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and on the other excludes all personal resentments, the sole affection which remains to influence the integrity of those who alone are entitled to put the public power into action, during the short period of their authority, is, that their own fate as subjects is essentially connected with that of the man whose doom they are going to decide.
In fine, such is the happy nature of this institution, that the judicial power, a power so formidable in itself, which is to dispose, without finding any resistance, of the property, honour, and life of individuals, and which, whatever precautions may be taken to restrain it, must in 'a great degree remain arbitrary, may be said, in England, to exist,—to accomplish every intended purpose,--and to be in the hands of nobody. *
In all these observations on the advantages of the English criminal law, I have only considered it as connected with the constitution, which is a free one; and it is in this view alone that I have compared it with the juris
* The consequence of this institution is, that no man in England ever meets the man of whom he may say, “ That “ man has a power to decide on my death or life." If we could for a moment forget the advantages of that institution, we ought at least to admire the ingenuity of it.
prudence received in other states. Yet, abstractedly from the weighty constitutional considerations which I have suggested, I think there are still other interesting grounds of preeminence on the side of the laws of England.
In the first place, they do not permit that a man should be made to run the risk of a trial, but upon the declaration of twelve persons at least (the grand jury). Whether he be in prison, or on his trial, they never for an instant refuse free access to those who have either advice or comfort to give him ; they even allow him to summon all who may have any thing to say in his favour. And lastly, what is of very great importance, the witnesses against him must deliver their testimony in his sence; he may cross-examine them, and, by one unexpected question, confound a whole system of calumny: indulgences these, all denied by the laws of other countries.
Hence, though an accused person may be exposed to have his fate decided by persons (the petty jury) who possess not, perhaps, all ihat sagacity which in some delicate cases it is particularly advantageous to meet with in a judge, yet this inconvenience is amply compensated by the extensive means of defence with which the law, as we have seen, has pro
vided him. If a juryman does not possess that expertness which is the result of long practice, yet neither does he bring to judgment that hardness of heart, which is, more or less, also the consequence of it; and bearing about him the principles (let me say, the unimpaired instinct) of humanity, he trembles while he exercises the awful office to which he finds himself called, and in doubtful cases always decides for mercy.
It is to be farther observed, that, in the usual course of things, juries pay great regard to the opinions delivered by the judges ; that, in those cases where they are clear as to the fact, yet find themselves perplexed with regard to the degree of guilt connected with it, they leave it, as has been said before, to be ascertained by the discretion of the judge, by returning what is called a special verdict; that, whenever circumstances seem to alleviate the guilt of a person, against whom nevertheless the proof has been positive, they temper their verdict by recommending him to the mercy of the king (which seldom fails to produce at least a mitigation of the punishment); that, though a man once acquitted can never, under any pretence whatsoever, be again brought into peril for the same offence, yet a
new trial would be granted if he had been found guilty upon evidence strongly suspected of being false. Lastly, what distinguishes the laws of England from those of other countries in a very honourable manner is, that, as the torture is unknown to them, so neither do they know any more grievous punishment than the simple deprivation of life.
All these circumstances have combined to introduce such a mildness into the exercise of criminal justice, that the trial by jury is that point of their liberty to which the people of England are most thoroughly and universally wedded; and the only complaint I have ever heard uttered against it, has been by men who, more sensible of the necessity of public order than alive to the feelings of humanity, think that too many offenders escape with impunity.
The Subject concluded. Laws relative to Imprison
But what completes that sense of independence which the laws of England procure to every individual (a sense which is the no
blest advantage attending liberty) is, the greatness of their precautions upon the delicate point of imprisonment.
In the first place, by allowing, in most cases, enlargement upon bail, and by prescribing, on that article, express rules for the judges to follow, they have removed all pretexts, which circumstances might afford, for depriving a man of his liberty.
But it is against the executive power that the legislature has, above all, directed its efforts : nor has it been but by slow degrees that it has been successful in wresting from it a branch of power which enabled it to deprive the people of their leaders, as well as to intimidate those who might be tempted to assume the function; and which, having thus all the efficacy of more odious means without the dangers of them, was perhaps the most formidable weapon with which it might attack public liberty.
The methods originally pointed out by the laws of England for the enlargement of a person unjustly imprisoned, were the writs of mainprise, de odio et atia, and de homine replegiando. Those writs, which could not be denied, were an order to the sheriff of the county in which a person was confined, to in