as a security to the subject in those state-prosecutions),' nor to reject one witness because he is single, nor always to believe two witnesses, if the probability of the fact does upon other circumstances reasonably encounter them; for the trial, as lord Hale expresses it, is not here simply by witnesses, but by jury: nay, it may so fall out that a jury, upon their own knowledge, may know a thing to be false that a witness swore to be true, or may know a witness to be incompetent or incredible, though nothing be objected against him, and may give their verdict accordingly. Presumptive or circumstantial evidence is admitted, as well as direct evidence: but Blackstone holds that it should be admitted cautiously; for the law holds that it is better that ten guilty persons escape than that one innocent suffer and sir Matthew Hale in particular lays down two rules most prudent and necessary to be ob served-1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and 2. Never to convict any person of murder or manslaughter, till at least the body

1 By stat. 7 and 8 Wm. III. it is declared that both witnesses must be to the same overt act of treason, or one to one overt act, and the other to another overt act of the same species of treason (State Tri. ii. p. 141. Foster, 235), and not of distinct heads or kinds; and no evidence shall be admitted to prove any overt act not expressly laid in the indictment. And see sir J. Fenwick's case, St. Tr. v. 40, and stat. 8 Wm. III. c. iv., made to attaint him of treason.

2 Hale, Hist. of Com. L. c. xii. § 11.

3 "Divus Trajanus Assiduo Severo rescripsit, satius esse impunitum relinqui facinus nocentis quam innocentem damnari." L.5, ff. de Pœnis. Carmignani elegantly says, “Legislator caveat oportet, ne plus criminis detegendi quam innocentiæ tuendæ desiderio concedatur." Elem. Jur. Crim. vol. i. p. 215.

4 2 Hale, P. C. 431.

be found dead; on account of two instances he mentions, where persons were executed for the murder of others, who were then alive, but missing.1

After the case for the prosecution and the defence of the prisoner are concluded, if the importance or difficulty of the cause require it, the judge sums up or recapitulates the whole of the evidence, with such observations thereon as he thinks proper for the guidance of the jury, and also informs them of the law arising thereon, pointing out the exact nature of the issue that they have to try, and the specific questions upon which the decision of that issue must depend; and then they are to consider their verdict.

When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged (unless in cases of evident2 necessity) till they have given their verdict, but are to consider it, and deliver it in with the same forms as upon civil causes; only they cannot give a privy verdict, that is to say, deliver their verdict out of court, in any criminal case which touches life or member. But the judges may either adjourn for a day of their own authority, where an adjournment is necessary for the ends of justice, in which case the jury are to be placed under the charge of bailiffs, sworn to keep them together, and suffer no access to them; or the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court. And such public or open verdict may be either general,-guilty or

1 The civil law holds the same principles, and lays great stress on the necessity of proving the corpus delicti. The celebrated criminalist Julius Clarus, counsellor to the emperor Charles V., says, Judici ante omnia debet constare de delicto. Jul. Clar. Op. quæst. iv. p. 213. 2 Co. Litt. 227. 3 Inst. 110. Fost. 27. Gould's case, Hil. 1764. 3 2 Hale, P. C. 300; 2 Hawk. P. C. 439. 4 Rex v. Stone, 6 Term. Rep. 530. 5 3 St. Tr. 731; 4 St. Tr. 231, 455, 485.

This is where they doubt

not guilty; or special,-setting forth all the circumstances of the case, and praying the judgment of the court whe ther, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. the matter of law, and therefore choose to leave it to the determination of the court; though they have an unques tionable right of determining upon all the circumstances, and finding a general verdict, if they think proper so to hazard a breach of their oaths; and if their verdict be notoriously wrong, they may be punished by fine and im prisonment after indictment or information. And in many instances in cases of misdemeanour, where the jury have found the prisoner guilty, their verdict has been mercifully set aside, and a new trial granted by the court of king's bench. But there has been no instance of grant ing a new trial where the prisoner was acquitted upon the first. Neither can any new trial be granted in cases of felony or treason; so that this is, in criminal matters, confined to cases of misdemeanour.3

