(1) R. v. Grave- for a particular purpose; and that the omission of the word nor, adj. Hil. (onerat. is not fatal, if there be the word jurat', for that fully implies it. 3 Geo. 1. (m) 1 Sid. 229, 1 Keb. 57.823. 1 Vent. 170. (n) 1 Bulst. 203. Sup. c. 10. s. 9. s. 90. As to the third particular, viz. What certainty is necessary in the caption of an indictment, in respect of the time when it was found. Sect. 127. It seems (m) agreed, that such caption must set forth a certain day and year when the court was holden, before which the indictment was found (1), and must record it as then found in the (n) present tense, and not in the preterperfect (2); for it hath been (o) adjudged, that if it describe the sessions at which the indictment was taken, as holden die Martis et die Mercurii, or as holden on such a day in such a year of the king, without (p) ascertaining what king; or if it set forth the style of the day or year in any (q) figures but Roman, it is insufficient (S). But it seems to be (r) agreed, that it is sufficient to express the year of the king, without adding that of the Lord. Also it seems, that (s) extitit præsentatum for existit is made good by the multitude of precedents. (s) 1 Sid. 140. 368. 1 Keble, 37. 2 Keble, 367. 5 Coke, 120. F. Indictment, 20. B. Indict. 34. 10 Ed. 4. 15. (t) Dyer, 69. (u) C. Jac. 276, 277. (2) C. Eliz. 137. 606. 738.751. As to the fourth particular, viz. What certainty is necessary in the caption of an indictment in respect of the place where it was found. Sect. 128. It seems agreed, that if such caption either set forth no (t) place at all where the indictment was found, or do not (u) shew with sufficient certainty, that the place set forth is within the jurisdiction of the court before which it was taken, as where it sets forth the indictment as taken at a sessions of the peace holden for such a county at B. (x) without shewing in what county B. is, otherwise than by putting the county into the margin, is insufficient. Also if an act of parliament, whether it be in print or not, appoint, that the quarter-sessions of such a county shall be holden at such a place only, and not elsewhere, (y) Dyer, 135. except for cause of the plague, &c. it seems (y) that the caption of every indictment taken at any such sessions, is insufficient, unless it expressly shew, that it was holden at such place. But it hath been (2) adjudged, that the caption of an inquisition as taken at B. before J. S. coroner of the king's liberty of B. aforeVide Pop: 208. said, is good, without expressly shewing that B. is within the liberty of B. for it cannot but be intended. (z) 5 Coke, 120, 121. C. Eliz. 490. As to the TENTH GENERAL POINT of this chapter, viz. Upon what proof, and within what time after the offence, an indictment may be found. Sect. 129. It (a) seems, that before the first of Edward the (a) 3 Keble, 68. B. Corone, 220. Sixth no certain number of witnesses was required upon the in- 2 Jones, 233. dictment or trial of any crime whatever. For it seems to be (b) B. Cor. 220. generally (b) agreed, that the statutes of the first and second of S. P. C. 164. Dyer, 132. Philip and Mary, in restoring the order of trial by the course of 1 Jones, 233. the common law, took away the necessity of two witnesses in all Keilwood, 18. cases within those statutes; from whence it plainly seems to fol- 49. low, that they were not required by the common law. It is 24, 25, 26. holden (c) indeed by some, that, by the ancient common law, one Sum. 208. 262. witness was not sufficient to convict any person of high treason; 1 Hale, 299, and this is said to be grounded on the law of God, expressed (e) 3 Inst. 26. both in the Old and New Testament. But granting that one Raymond, 408. witness was not sufficient for a conviction, it doth not follow but See this subject examined very that he might be sufficient for an indictment. much at large Vide 3 Inst. 300. Also, however the law might have stood in relation to these Fos. 232 to 246. matters before the Conquest, it seems to have been wholly altered long before the statute of Edward the Sixth. And I rather incline to this opinion, since I find it so little supported by the generality of the authorities cited by Sir Edward Coke for the proof of the contrary, which wholly relate either to the proof) 35 H. 6. of an essoin, or of a summons (d) in a real action, or (e) of the 46, 47. default of persons summoned on a jury, or (ƒ) other matters rather less to the point. 