evidence, though now universally abandoned in all judicial proceedings, was then, as we have elsewhere observed, the usual and regular course.

But though the reception of this evidence is not imputable to the judges on Throckmorton's trial as a particular act of injustice, it marks in a very striking manner the imperfect state of the criminal law at that period. It is impossible to conceive any means of judicial investigation more repugnant to justice and common sense. Instead of calling the witnesses to declare what they have seen or heard in order that the jury may judge of their credibility, these written examinations, or such extracts from them as may support the charge, are produced by the prosecuting counsel; no account is given of the manner and circumstances under which they have been taken; the party by whom they were taken does not appear; it is not even shown that they contain all that the examinate stated relating to the matter in question, or that what he did state is fairly reported; indeed there is no actual proof that he was ever examined at all; the jury are called upon to take the whole upon trust from the counsel for the prosecution; and to determine the fate of the prisoner upon testimony which may, for all that they are permitted to see or inquire into, be altogether manufactured by those whose interest it is to destroy him; they are required to form a decision involving the life of a fellow-creature, upon evidence which they would not individually act upon in the most insignificant concerns of life.

The trial of Throckmorton affords a good illustration of the mode in which the transition to vivâ voce evidence was gradually beginning to take place in the reign of Mary. One witness only was examined in court; and this seems to have been done more as an unnecessary excess of proof or bravado than as the regular course, the written examinations having been

previously read, and the witness being merely called, upon the prisoner's denial of the facts, to speak to their accuracy: and it will be observed that when the prisoner produces a witness to prove certain facts material for his defence, he is indignantly rejected by the Court, who evidently treat such testimony as an unheard-of irregularity. Mary had, indeed, at the commencement of her reign, expressly recommended it to her Judges to allow prisoners in felony to call witnesses for their defence; this, however, was granted merely as a favour, and a relaxation of the strict right of the Crown; and it was at a much later period that a prisoner was allowed to call witnesses in his defence, in cases of treason: and long after this was granted as a matter of indulgence, and indeed long after it grew into a right, the prisoner's witnesses, both in treason and felony, were not sworn, which always left a pretence for discrediting their testimony.

It must be acknowledged, however, that although by far the greater part of the evidence against Throckmorton was of an unsatisfactory nature, some of the testimony produced was legitimate and regular evidence, and would be admissible in effect at the present day, though it would be delivered in a dif ferent form. Upon the prisoner's denial of the facts contained in Cuthbert Vaughan's Examination, the witness himself was produced, and after being formally sworn, and having looked at his previous statement, was examined by the Queen's counsel and cross-examined by the prisoner. The statement of Vaughan, therefore, must be considered as having been repeated before the jury upon his oath, and thus became proper for their consideration upon legal and rational principles of evidence, subject, however, to their opinion of his credibility, with respect to which Throckmorton makes some very sensible observations.

But the prisoner contended with great force and ingenuity, that as Vaughan was the only witness produced, his testimony alone, even though believed by the jury, was not sufficient in law to warrant a verdict of guilty. By the statutes of the 1 Edward VI. c. 12, and the 5 and 6 Edward VI. c. 11, two "sufficient and lawful witnesses," as the first statute says, or two "lawful accusers," as the latter expresses it, were required to prove acts of treason, and these were to be brought personally into court "to avow and maintain what they had to say against the party arraigned, unless he without violence confessed the same." The statute of the 1 and 2 Philip and Mary, c. 10, which was afterwards considered to have repealed these statutes, had not then passed; and at the precise point of time when Throckmorton was tried, a prisoner indicted for treason was unquestionably entitled to claim the benefit of the statutes of Edward VI. But though the law was at that time clear, it is extremely doubtful, upon the facts of the Trial, whether Throckmorton was entitled to avail himself of this objection. For it may fairly have been said that his own statement* amounted to a confession, and consequently that his case came within the exception contained in the statutes: besides which, it must be remembered that Serjeant Stamford expressly offered to produce Winter in Court†, if Throckmorton denied the truth of his examination: upon which, the prisoner seems to have admitted that the facts in Winter's statement were true, though he denied that they made out the crime of treason. This offer to produce the witness, waived by the prisoner, for whose benefit the provision was introduced, might not unreasonably be considered as equivalent to a compliance with the terms of the statutes. There is one circumstance in this trial, which *See ante p, 83. † See ante p. 72.

ought not to be passed over without an observation; it appears that after the trial was over, the jury were required to give recognizances to answer for their verdict, and were afterwards imprisoned for nearly eight months and heavily fined by a sentence of the Star-Chamber. Such was the security which the trial by jury afforded to the subject in those times; and such were the perils to which juries were then exposed, who ventured to act upon their conscientious opinions in state prosecutions! But even these proceedings against the jury, monstrous as they appear to our improved notions of the administration of justice, must not be considered as a wanton exercise of unlawful power on this particular occasion. The fact is, that the Judges of England had for centuries before exercised a similar authority*, though not without some murmuring against it; and it was not until more than a century afterwards, that in the reign of Charles II. a solemn decision was pronounced against its legality.

Shortly after the period of this trial, during the reign of Philip and Mary, it was decided by the Judges, that though Justices of Assize, Oyer and Terminer, Gaol Delivery, or the Peace, have no power to impose fines on jurors who make a false oath before them, they may order them to appear at a future day before themselves, or before the Privy Council; "by which," says Serjeant Hawkins †, "it seems to be implied that such jurors were then thought to be some way or other punishable by such judges, or at least by the King's Council: for otherwise it would be to little purpose to bind them to appear before them." At the latter end of the reign of Elizabeth, one Wharton and two other persons being indicted and tried for murder, * Reeves's History of the Law, vol. iv. p. 195, vol. iii. p. 105,

Book ii, c. xxii. s. 20.

were found guilty by the jury of manslaughter only, against clear evidence and the direction of the Court:

upon which," says the reporter*, "the Judges Popham, Gawdy, and Fenner, were very angry (valdè fuerunt irati), and all the jurors were committed and fined, and bound for their good behaviour." In another report† of the same case, it is stated that several of the jurors, who were the principal leaders of the others, and were suspected of being corrupted by the friends of the prisoners, were not only imprisoned and fined, and bound for their own good behaviour, but were compelled to give security for the good behaviour of the prisoners acquitted by them. "They were so punished," it is said, "by the advice of all the Justices;" and Chief-Justice Popham affirmed "that there were precedents for this course, which he cited, declaring that such an offence was not to be suffered." In the reign of James I. ‡ it was held by the Lord Chancellor Egerton, afterwards Lord Ellesmere, together with the two Chief Justices, Sir John Popham and Sir Edward Coke, and the Lord Chief Baron Sir Thomas Fleming, that when a party indicted is found guilty on the trial, the jury shall not be questioned; "but on the other side, when a jury hath acquitted a felon or traitor against manifest proof, they may be charged in the Star-Chamber for their partiality in finding a manifest offender not guilty." After the abolition of the Star-Chamber, there were several instances, in the beginning of the reign of Charles II., in which it was resolved that both grand and petit juries might be fined for giving verdicts against plain evidence and the directions of the Court §.

The practice of fining juries for their verdicts was, *Yelverton's Reports, p. 23. Noy's Reports, p. 48. 12 Coke's Reports, p. 23, 24.

§ See Hawkins's Pleas of the Crown, Book ii. c. xxii. sect. 20.