rather an advantage than a prejudice in having the court their only counsel. Whereas, on the other side, the very speech, gesture, countenance, and manner of defence of those who are guilty, when they speak for themselves, may often help to disclose the truth, which probably would not so well be discovered from the artificial defence of others speaking for them. 2. c. 48. Sect. 3. But the law allows a defendant the same benefit of (d) S. P.C. 151. counsel in an (d) appeal, whether capital or not capital, as in any Dr. and St. bk. other action. Perhaps for this reason among (e) others, because Dyer, 296. appeals are presumed to be generally carried on with greater Keilway, 176. heat and spleen than indictments, and yet are not so much to be Finch, 386. favoured, as being for the most part rather grounded on a desire of private revenge than of public justice; and therefore the defendant shall have at least the same advantage in them as in common actions. 1 Bulst. 85. 9 E. 4. 2. B. Corone, 54. F. Corone, 31. (e) Dr. and St. bk. 2. c. 48. 1 St. Tr. 569. Sect. 4. Also upon indictments, the court will never refuse to assign the prisoner counsel to argue a doubtful point of law, happening to arise at or after his trial; as where it shall appear questionable whether the facts proved, if true, fully (f) amount (f) 3 Inst. to the crime charged against him; or whether the persons offered 137. to be evidence against him be (g) legal witnesses, in respect to Rush. Stafford, such or such exceptions against them; or whether certain returned (h) of his jury can be lawful jurors, in respect of certain (5) 2 St. Tr. objections against them; or whether the (i) indictment or (k) (h) 3 St. Tr. process, &c. be strictly legal; in all which cases the prisoner must 135. (propose the point, and (m) if the court think it will bear a debate, they will assign him counsel to argue it. persons 671. 520. 3 Inst. 29. 1 Levinz, 68. C. Car. 147. 2 Hale, 236. (k) 3 Inst. 29. 137. 6 Coke, 14. (1) 3 Inst. 137. 2 St. Tr. 762. (m) 2 St. Tr. 694. 701.709. 763, 764. 3 St. Tr. 876. 137. Sect. 5. Also, wherever a prisoner hath a (n) pardon or other (n) 3 Inst. 29. (0) special matter to plead to an indictment, or an (p) error to 26 Assize, 46. assign in order to reverse an outlawry, the court will of course assign him counsel. And it is (q) said, that for such collateral matters any one may be of counsel to the prisoner without any B. Cor. 128,129. assignment. F. Off. de Court, 34. (0) 1 H. 7. 23. Finch, 386. (p) 2 Jones, 180. C. Car. 365. Yet in the Year Book of 1 H. 7. 13. the court refused it, because the party was of very bad fame. (q) 2 Jones, 180. Str. 824. 9 State Trials, 85. Foster, 232. See also Ratcliffe's case, Foster, 42. where upon the trial of a collateral issue the prisoner had the assistance of counsel. Sect. 6. But if a question arise on the trial of a peer concerning the course of parliamentary proceedings, the lords will not (r) suffer it to be argued by counsel, but will debate it among (r) 2 St. Tr. themselves. Duchess of Kingston for bigamy, before the peers, 694. 696. Vide the trial of the 11 State Trials. (s) 7 H. 4. 36. Inst. 29. 137. S. P. C. 151. 3 Sect. 7. There is a case in the Year Book of (s) Henry the Fourth, where a serjeant at law, as amicus curia, offered his opinion to the court concerning the trial of an indictment of death, that it was not proper to proceed in it till the year and day were passed, nor doth he appear to have been any way reprehended for it. (t) But it is not safe for any one to be either counsel or (t) 2 St. Tr. 272, solicitor to one in prison for a capital crime,in order to prepare 763.768. him for his trial, without an assignment from the court. But by 273. 712. 743. (u) 3 St. Tr. 133. (x) 2 St. Tr. (y) 2 St. Tr. leave of the court, prisoners have sometimes been indulged the assistance of counsel, not only to (u) advise them in prison, but (x) also to stand by them at the bar: but it is said, (y) that, in strictness, they ought not to be prompted by them as to matters of fact, (2) nor to have the assistance of any papers drawn up by counsel to prepare them for their trial. 2 St. Tr. 743. 762, 763. 770. (a) 3 St. Tr. 233. (b) 1 Bulst. 85. See Henry's case, 1 Burr.638. Sir Bartholomew Shower was the first counsel assigned act. Sect. 8. After a prisoner hath had counsel assigned him, the court will not (a) discharge them without his consent, though they desire it, but will sometimes add others to them. Sect. 9. It is (b) said, that the court cannot assign an appellee any of the king's counsel; but that if they will, they may be either for or against them. Sect. 10. It having been found by experience that prisoners have been often under great disadvantages from the want of counsel, in prosecutions of high treason against the king's person, which are generally managed for the crown with greater skill and zeal than ordinary prosecutions, it is enacted by 7 Will. 3. c. 3. "That all and every person and persons whatsoever that shall be "accused and indicted for high treason, whereby any corruption by virtue of this" of blood may or shall be made to any such offender or offenders, or to any the heir or heirs of any such offender or offenders, or for misprision of such treason, shall be received and admitted "to make his and their full defence by counsel learned in the "law and in case any person or persons so accused or indicted "shall desire counsel, the court, before whom such person or persons shall be tried, or some judge of that court, is autho"rised and required, immediately upon his or their request, (c) of Lord George « to assign to such person or persons, such and so many counsel, "not exceeding two, as the person or persons shall desire, to "whom such counsel shall have free access at all seasonable "hours; any law or usage to the contrary notwithstanding." Buller, Justice, doubted whether this application ought not to be made by the prisoner himself at the bar, the words of the statute being upon his or their request;" but the attorney-general consenting, the motion was allowed. Douglas, 591. (c) In the case Gordon, Mr. Erskine moved that counsel might be as signed; but See Ld. Wintouns's case, 6 State Trials, p. 17. 