of Edward VI. and Queen Mary, there is no instance of the admission of the vivâ voce examination of witnesses, either for the prosecution or the defence, in cases of treason or other state offences. About that period it first began to be sparingly introduced, a single witness being sometimes called and sworn, as in Throckmorton's case, to verify an examination previously taken in the manner above described; this was done, however, more as a matter of indulgence to the prisoner than of right, for it was much more frequently denied by the judges than granted, and the ancient mode of proof by examinations continued to be the usual and regular course, during the reigns of Elizabeth, James I., and Charles I. No doubt the attention of all thinking people had, during that long period, been frequently and forcibly drawn to the absurdity and cruel injustice of such a system of evidence; the eloquence and reasoning of Throckmorton, Norfolk, and Raleigh, and many others, on their trials, must have produced their effect upon the public mind, though they failed to induce the judges to alter what they then considered as an inflexible rule of law; and in 1616, we find in the conduct of Sir Francis Bacon, on the trial of the Earl of Somerset, for the murder of Sir Thomas Overbury, (which was a State-Prosecution, though unwillingly instituted by the King), a tacit condemnation of the ancient practice, and an approximation to our present system of vivâ voce testimony. On that occasion Bacon, who conducted the prosecution as AttorneyGeneral, says, "For producing of my proofs, I will use this course :-those examinations that have been taken on oath shall be here read; and the witnesses, also, I have caused to be here, that they may be sworn, and justify or deny what they hear read, and diminish or add to their examinations; and *2 How, State Trials, 978.

besides that, my Lord of Somerset, and you, my Lords, the peers, may ask them what further questions you please." A similar course was adopted on the trial of Lord Audley*, in 1631, with respect to some of the witnesses, though others appear not to have been personally produced. During the Commonwealth the practice of reading the depositions of absent witnesses entirely disappeared, and has never been since revived; the trials of Lilburne, Sindercom, and several others during the Commonwealth, and the trials of the regicides and the persons accused of the Popish Plots in the reign of Charles II., being, without one exception, conducted upon viva voce testimony. It is believed that not a single instance can be produced of the reading of the deposition of an absent witness on the trial of a criminal (except in cases expressly provided for by statute), since the reign of Charles I. The gradual abolition of this unjust practice exhibits a very striking instance of an important improvement in the criminal law, effected not by any express enactment, but by the good sense and humanity which advancing civilization has necessarily introduced into our institutions.

Another instance of the same gradual tendency to improvement occurs with respect to the confessions of prisoners obtained by threats of punishment or violence, or under promises of pardon; which, in former times, were admitted without scruple as evidence, and conclusive evidence, against them but in process of time it was found that "confessions were the weakest and most suspicious of all testimony, ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision, and incapable in their nature *3 How. State Trials, 402.

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of being disproved by other negative evidence*." It was even considered (with a refinement of humanity hardly justifiable where the object is the discovery of truth) that, as the human mind, under the pressure of calamity, is easily seduced, and liable in the alarm of danger to acknowledge indiscriminately a falsehood or a truth, such confessions could not safely be acted upon in the administration of justice;" and it therefore gradually became a positive and invariable rule, that "no confession, whether made upon an official examination, or in discourse with private persons, which is obtained by the flattery of hope or by the impressions of fear, however slightly the emotions may be implanted, is admissible in evidence; for the law will not suffer a man to be made the deluded instrument of his own conviction †.' Instances, almost without end, might be adduced from the State Trials, in which improvements have been introduced without any express interference of the legislature, and the constituent parts of our legal structure have been built up one after the other, almost insensibly, till it has arrived at its present comparative perfection.

It will be observed, too, that some of the best provisions for the security of the subject and the improvement of the administration of justice have, either immediately or remotely, been caused by the unjust and oppressive proceedings of arbitrary governments, and the instruments employed by them in bad and troubled times. The base and venal conduct of the judges, in the great Case of Ship-money, had rendered them so infamous and odious throughout the land, that all reverence for the seat of justice was utterly lost. Lord Clarendon says, that "The damage and mischief sustained by the deserved re

* Hawkins's Pleas of the Crown, book ii. c. 46.

+ Ibid.

proach and infamy that attended the judges, by being made use of in this and the like acts of power, cannot be expressed, there being no possibility to preserve the dignity, reverence, and estimation of the laws themselves but by the integrity and innocency of the judges."""Tis no wonder," says he, in his speech at the Free Conference on delivering the articles of impeachment against the judges in 1641, "that an extravagant, arbitrary power, like a torrent, hath broken in upon us, when our banks and our bulwarks were in the custody of such persons; men who had lost their innocence could not preserve their courage." But it was the recent experience of the magnitude of this evil which induced Cromwell to endeavour to legalize his power, and to give popularity and moral strength to his government, by restoring respect to the administration of justice. This he did by filling the benches of the different courts with learned

and upright judges. "He sought out with great solicitude and selection, and even from the party most opposite to his designs, men of weight and decorum of character, men unstained with the violence of the times, and with hands not fouled with confiscation and sacrilege*;" such men as Hale, Windham, Whitelocke, Rolle, and Atkins, who were an ornament to their station, and to the times in which they lived, and who effected so many and such important reforms, that by the concurring testimony of all historians, there never was a time when justice was more impartially and effectively administered between man and man than during the Commonwealth. Cromwell," says Mr. Burke, "well knew how to separate the institutions expedient to his usurpation from the administration of the public justice of his country; and to this conduct of his we are indebted for the preservation of our laws, which some sense

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* Burke's Letter to a Member of the National Assembly.

less assertors of the rights of men were then on the point of entirely erasing as relics of feudality and barbarism."

A spirit of independence in the judges, and a due sense of the dignity of their office, seem, on all occasions, to have received encouragement and support from Cromwell. When Whitelocke, the Commissioner of the Great Seal of the Commonwealth, made his public address to the new judges, he urged them "to think highly of their character, and to fear no man; to be tender of that honour with which they are intrusted-the nation's honour-the honour of the law *" The learning of the Commonwealth udges, and their merits with regard to the administration of justice, were admitted even by their successors after the Restoration; as an instance of which we find, that when one of their judgments was cited in argument in the reign of Charles II., an objection on the ground of the character of the judges at the period was anticipated by the statement, that "it was well known that, excepting their criminal proceedings in those times, the law flourished, and the judges were men of learning, as Mr. Justice Twisden hath often affirmed upon the bench +." In general, however, and considering that we probably owe to them the abolition of torture, and the first introduction of sound principles of evidence, it must be confessed that the merits of the Commonwealth. judges have hitherto been imperfectly appreciated.

During the reign of Charles II., "wicked, sanguinary, and turbulent," as it is justly termed by Sir W. Blackstone, the tide of improvement appeared again to recede. Of all the tragedies that have ever been performed in Westminster Hall, that of the Popish Plot was by far the most extraordinary and *Memorials, pp. 392, 393.

+ Shower's Parliam. Cases, p. 75.