counsel. The Resolution of Scroggs and the rest of the Judges of England for coercing the Press, after the expiration of the Licensing Act, was made at an extrajudicial meeting convoked at the King's command.

Sir Edward Coke shewed a noble resistance to Lord Bacon when an attempt was made to forestall his opinion upon a State Trial; he called it an auricular taking of opinions1. Upon this point, at least, Coke's conduct fully bore out his written sentiments in his Third Institute: "And to the end that the trial may be the more indifferent, seeing that the safety of the prisoner consisteth in the indifferency of the Court, the Judges ought not to deliver their opinions beforehand of any criminal case that may come before them judicially. For how can they be indifferent, who have delivered their opinions beforehand without hearing of the party affected, and how does it stand with their oaths?" He elsewhere says, that the Law knows of Judges in Curia but not in Camera.

1 See Sir M. Foster's remarks on this transaction, Disc. I. Ch. I. On the interference of the Sovereign with the administration of Justice, see the Author's Fortescue, p. 25; and Ellis's Letters in the British Museum, Vol. III. on the proceedings at Carlisle, in 1715, upon the trials of the rebels.

(b) Adjournment and Postponement of Trials.

With regard to the Adjournment of trials;-it appears to have been consonant to the law, as it stood in the reign of Charles II., that a trial might be adjourned in the middle of it, in order to afford time for discovering further evidence for the Crown in support of the prosecution, or with a view to thwart any suspected leaning in favor of a prisoner on the part of a Jury. A prisoner had only one chance of trial for his acquittal, but an unlimited number, and nothing more ordinary than two, for his conviction.

Sir Matthew Hale writes upon this subject: "It is usual at the Gaol-delivery at Newgate, if a Jury be charged with several prisoners, and the Court finds by probable circumstances that the Jury is partial to one of the prisoners, the Court may discharge the Jury of that prisoner, and put him upon his trial by another Jury; and this is used also in other circuits." Again, "Nothing is more ordinary than, after the Jury sworn, and charged with a prisoner, and evidence given, yet, if it appear to the Court that some of the evidence is kept back, or taken off, or that there may be a fuller discovery, and the offence notorious, murder or burglary, and that the evidence, though not sufficient to convict the prisoner, yet gives the Court a great and strong suspicion of his guilt, the Court may discharge the Jury of the prisoner, and remit him to the gaol for further evidence; and, accordingly, it hath been so practised in most circuits of England; for, otherwise, many notorious murders and burglaries may pass unpunished by the acquittal of a person probably guilty, where the full evidence is not searched out or given."

A flagrant example of the injustice of this Rule of Practice occurred in the two trials of Whitbread, the Provincial of the Jesuits in England. He was first tried, with four other papists, for the Popish Plot, on the 17th of December, 1678, before Chief