look back to the days when Magna Charta and the Statute of Treasons were the only safeguards against the power of the Crown, as times of popular liberty and security, have not " inquired wisely in this matter." The proceedings against persons accused of state offences in the earlier periods of our history do not deserve the name of trials; they were a mere mockery of justice, being, in fact, only employed by the government as a means of destroying obnoxious individuals, with sufficient pomp and circumstance to hold the multitude in awe. The result was so certain and predetermined, that the ends of justice would have been just as well answered by the execution of the supposed offender without the ceremony of a trial. "In ancient times," says Mr. Hargrave, " and more especially in the reign of Henry VIII., when from the devastation made by the civil wars amongst the ancient nobility, and other causes disturbing the balance of the constitution, the influence of the Crown had become exorbitant, and seems to have been in its zenith, to be accused of a crime against the state, and to be convicted were almost the same thing. The one was usually so certain a consequence of the other, that exclusively of Lord Dacres's case in the reign of Henry VIII., and that of Sir Nicholas Throckmorton, in his daughter Mary's, the examples to the contrary are very rare."

The advantage which the liberty of the subject has gained in modern times cannot, perhaps, be better illustrated, than by contrasting the situation of two individuals charged with the crime of treason, at the two extremes of a period of two hundred years. In the boasted age of Elizabeth, the practice was to arrest the suspected person, and to keep him in strict imprisonment till it suited the purposes of the Crown to try him. During this interval, (which was quite without limit in practice, however illegal, there being

instances of imprisonment for many years without trial,) the prisoner was left to ruminate upon his misfortune in solitude, no friend or adviser being admitted to him; his gaoler, perhaps, or some expert underling of state, was occasionally introduced to examine him,-to extort confessions from him; or, failing in this object, to do what Tacitus describes as the height of imperial tyranny at Rome, suspiria subscribere, to write down and register the sighs and groans of the captive, for the purpose of making them the subject of criminal charges *. Coming to his trial with his powers both of body and mind wasted by confinement, he was literally brought out to "fight without a weapon t." He heard the charge against him for the first time, when the indictment was read upon his arraignment; he was left to puzzle out his way to the meaning of the charge, involved, as it was, in technical jargon, and was compelled to plead instantly to it. If he denied it, evidence was produced against him, consisting of written, or even verbal accounts of the examinations of persons, not brought into court, not cross-examined by him, nor confronted with him in any way; sometimes convicted traitors waiting for execution; sometimes men charged with the same offence which was imputed to him, and hoping for, and even promised pardon for themselves, if they succeeded in fixing guilt upon him. He was not allowed to call witnesses to prove his innocence of the charge, or to impeach the testimony

* One of the most flagrant instances of this mode of procuring evidence, occurred in the case of Sir Walter Raleigh; in which Sir Thomas Wilson, the Keeper of the State Papers, was shut up in the Tower with the prisoner for upwards of a month, for the express purpose of drawing from his own conversation, materials for a criminal accusation. The particulars of this transaction will be found in the account of the proceedings against Sir W. Raleigh in this volume.

See the Duke of Norfolk's trial, p. 146.

of the witnesses for the Crown; counsel were not to assist him in making his defence, and, during the whole proceeding, the judges and king's counsel were accustomed to display their ingenuity by perplexing the prisoner with questions, and endeavouring to extract his condemnation from his own mouth. If the jury found him guilty, his life and property were in the king's hands; and the old observation which has been applied to princes may with equal justice be applied to persons convicted of state offences in ancient times, namely, that "the interval between their prisons and their graves was usually but a short one;" if, on the other hand, he was acquitted, the jury were reprimanded, or even punished, and the prisoner was sent back to confinement till the materials for a new charge were compounded, or till it pleased the caprice of government to discharge him. Such was the law and practice in the time of Queen Elizabeth; let us now look at the law and practice in the time of George III.

In modern times, a person imprisoned on a charge of treason is entitled immediately to a copy of the warrant of commitment, which the gaoler is bound to deliver to him under a very heavy penalty; friends and advisers are admitted to consult with him at all reasonable times; if upon the warrant of his commitment or otherwise he has reason to believe, or is advised that his imprisonment is illegal, or that he is entitled to bail, he may demand to be brought personally before some court of superior jurisdiction; and after being heard publicly and openly, he will be either bailed, remanded, or discharged; he must be brought to trial within a reasonable time, and if not indicted in the course of the next term or sessions after his commitment, he is entitled to be bailed; and if not indicted and tried at the second term or sessions, he may be discharged. There must be an

interval of fifteen days between his arrraignment and trial. A copy of the indictment, together with a list of the witnesses to appear against him, and also of the jury by whom he is to be tried, with a full description of each person, in order that he may know how to direct his challenges, must be delivered to him ten days at least before his trial; counsel are assigned to him by the court upon his own nomination, who are permitted to assist him in every part of the trial by examining witnesses and addressing the jury in his behalf; there must be two witnesses to support every article of the treason charged against him; all the evidence is given in open court, and the prisoner or his counsel are allowed to cross-examine the witnesses for the prosecution; no questions are asked of the prisoner during the whole of the proceeding as to the facts of the case; he may call as many witnesses as he pleases, who are examined upon oath, and he has the same means of compelling their attendance as the Crown; on a verdict of acquittal, he is instantly discharged, and the jury are never questioned for their conduct.

When the two cases are thus placed in opposition, it is manifest that a very great improvement has taken place in the administration of criminal justice and the liberty of the subject: and upon a nearer examination, the advantages which we possess in modern times will be found to consist not so much in the declaration of abstract rights and liberties, as in the careful provision of means by which those rights and liberties may be rendered practically available to the individual whenever the hand of unlawful power may lie heavily upon him.

In the reign of Queen Elizabeth an Englishman not in a state of villeinage had, by the constitutional law of the land, an unquestionable right to personal liberty; but the means he possessed of vindicating

his freedom and escaping from the grasp of a powerful adversary were very slender and insufficient. He might indeed have his action or indictment founded on Magna Charta, or he might recover damages for false imprisonment, or he might possibly be entitled to a writ de odio et atia or a writ de homine replegiando*. But the relief which such a person required was instant deliverance; he was bound hand and foot by an enemy whom he could not resist, and who had the inclination and the power to crush him entirely; it was idle, therefore, to tell him that he would hereafter be entitled by law to punish his oppressor by an indictment, or recover compensation for his wrongs by an action; and as to the other remedies alluded to, the mere mention of their names shows how utterly futile they were to a state prisoner; he would in all probability never have heard of them; or, if he had, it would have been altogether impossible to have availed himself of them without professional assistance or a communication with his friends. On the other hand, in the present day, a prisoner is carefully instructed in the mode by which he may make his voice heard beyond the walls of his prison; he is not only reminded of his natural strength, but the weapons of defence are placed in his hands, and he is taught how to wield them; in the language of Mr. Erskine, in his defence of Hatfield, "he is covered all over with the armour of the law."

*The writ de odio et atia was directed to the Sheriff, and commanded him to inquire whether a prisoner charged with murder, was committed upon just cause of suspicion, or merely propter odium et atiam, for hatred and ill-will; and if, upon the inquisition, no good cause of suspicion appeared, another writ issued to the Sheriff to admit him to bail. The writ de homine replegiando was to replevy a man out of prison, upon giving security to the Sheriff for his appearance, to answer any charge against him. "But this writ," says Mr. Justice Blackstone, "is guarded with so many exceptions, that it is not an effectual remedy in numerous instances, especially where the Crown is concerned."