2 Inst. 49. Sect. 15. Also it hath been (k) adjudged, and appears from (k)3 Inst. 26.28 constant (1) experience, that neither the said clause of Magna (1 H. 4. 1. Charta, nor any other law, privileges a peer from being indicted 3 State Tr. 52. by a grand jury of commoners either in the king's bench, or 79. 657.951. before commissioners of oyer, or the coroner, &c. 4 St.Tr. 351, &c. Skinner, 683. 2 Inst. 49. Sect. 16. Also it seems (m) to be clear, that if a peer absent (m) 3 Inst. 31. himself, and cannot be found, he may be outlawed per judicium coronatorum, &c. Sect. 17. Also it is said, that the court of king's bench may allow a (n) pardon pleaded by a peer to an indictment in that (n) 2 Inst. 49. court; but that it cannot receive either his plea of not guilty, or confession, but only the lord steward on an arraignment before the lords. (0) 1 H. 7. 22, B. Corone, 129. Treason, 18. Sect. 18. It seems clear, that if a peer be (0) attainted of treason or felony, he may be brought before the king's bench and de- 23. manded, what he has to say why execution should not be awarded against him? And if he plead any matter to such demand, his plea shall be discussed, and execution awarded by the said court, upon its being adjudged against him. (1) As to the SIXTH POINT, viz. Whether a peer can waive a trial by his peers. F. Corone, 49. (p) 1 Rush. part 2. f. 94. Sect. 19. It hath been (p) adjudged, that if a peer, on an arraignment before the lords, refuse to put himself upon his peers, 3 Inst. 30. he shall be dealt with as one who stands mute; for it is as much Kelynge, 57. the law of the land, that a peer be tried by his peers, as a com- Yet there is said moner by commoners. Yet if one who has a title to peerage to be a record be indicted and arraigned as a commoner, and plead not guilty, and put himself upon his country, it hath been (q) adjudged, that he cannot afterwards suggest that he is a peer, and trial by his peers. pray a jury of knights. in 4 Edw. 3. Berkley put himself on his country, and was tried by a (9) Dalison, 16. As to the SEVENTH POINT, viz. In what manner the peers may require the opinion of the lord steward, or of the judges. Sect. 20. It was (r) resolved by all the judges in the Lord (r) 3 Inst. 29, Dacre's case, who was tried by commission, that no question 30. ought to be asked of the lord steward or of the judges in the Inst. 49. Kelynge, 57. absence of the prisoner. And it was (s) adjudged by the lord 3 St. Tr. 679. steward, in the Earl of Warwick's case, who was tried by the (s) 4 St. Tr. 381. house of peers in parliament, that no question ought to be asked of the judges in the absence of the prisoner. But in the Lord Audley's case, who was tried by commission, the lords triers, (t) (t) 2 Rush. p. 2. after they were withdrawn, consulted with the lord chief justice f. 101. four several times, and also sent to consult with the lord steward. 1 St. Tr. 271. (1) In the case of Earl Ferrers, April 17, 1760, it was determined by all the judges, that a peer, indicted of felony and murder, and tried and convicted thereof before the lords in parliament, ought to receive judgment for the same according to the provisions of 25 Geo. 2. c. 37. (vide infra, c. 51. s. 10.) And, secondly, supposing the day appointed by the judgment for execution should lapse Yet before such execution done, that a new time may be appointed for the execution, either by the high court of parliament before which such peer shall have been attainted, although the office of high steward be determined, or by the court of king's bench, the parliament not then sitting, and the record of the attainder being properly removed into that court. Foster, 139. (u) Kely. 54. 7 State Trials, 422, 423. Sed vide 3. Yet, notwithstanding this precedent, the judges (u) resolved in the Lord Morley's case, who was likewise tried by commission, that if after the lords were withdrawn they should send for any Inst. 29 and 30. of the judges to desire their opinions on a point in law, and the lord steward should permit them to go, they would tell the lords, if they should ask them any question, that they were not to give any private opinion without conference with the rest of the judges, and that openly in court. But they resolved, that if the lord steward should ask them any question in open court, though in the absence of the prisoner, they would answer it, because they are called to assist the court, and the demand of any question in such case is to be referred to the discretion of the lord steward. Sect. 21. When a peer is tried before the house of peers in (r) 3 State Tr. parliament, the lord steward (x) withdraws with the rest of the lords, and consults with them. 679. As to the EIGHTH POINT, viz. Whether the court may be adjourned. Sect. 22. It is agreed, (y) that where a peer is tried by the house of lords in full parliament, the house may be adjourned as often as there is occasion, and the evidence taken by parcels. Sect. 23. Also it hath been (z) adjudged, that where the trial is by commission, the lord steward, after a verdict is given, may take time to advise upon it, and that his office continues till he has given judgment. Sect. 24. Also it was (a) said to have been agreed by the judges in the Lord Dacre's case, that on such a trial the court might be adjourned; and that if the lords triers did not agree, it was holden by some they ought to be kept together all night, and by others that