pect, and in which his spirit, broken down by folitude, fhall receive no fupport, either from the counfels of his friends, or the looks of those who fhall offer up vows for his deliverance.

The fecurity of the individual, and the consciousness of that fecurity, being then equally effential to the enjoyment of liberty, and neceffary for the prefervation of it, these two points must never be left out of fight in the establishment of a judicial power; and I cons ceive that they neceflarily lead to the following maxims.

been previously called upon to confirm or deny them in their prefence; and a copy of the whole is delivered to him, that he may, with the affiftance of a Counsel which is now granted him, prepare for his juftification. The Judges are, as has been said before, to decide both upon the matter of law and the matter of fact, as well as upon all incidents that may arise during the course of the proceedings, fuch as admitting witneffes to be heard in behalf of the prifoner, &c.

This mode of criminal Judicature may be ufeful as to the bare discovering of truth, a thing which I do not propose to discuss here; but, at the fame time, a prifoner is fo completely delivered up into the hands of the Judges, who even can detain him almost at pleasure by multiplying or delaying his examinations, that, whenever it is adopted, Men are almoft as much afraid of being accused, as of being guilty, and especially grow very cautious how they interfere in public matters. We fhall fee presently how the Trial by Jury, peculiar to the English Nation, is admirably adapted to the nature of a free State.

In the first place I fhall remind the reader of what has been laid down above, that the judicial authority ought never to refide in an independent Body; ftill lefs in him who is already the trustee of the Executive power.

Secondly, the party accufed ought to be provided with every poffible means of defence. Above all things, the whole proceedings ought to be public. The Courts, and their diffe rent forms, must be fuch as to infpire respect, but never terror; and the cafes ought to be fo accurately afcertained, the limits fo clearly marked, as that neither the Executive power, nor the Judges, may ever hope to tranfgrefs them with impunity.

In fine, fince we muft abfolutely pay a price for the advantage of living in fociety, not only by relinquishing fome share of our natural liberty (a furrender which, in a wifely framed Government, a wife Man will make without reluctance) but even alfo by refigning part of even our perfonal fecurity, in a word, fince all judicial power is an evil, though a neceffary one, no care fhould be omitted to reduce as far as poffible the dangers of it.

And as there is however a period at which the prudence of Man muft ftop, at which the fafety of the individual must be given up,

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and the law is to refign him over to the judg ment of a few perfons, that is, to speak plainly, to a decifion in fome fenfe arbitrary, it is neceffary that this law fhould narrow as far as poffible this fphere of peril, and fo order mat ters, that when the subject shall happen to be fummoned to the decifion of his fate by the fal lible conscience of a few of his fellow creatures, he may always find in them advocates, and never adverfaries.

A

CHA P. XI.

The fame Subject continued.

FTER having offered to the reader, in the preceding Chapter, fuch general confiderations as I thought neceffary, in order to convey a juster idea of the spirit of the criminal Judicature in England, and of the advantages peculiar to it, I now proceed to exhibit the particulars.

When a perfon is charged with a crime, the Magiftrate, who is called in England a Justice of the Peace, iffues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him: he muft then hear him, and take down in writ

ing his answers, together with the different in formations. If it appears on this examination, either that the crime laid to the charge of the person who is brought before the Justice, was not committed, or that there is no just ground to fufpect him of it, he must be fet abfolutely at liberty: if the contrary refults from the examination, the party accused must give bail for his appearance to answer to the charge; unless in capital cafes; for then he muft, for safer cuftody, be really committed to prifon, in order to take his trial at the next Sefions.

But this precaution of requiring the examination of an accufed perfon, previous to his imprisonment, is not the only care which the law has taken in his behalf; it has farther ordained that the accufation against him fhould be again difcuffed, before he can be exposed to the danger of a trial. At every feffion the Sheriff appoints what is called the Grand Jury. This Affembly must be com pofed of more than twelve Men, and lefs than twenty-four; and is always formed out of the moft confiderable perfons in the Coun→ ty. Its function is to examine the evidence that has been given in fupport of every charge: if twelve of those perfons do not concur in

the opinion that an accufation is well grounded, the party is immediately discharged; if, on the contrary, twelve of the grand Jury find the proofs fufficient, the prifoner is said to be indicted, and is detained in order to go through the remaining proceedings.

On the day appointed for his Trial, the prifoner is brought to the bar of the Court, where the Judge, after caufing the bill of indictment to be read in his prefence, must ask him how he will be tried to which the prifoner anfwers, by God and my Country; by which he understood to claim to be tried by a Jury, and to have all the judicial means of defence to which the law intitles him. The Sheriff then appoints what is called the Petty Jury: this must be compofed of twelve Men, chofen of the County where the crime was committed, and poffeffed of a landed income of ten pounds by the year: their declaration finally decides on the truth or falfhood of the accufation.

As the fate of the prisoner thus intirely depends on the Men who compofe this Jury, Juftice requires that he fhould have a fhare in the choice of them; and this he has through the extenfive right which the law has granted him, of challenging, or objecting to, fuch of them as he may think exceptionable.