The exclusion of oral testimony on the trial of persons charged with offences against the state, formed another instance in which the royal prerogative formerly marked out a peculiar line of proceeding where the King was personally concerned, different from the usual and acknowledged course of the common law. It is extremely curious to trace the gradual and almost imperceptible steps by which the criminal law has been reformed in this respect, as juster notions of the respective rights of the crown and of the people have been introduced; and this gradual abolition of an oppressive and unjust practice is so remarkably exemplified in the total alteration which was effected in little more than a century, in the nature of the evidence adduced on State Prosecutions, that we shall need no apology for directing the attention of the reader to the subject with some particularity. There is great reason to believe, from the few and faint traces of the trial by jury in very remote periods of our history, that originally no evidence whatever, as we now understand the term, was produced in criminal cases. The inquest, which we now call the grand jury, presented an accusation

and when I came to myself, I found the executioners supporting me in their arms; they replaced the pieces of wood under my feet; but as soon as I was recovered, removed them again. Thus I continued hanging for the space of five hours, during which I fainted eight or nine times."

4th. A fourth kind of torture was a cell called "little ease.” It was of so small dimensions, and so constructed, that the prisoner could neither stand, walk, sit, nor lie in it at full length. He was compelled to draw himself up in a squatting posture, and so remain during several days.

Besides these instruments enumerated by Dr. Lingard, there were probably several others. Manacles are mentioned in one of the warrants above cited; and thumb-screws, and a kind of iron vice are still exhibited at the Tower. The two latter are stated to have been taken in the Spanish Armada, but it is not known on what authority.

against a criminal; if the accused elected to be tried by the country, instead of claiming a trial by ordeal, or by battle, the second inquest, since called the petty jury, were summoned from the neighbourhood where the offence was supposed to have been committed, and decided upon the guilt or innocence of the prisoner by their own personal knowledge of the facts only, and without hearing any evidence*. The jurors were sworn to speak the truth †, and must, therefore, of course, speak from their own knowledge and not from the testimony of others; so that, in very early times, the trial by jury was, to all intents and purposes, a trial by witnesses; and as such, was beyond all doubt an extremely valuable institution, when the state of the population was such that persons residing in the immediate neighbourhood where a crime had been committed, might reasonably be presumed to have a personal knowledge on the subject. But when the condition of society became so changed that, instead of having personal knowledge of a fact occurring in their neighbourhood, the jury were, in truth, wholly ignorant of it, or only knew it from hearsay, the old proceeding became a pernicious piece of mummery, productive of infinite oppression and tyranny, and at length gave way to the practice of producing evidence of facts to inform the consciences of the jury, who gradually lost the character of witnesses, and became judges of the truth of the accusation preferred by the grand jury.

As soon as this change in the character of the

* Reeves's History of the Law, vol. ii. p. 268 and 495; vol. iv. p. 494 and 595.

"Verum dicere," and hence veredictum, the verdict.

This mode of trial, and the distinction between it, and the method of trial by the Civil Law, is alluded to by Throckmorton, post p. 30.

jury had been effected, it is reasonable to suppose that on trials for common felonies, in which the state had no immediate concern, the evidence produced would be viva voce testimony. In such cases, the King had no personal interest in the event, beyond the forfeiture of the felon's property, and acted merely as a nominal prosecutor for the detection and punishment of crimes; there could be no reason, therefore, why the readiest and least troublesome mode of investigating the truth should not be employed, by confronting the accuser and accused in the presence of the jury who were to decide upon the facts. Accordingly, it appears from the Treatise of Sir Thomas Smith*, who wrote in the reign of Elizabeth, that the ordinary mode of trying persons indicted for murder, robbery, or theft, at that time, very nearly resembled the practice of our criminal courts at the present day; for he expressly states, that in such trials, "the witnesses against the malefactor were sworn, one after another, to say the truth; and that they were set in such a place that they might see the judges, the inquest, and the prisoner, and hear them, and be heard of them all." But in cases of political offences, it was considered "too dangerous to the Prince," according to the language of some of the Judges, to produce witnesses to be. questioned by the prisoner on the trial; besides, few witnesses declared all that they knew, or at least all that the Crown intended that they should state, without the rack; and it was in truth not unreasonable to apprehend that a witness who had made his statement under torture, or with the horrid engines of the Tower before his eyes, might retract that statement upon his examination in open Court when the circumstances of pressure were removed from him. For these reasons, we find, that in State Prosecutions * Commonwealth of England, book ii, chap. xxvi, VOL, I,

of all kinds, occurring previously to the Commonwealth, the evidence exhibited to the jury consisted almost entirely of written depositions and examinations, taken before members of the Privy Council, or commissioners specially appointed for that purpose, in the absence of the prisoner who was to be inculpated by them. The whole process of manufacturing this kind of evidence may be seen at the State-Paper Office, where a vast number of original depositions are deposited. In the first place the interrogatories to be exhibited to the different witnesses were prepared by the law officers of the Crown, under the superintendence of the Privy Council; upon the answers to these, interrogatories were then framed to be administered to the party accused. The statements, if not extracted by actual torture, were generally given under the extreme fear of it, or under a greater or less degree of pressure. An instance, taken almost at random, from the investigation into Sir W. Raleigh's Plot, in 1603, will serve to illustrate the manner in which these examinations were taken. Anthony Copley, a Catholic gentleman, who was one of the conspirators, being examined before the Privy Council, inadvertently mentioned a circumstance wholly irrelevant to the subject of inquiry, but which was likely to be injurious to Sir Griffin Markham, who was charged as a party in the same conspiracy. When his deposition was read over to him in the Tower, he requested permission to correct this part of his statement, which was refused. He afterwards writes to the Lords of the Council as follows:-"I must entreat your lordships to take a correction of my pen, upon those words of Sir Griffin Markham, impertinently set down in my former declaration; the truth is, that when the Commissioners saw that I was determined to disclose all and die, they so plied me for the King, that they took the

rhapsody of my pen in as good part as what I wrote more at my leisure; without permitting me, at a second reading, to put out this point so hazardous to the knight; whose life to redeem (truly and in my heart I speak it) I wish a hand of mine might be taken, and I be put to beg my bread*." There are some instances in which words or sentences objected to by the prisoner or witness, on reading over his examination, have a line drawn through them; but this is always so done as to leave them in a legible state, and the circumstance is duly noted in the margin. The statements thus procured from the prisoners were perused and examined by the counsel for the Crown previously to the trial; and each deposition being dissected into paragraphs, which were distinguished by letters in the margin, was carefully marked, with directions to the officer of the Court to read only certain selected passages. Thus, in the margins of the depositions examined by Sir Edward Coke (who was, perhaps, the most zealous and laborious AttorneyGeneral who ever held the office), such notes as these constantly occur in his hand-writing :-" Read A and B only"—" Read not this,"—" Cave!" (Beware!)" Hucusque," (thus far,) &c. The prisoner, therefore, was not only subjected to the gross injustice of an accusation made behind his back, but by this skilful pruning of the depositions was effectually precluded from detecting and pointing out to the jury any inconsistencies in the accusation so made.

Let us now see how this practice grew up by degrees into our present mode of trial. Previously to the time

*The passage itself is this: "On my asking Sir G. Markham of the King's person, he said, that in sooth he had a face that promised nothing;' and for his manner of drinking, he delivered it to be very unbecoming." This is marked in the margin of the original, and the words "Read not this," placed opposite to it in Coke's hand-writing.