30. Bract. 354. 48 Ed. 5. 15 Ed. 4. 1. And as to the above recited passages of Scripture, it may be answered, that those in the Old Testament concern only the judicial part of the Jewish law, which being formed for the particular government of the Jewish nation, doth not bind us any more than the ceremonial; and that those in the New Testament contain only prudential rules for the direction of the government of the church in matters introduced by the Gospel, and no way control the civil constitutions of countries. To which may be added, that whatsoever may be said either from reason or Scripture for the necessity of two witnesses in treason, holds as strongly in other capital causes, and yet it is not pretended, that 1 Hale, 299. there is or ever was any such necessity in relation of any other crime but treason. treason. Sect. 130. But by 1 Edw. 6. c. 12. s. 22. it is enacted, "That Two witnesses "no person or persons shall be indicted, arraigned, condemned, required in "or convicted for any offence of treason, petit treason, or misprision of treason, &c. unless the same offender or offenders be "accused by two sufficient and lawful witnesses, or shall wil lingly and without violence confess the same." Sect. 131. Also by 5 and 6 Edw. 6. c. 11. s. 8. it is further Or two lawful enacted, "That no person or persons shall be indicted, arraigned, accusers. condemned, convicted, or attainted, for any of the treasons in 66 "the act mentioned, or for any other treasons that then were, or "afterwards should be, which should after be perpetrated, com 66 mitted, or done, unless the same offender or offenders be there"of accused by two lawful accusers; which said accusers at the "time of the arraignment of the party so accused, if they be then living, shall be brought in person before the party so accused, “and avow and maintain what they have to say against the said " Treasons to be 66 party, to prove him guilty of the treasons or offences contained " in the bill of indictment laid against the party arraigned, unless "the said party arraigned shall willingly, without violence, con"fess the same." Sect. 132. But by 1 and 2 Philip and Mary, c. 10. it is tried as at com- enacted, "That all trials after that statute to be had, awarded, or made for any treason, shall be had and used only according "to the due order and course of the common law." mon law before the 1 Edw. 6. Two lawful witnesses required in open court. Indictment to three years. 66 Sect. 133. Also by 1 and 2 Philip and Mary, c. 11. it is enacted, "That all and every person and persons who shall be "accused or impeached of any of the offences contained in that "statute, or of any other offence or offences concerning the impairing, counterfeiting or forging of any coin current within this "realm, shall and may be indicted, arraigned, tried, convicted or "attainted by such like evidence, and in such manner and form "as has been used and accustomed within the realm, at any time "before the first year of Edward the Sixth." 66 66 66 Sect. 134. By 7 Will. S. c. 3. it is further enacted, "That no person or persons whatsoever shall be indicted, tried, or at"tainted of high treason, whereby any corruption of blood may 66 or shall be made to any such offender or offenders, or to any "the heir or heirs of any such offender or offenders, or of misprision of such treason, but by and upon the oaths and testimony of two lawful witnesses, either both of them to the same "overt act, or one of them to one, and the other of them to ano"ther overt act of the same treason, unless the party indicted "and arraigned, or tried, shall willingly, without violence, in open court confess the same, or shall stand mute, or refuse to plead; or in cases of high treason, shall peremptorily challenge σε above the number of thirty-five of the jury." rr Sect. 135. And by 7 Will. S. c. 3. it is further enacted, “That' be found within" no person or persons whatsoever (such only excepted as shall "be guilty of designing, endeavouring, or attempting any assassination on the body of the king, by poison