66 66 Sect. 11. But by 7 Will. S. c. 3. s. 3. it is provided, "That any person being indicted of such treason may be outlawed, "&c. and where by the law, after such outlawry, he may come in "and be tried, he shall upon such trial have the benefit of the "said act." Sect. 12. And by 7 Will. 3. c. 3. s. 12 and 13. it is further provided, "That nothing in the said act shall extend, or be construed "to extend to any impeachment or other proceedings in parlia"ment whatsoever. And also, that it shall not any ways extend "to any indictment of high treason, nor to any proceedings thereupon for counterfeiting his majesty's coin, his great or "privy seal, his sign manual, or privy signet." 66 Sect. 13. But now by 20 Geo. 2. c. 30. it is also enacted, "That all and every person and persons whatsoever who shall be "impeached by the Commons of Great Britain of any high trea"son, whereby any corruption of blood may or shall be made to "any any such offender or offenders, or to any the heir or heirs of any "such offender or offenders, or for misprision of such treason, "shall be received and admitted to make his or their full defence "by counsel learned in the law, not exceeding two counsel, who "shall be assigned for that purpose, on the application of the "party or parties impeached at any time after the articles of im"peachment shall be exhibited by the Commons." As to the second particular, viz. Where a prisoner may have a copy of the indictment against him. (d) 1 Lev. 68. Moor, 666. Sect. 14. It is said, (d) that by the common law it is always denied in cases of treason or felony (1). Yet if a prisoner take a legal exception to an indictment, it is said, (e) that the court will grant him a copy of so much as concerns his exception. 3 Also, if he have such matter to plead which cannot well be put into form without knowledge of the charge against him as laid in the indictment, as autrefoits acquit, &c. it is (ƒ) said, that the court will give him the heads of the indictment, to enable him to have his plea so drawn as to suit the charge against him. Sect. 15. But by 7 Will. S. it is enacted, "That every person " and persons indicted for high treason, except for counterfeiting "the coin, or the great or privy seal, or sign manual or privy 66 signet, shall have a true copy of the whole indictment, but not "the names of the witnesses, five days at the least before trial, "to advise with counsel thereupon, to plead and make their de"fence, his or their attorney or agent requiring the same, and paying the officer his reasonable fees for writing thereof, not "exceeding five shillings for the copy of every such indictment." 2 St.Tr.711.763. 862, 863, 864. 1 2 1 Siderfin, 85. (f) 2 St. Tr. 711. Foster, 40. See 1 Burr. 643. Sect. 16. It is said this must be intended five days before arraignment, because the prisoner pleads instanter upon the Douglas, 591. arraignment. What exceptions may be taken to such indictment, and when, hath been shewn, chapter the twenty-fifth (g). (g) Sect. 145 to 150. + Sect. 17. It is also enacted by 7 Anne, c. 21. s. 11. “That " from and after the decease of the Pretender, when any person "is indicted for high treason, or misprision of treason, a list of "the witnesses that shall be produced on the trial for proving "the said indictment, and of the jury, mentioning the names, (p) (p)9 St.Tr.679. "profession, and places of abode of the said witnesses and jurors, the case of John (1) By an order of the judges in the 26 Car. 2. (prefixed to Kelynge's Reports) made for the regulation of the Old Bailey sessions, it is ordered, "That no copies of any indictment for felony be given without special order, upon motion made in open court at the general gaol-delivery; for the late frequency of actions against prosecutors (which cannot be without copies of the indictment) deterreth people from prosecuting for the king upon just occasions." And agreeable to this practice, it is usual upon the circuits to apply to the court for a copy of the indictment, upon the acquittal of the 66 shall Mathews. prisoner, where the prisoner intends to bring an action for a malicious prosecution; which the court grants or refuses in its discretion, according to the circumstances of the case. But in Brangan's case, 1 L. C. L. 82. Willes, C. J. is reported to have said, that by the laws of this realm, every prisoner upon his acquittal has an undoubted right and title to a copy of the record, for any use he may think fit to make of it, and that after a demand, the proper officer might be punished for refusing to make out a copy. (i) The case of Lord George Gordon, Hilary Term, 21 Geo. 3. was the first which has happened since this act took effect. 