If the jury, therefore, find the prisoner not guilty, he is then for ever quit and discharged of the accusation. And upon such his acquittal, or discharge for want of prosecution, he shall be immediately set at large, without payment of any fee to the gaoler. But if the jury find him guilty, he is said to be convicted of the crime whereof he stands indicted.5

After trial and conviction, the judgment of the court regularly follows, unless suspended or arrested. When upon a capital charge the jury have brought in their ver

11 Lev. 9. T. Jones, 163. St. Tr. x. 416.

2 Hawk. P. C. 442.

3 Rex v. Mawbey, 6 Term. Rep. 638. 13 East, 416, n. (b).

4 Stat. 14 Geo. III. c. xx.

5 Blackst. Com. b. iv. c. xxvii. p. 360, 361, et passim.

dict guilty, in the presence of the prisoner, he is either immediately, or at a convenient time soon after, asked by the court, if he has any thing to offer why judgment should not be awarded against him. And it is the same where the defendant is found guilty of a misdemeanour; and he is brought up, if absent, by a writ of capias, to receive his judgment. The prisoner may at this period offer any exceptions to the indictment, in arrest or stay of judgment, as, for want of sufficient certainty in setting forth either the person, the time, the place, or the offence.

And here Blackstone informs us, that in favour of life great strictness has at all times been observed in every point of an indictment. Sir Matthew Hale, indeed, complains, "that this strictness is grown to be a blemish and inconvenience in the law and the administration thereof; for that more offenders escape by the over-easy ear given to exceptions to indictments than by their own innocence." And yet, as our great commentator observes, no man was more tender of life than this truly excellent judge. But this extreme technical pedantry of the criminal law is in part remedied by the statute 7 Geo. IV. c. lxiv. sec. 20, which renders unnecessary, for the validity of a conviction, certain merely formal parts of the record. A pardon may also be pleaded in arrest of judgment.

If these resources fail, the court must pronounce the judgment which the law has annexed to the crime: and when sentence of death is pronounced, the immediate inseparable consequence thereof from the common law is attainder. This is what, in the laws of other countries, is called civil death,-the law setting a note of infamy upon the delinquent, depriving him of all civil rights, and taking no further care of him than to see him executed. And the consequences of attainder are, 1st, certain forfeitures

1 Blackst. Com. b. iv. c. xxix. p. 375. 2 Hale, P. C. 193.

of lands, and goods, and chattels to the crown, which differ according as the offence was treason or felony, and according to the nature of the interest which the criminal had in the property; and, 2d, corruption of blood, whereby at common law the attainted person can neither inherit lands nor other hereditaments from his ancestors, nor retain those he was already in possession of, nor transmit them by descent to any heir; but the same must escheat to the lord of the fee. By statute 54 Geo. III. c. cxlv., corruption of blood is, however, abolished in all cases ex cept the crimes of high treason and murder; and by stat. 3 and 4 Wm. IV. c. cvi. sec. 10, it is enacted, that corruption of blood on attainder shall not obstruct descents to the posterity of the offender, where they are obliged to derive a title through him or her to a remoter ancestor.

We are next to consider briefly how judgments, with their several connected consequences of attainder, forfeiture, and corruption of blood, may be set aside. There are two ways of doing this,—either by falsifying or reversing the judgment, or else by reprieve or pardon.

A judgment may be falsified, reversed, or avoided, in the first place, without a writ of error for matters foreign to or dehors the record (the nature of which is the same in criminal as in civil cases); that is, not apparent on the face of it, where there can be shewn some decided and radical defect or illegality in the proceedings, which totally vitiates and avoids the whole: but this is a species of case that can but seldom, if ever, occur.

Secondly, a judgment may be reversed by writ of error, which lies from all inferior criminal jurisdictions to the court of queen's bench, and from the queen's bench to the house of lords; and may be brought for notorious mistakes in the judgment or other parts of the record; as, for instance, where a man is found guilty of perjury, and