or otherwise) shall "be indicted, tried, or prosecuted for any such treason as afore"said, or for misprision of such treason, that shall be committed "or done within the kingdom of England, dominion of Wales, "or town of Berwick upon Tweed, unless the same indictment "be found by a grand jury within three years next after the trea son or offence done and committed." Sect. 136. But by 7 Will. 3. c. 7. it is provided, that nothing in this act "shall any ways extend to any impeachment, or other proceedings in parliament, nor to any indictment of high treason, nor to any proceeding thereupon for counterfeiting his majesty's coin, his great seal, or privy seal, his sign manual, or privy signet." Sect. 137. FIRST, That where the statute of the first of Edward the Sixth requires, that the party be. accused by two lawful lawful witnesses, and that of the fifth and sixth of Edward the Sixth, that he be accused by two lawful accusers, they both mean (a) B. Cor. 220. the very (a) same thing, because the common law admits of no Summary, 208. . other accusers but witnesses. 3 Inst. 25, 26. 1 Hale, 301. Sect. 138. SECONDLY, That according to the general (b) opi- (b) S.P.C. 164. nion, it is not required either by the first, or the fifth and sixth B. Corone, 2. of Edward the Sixth, that such accusers or witnesses be present But 3 Inst. 25, Summary, 208. with the indictors in person, but that they may send their accu- 26. seems consation to the indictors in writing under their hands, which will trary. be sufficient even after their death. Also it is observable, that the books which speak of this matter do not expressly say, that such accusation must be upon oath, but surely this cannot but be intended; for how can any accuser be said to be a lawful witness if he be not upon his oath? But this is cleared by the seventh of William the Third, as to the treasons within that sta- 1 Hale, S04. tute; for it expressly provides, " that no person shall be indicted "thereof, but by and upon the oath and testimony of two lawful "witnesses." be Sect. 139. THIRDLY, By the judgment both of Coke (c) and Hale, (d) one who can only witness, by hearsay, what he has heard a good witness say, is not a lawful accuser within any of these statutes; for if this were to be allowed, nothing would more easy than, in any case, where there is one witness, to get a second, which would totally elude the provision of the statutes in requiring two lawful witnesses, &c. (c) 3 Inst. 25. (d) Sum. 208. Con. Dyer, 99. S. P. C. 164. Foster, 234. 1 Hale, 306. 243. B. Cor. 220. Sed vide sup. s. 134. (e) 2 Andr. 66. 3 Inst. 25. Sect. 140. FOURTHLY, That the words, "unless the party "shall willingly, without violence, confess the same," in the 1st, and 5 and 6 Edw. 6. are to be understood (e) where the party accused upon his examination, before his arraignment, willingly confesses the same without torture: but it is observable, that 7 Will. 3. is thus expressed, "unless the party indicted and arraigned, or tried, shall willingly, without violence, in open court 6 St. Tr. 58. "confess the same." 66 confession upon the arraignment of the party. Sect. 141. FIFTHLY, That one witness to one and another witness to another overt act of the very same (ƒ) treason, have been construed to be sufficient, within the statutes of the first, and the fifth and sixth of Edward the Sixth; and the express words of the seventh of William the Third are agreeable hereto (1). decided in Francia's case, that these words only mean a Foster, 241. (ƒ) Raym.407. Kelynge, 9. Foster, 237. 3 St. Tr. 204. Sect. 142. SIXTHLY, That the statute of 1 and 2 Philip and Mary, c. 10. by enacting, "That all trials of treason shall from "thenceforth be according to the course of common law," doth not (g) take away the necessity of two witnesses upon an indict- (g) S. P. C. ment, required by the 1st, and 5 and 6 Edw. 6. c. 6. because the 90. 164. indictment is no part of the trial, but is more properly the accu- B. Cor. 220. sation to be tried. (1) And a collateral fact, not tending to the proof of the overt acts, may be proved by one witness. Salkeld, 634. 5 State Trials, 17; or by the VOL. II. A A Sect. S Inst. 24 to 27. Foster, 235. confession of the prisoner, 8 St. Tr. 255. for the words of the statute are confined to the proof of the overt acts, Fos. 242. (h) B. Cor. 220. 