66 (i) shall be also given at the same time that the copy of the in"dictment is delivered to the party indicted; and that copies of "all indictments for the offences aforesaid, with such lists, shall "be delivered to the party indicted, ten days before the trial, and "in presence of two or more credible witnesses." The attorney-general, as the only method of complying with the directions of the act, moved the king's bench for a rule upon the sheriff, to deliver to the prosecutor a list of the jurymen he intended to return upon the panel, in order that the prosecutor might be enabled to deliver such list to the prisoner; and the rule was drawn accordingly; for the terms of which, vide Douglas, 591. 66 Sect. 18. But it is enacted by 6 Geo. 3. c. 53. "That nothing contained in the above last recited act shall any ways "extend to any indictment of high treason for counterfeiting his majesty's coin, the great seal or privy seal, his sign manual or privy signet, or to any indictment of high treason, or to any pro"ceedings thereupon against any offender or offenders who by any act or acts now in force is and are to be indicted, arraigned, "tried, and convicted by such like evidence, and in such manner, "as is used and allowed against offenders for counterfeiting his majesty's coin." 66 66 19. CHAP. XL. OF THE JURY. FOR the better understanding what more particularly relates to a (a) Chap. 5. s. trial by the country in capital cases, having shewn, (a) that by virtue of a special commission, justices of oyer and terminer may sit in one county for the trial of a fact in another by the proper (b) Chap. 23. s. jurors: And having also shewn (b) what is a proper place from whence a visne may come : 92, 93. I shall in this place only consider, 1. From what county the jury is to be returned. 2. By virtue of what process. 3. Before what court. 4. How they may be challenged. As to the first of these particulars, viz. From what county the jury is to be returned. I shall endeavour to shew, 1. From what county they are to be returned for the trial of the general issue. 2. From what county for the trial of a foreign plea. As to the FIRST POINT, viz. From what county a jury is to be returned for the trial of the general issue. Sect. Sect. 1. I take it to be (c) agreed, that (d) regularly by the common law they must be returned in all cases, for the trial of the general issue, from the same county wherein the fact was committed. And it is said, that in an appeal of death, where the wound was given in one county, and the party died in another, the jury, (e) ought to be returned from each county before the statute of 2 and 3 Edw. 6. c. 24. since which the whole may tried either upon an (ƒ) indictment or appeal in the county wherein the death happens. 66 be s. 35. 2 Hale, 262. murderers examined by three in any county by special com mission. Sect. 2. But it is enacted by 33 Hen. 8. c. 23. "That if any person being examined by the king's council, or three of them, Traitors and upon any manner of treasons, misprisions of treasons, or "murders, do confess any such offences, or that the said council, privy counsel❝or three of them, upon such examination, shall think any person fors may be tried "so examined, to be vehemently suspected of any treason, misprisions of treasons, or murder, that then in every such case, by "the king's commandment, his majesty's commission of oyer and "terminer under the great seal, shall be made by the chancellor "of England to such persons, and into such vills and places as "shall be named and appointed by the king, for the speedy trial, "conviction, or delivery of such offenders; which commissioners shall have power to enquire, hear, and determine all such treasons, misprisions of treasons, and murders, within the places "limited by their commission, by such good and lawful persons "as shall be returned before them by the sheriff, or his minister, or any other having power to return writs and process for that purpose, in whatsoever other shire or place within the king's "dominions, or without, such offences were done or committed, " and that in such cases, no challenge for the shire or hundred "shall be allowed." (1) 66 Sect. 3. It hath been (g) adjudged, that this statute, as far as (g) 1 And. 104. it relates to treason done within the realm, is repealed by 1 and 143. 2 Philip & Mary, c. 10. which enacts, "That all trials for treason "shall be according to the common law." But as to (h) murder, (h) 1 And. 194. and (i) misprision of treason, it still seems to continue in force. () Sup. c. 25. And as to high (k) treason done without the realm, it doth not B. Cor. 220. seem material whether it be in force or not, because that is fully 3 Inst. 24. provided for by 35 Hen. 8. c. 2. as hath been more fully shewn, (k) Dyer, 286. Chapter 25. sect. 49, 50, 51, 52, 53. S. 13. s. 11. Sect. 4. It hath been (7) adjudged, that the word "murder" () 1 And. 194. in this statute shall have the same strict construction as in the (m) (26. Bk. 1. c. (m) Sup. c. 33. statutes which take away the benefit of clergy from murder, and consequently shall not extend to one examined before the council as accessary only, and not as principal; for murder is one offence, and the being accessary to it is another. (n) Bk. 1. c. 19. Sect. 5. Having shewn already, that he who steals (n) goods s. 52. in one county, and carries them into another, or does a fact in one Sup. c. 23. s. 47. county which proves a (0) nuisance to another, may be indicted c. 25. s. 38. (1) In the case of The King v. Sawyer, who was tried, under a special commission, at the Old Bailey, in Nov. 1814, for a murder committed at Lisbon, in Portugal, it was held, after solemn argument, before the twelve judges, that this sta (0) Sup. c. 25. or sect. 37. tute extended to a murder committed by a British subject, within a foreign independent state. But quare, how can a fact there committed be against the peace of the king, where his laws do not prevail? |