3 Inst. 24. Foster, 233. (i) B. Cor. 220. 3 Inst. 24. Foster, 233. (k) Vide sup. s. 140. Vide B. Cor. Sect. 143. SEVENTHLY, (h) That the said statute of 1 and 2 Philip and Mary doth not extend to misprision of treason. But this is expressly provided for by 7 Will. S. as to such treasons as are within that statute, and therefore there must be two witnesses to the indictment, as well as to the trial of every such misprision. Sect. 144. EIGHTHLY, That (i) petit treason is within the 1st, and 5 and 6 Edw. 6. and 1 and 2 Ph. and Mary, c. 10. but not within the 7 Will. 3; from whence it follows, that two witnesses are required to the indictment, and not to the trial of it; and that two witnesses are not necessary even upon the indictment, if (k) the party, upon his examination, confess it. Sect. 145. NINTHLY, That the statute of i and 2 Ph. and Mary, c. 11. which enacts, "That all persons accused of any of"fences concerning the impairing, counterfeiting, or forging the coin, shall be indicted and tried as at the common law," hath (1) 2 Jones, 233. been construed (?) to extend to clipping, and all other offences in impairing the coin, which have been made treasons since the said statute of 1 and 2 Ph. and Mary. From whence it may be probably argued, that the statute of 7 Will. 3. by "expressly providing, that nothing therein shall extend to high treason for "counterfeiting the coin," intended in like manner, that it should not extend to any other high treason concerning the coin (1). 220. 3 Keble, 68. 66 By the statute 39, 40 Geo. 3. c. 93. in cases of treason, for compassing the death of the king, where the overt act alleged shall be the assassination or killing of the king, or any direct attempt against his life, or any direct attempt against his per"son, whereby his life may be endangered or his person suffer bodily harm, the person or persons charged with such attempt "shall and may be indicted, arraigned, tried, and attainted in the "same manner and according to the same course and order of "trial in every respect, and upon the like evidence, as if such person or persons stood charged with murder," notwithstanding the acts of W. 3. &c. (2) 66 As to the ELEVENTH GENERAL POINT, viz. In what cases an indictment may be quashed. (1) Indictments, being the foundation of all capital prosecutions, found in the absence of the party accused, and only the evidence for the king adduced, it is necessary that the proof of the offence should be substantial, Lord Coke, 3 Inst. 25. And it has been observed, with great strength of argument, that a grand jury ought to have the same persuasion of the truth as a petty jury, or a coroner's inquest, 4 State Trials, p. 183. But it is said by Lord Hale, 2 vol. 157. and confirmed by Pemberton, C. J. in Lord Shaftsbury's case, 3 St. Tr. p. 415. that as an indictment is merely an accusation, and the party is afterwards to undergo a full trial, they ought, upon probable evidence only, to find the bill. And it has been lately decided by all the judges, that a person committed as a principal in the same felony with another, and taken from his confinement, before the grand jury, by a surreptitious order to the gaoler, and without authority strictly regular, is a competent witness for that purpose. Indeed, many of the judges Sect. were inclined to think, that if a grand jury should find a bill upon evidence palpably improper, and the party be afterwards convicted on it by lawful evidence before the petty jury, the validity of such a conviction could not be impeached, Dr. Dodd's case, O. B. February sessions, 1777, Cases in Crown Law, 141. A grand jury, however, ought not to find an indictment upon the evidence of incompetent witnesses; and therefore where an indictinent against one Crossley was presented, and the only names on the back of it were Priddle and Holloway; and the grand jury, on its being proved to them that these two persons had been convicted of conspiracy, applied to the court at the Old Bailey in October sessions, 1788; the court told them, that they ought not to find the bill on such testimony alone; for having been convicted of an infamous crime, their competency was destroyed. MS. (2) See Vol. 1. P. 19. |