they might go to their several houses. Sect. 25. But it is said, (b) that there is no precedent of the lords triers ever having separated upon a trial by commission, after the evidence has been given for the king. Sect. 26. And it is said to have been (c) resolved by all the judges in the case of the Duke of Norfolk, that the peers in such case must continue together till they agree to give verdict, and the like was (d) adjudged by the lord steward in the Lord Delamere's case. (1) (1) During a trial before the house of peers in parliament, every peer present on the trial is to judge both of the law and the fact, Foster, 142.; and a lord high steward is usually, though not necessarily, appointed, rather in the nature of a speaker to regulate the proceedings, than as a judge. Foster, 145. But in the court of the high steward, which is held in the recess of parliament, he alone is judge in all points of law and practice, and the peers triers are merely judges of the fact. Foster, 142. CHAP. CHAP. XLV. OF TRIAL BY BATTLE. (1) A TRIAL by battle, at the (a) defendant's choice, is allowable c. 2. s. 19. Sect. 2. For the manner of waging battle in an appeal of treason, being according to the civil law, I shall refer to Rushworth's Collections, part 2. volume 1. folio 112 to 128. 66 (a) Finch, 421. Fleta, l. 1. c. 34. (e) C. Eliz. 62. Rastal, 42. 50. Dyer, 120. 9 178. Sect. 3. When an appellee of felony wages battle, he pleads (e) that he is "not guilty, and that he is ready to defend the same "by his body," and then (ƒ) flings down his glove; and if the H. 4. 3. appellant will join battle, he replies, "That he is ready to make (f) S. P. C. good his appeal by his body upon the body of the appellee," F. Corone, 385. and takes up the glove: and then the appellee lays his (g) right 1 H. 6. 6. hand on the book, and with his left hand takes the appellant by (g) B. Bat. 1. 6. the right, and (h) swears to this effect, Hear this, thou who 9 H. 4. 1. callest thyself John by name of baptism, that I who call my- 17 Edw. 3. 2. "self Thomas by the name of baptism, did not feloniously mur- Britton, 41. 66 66 66 17 Assize, 1. S. P. C. 178. 17 Assize, 1. 17 Edw. 3. 2. "der thy father W. by name (on the day of in the year (h) Fleta, b. 1. 66 of- at B.) as you surmise, nor am any way guilty of the c. 3,4. s. 28, 29. "said felony; so help me God;" and then he shall kiss the 9 H. 4. 3. book and say, " and this I will defend against thee by my body, B. Batt. 1. 6. as this court shall award." And then the appellant lays his right hand on the book, and with his left hand takes the appellee Britton, 41. by the right, and swears to this effect, "Hear this, thou who callest thyself Thomas by the name of baptism, that thou feloniously (on the day of of "didst murder my father W. by name; so help me God;" and then he shall kiss the book and say, "and this I will prove "against thee by my body, as this court shall award." 66 in the year - at B.) Bracton, b. 3. c. 21. s. 2. And then the court shall (i) appoint a day and place for the (i) Rastal, 42. battle, and in the mean while the appellee shall be kept in the S. P. C. 178. (k) custody of the marshal, and the appellant shall find (1) sure- (k) Fleta, b. 1. ties to be ready to fight at the time and place, unless he be an Rastal, 42. approver, in which case (m) he shall also be kept by the marshal. 9 H. 4. 3. c. 33. s. 28. S. P. C. 178. B. Batt. 1. F. Corone, 78. 111. (1) Fleta, b. 1. c. 34. s. 28. 9 H. 4. 3. 17 Assize, 1. S. P. C. 178. F. Corone, 78. 111. B. Battle, 1. 6. 17 Edw. 3. 2. Bracton, b. 3. c. 21. s. 3. says, that both parties shall be kept in custody. (m) Rastal, 42. B. Batt. 1. And the (n) night before the day of battle, both parties shall (n) 9 H. 4. 5. be arraigned by the marshal, and shall be brought into the field (0) Fleta, b. 1. before the (0) justices of the court where the appeal is depending, c. 34. s. 30, 31. S. P. C. 177, 178. Bracton, b. 3. c. 21. s. 4, 5. Britton, 40. (1) Trial by battle cannot now take place since the abolition of appeals by 59 (p) Britton, 41. at the rising of the sun, (p) bare-headed, and bare-legged from By some the ap- the knee downwards, and bare in the arms to the elbows, and pellant's head shall be covered. armed only with bastons an ell long, and four-cornered targets, and before they engage they shall both take this (q) oath, “ Hear "this ye justices, that I, A. B. have neither eat nor drank, nor "done any thing else, nor any other for me, by which the law of "God may be depressed, and the law of the Devil exalted." 9 H. 4. 3. Vide 1 H. 6. 6, 7. Dyer, 301. (q) Fleta, b. 1. c. 34. s. 30. Bracton, b. 3. c. 21. s. 4. Britton, f. 40. (r) Fleta, b. 1. c. 34. s. 31. (s) S. P. C. 178. b. See where this is done accordingly, 19 H. 6. 35. And then after (r) proclamation for silence under pain of imprisonment for a year and a day, &c. they shall begin the combat; wherein if the appellee be so far vanquished that he cannot or will not fight any longer, he may be adjudged to be (s) hanged immediately; but if he can maintain the fight till the stars appear, he shall have (t) judgment to go quit of the appeal. And if the appellant become recreant, that is, a crying coward or craven, the appellee shall not only recover his damages, but may also, as it (u) seems, plead his acquittal in bar of a subsequent indictment or appeal, and the appellant (x) shall for his perjury lose his Pais, c. 2.s. 19. liberam legem. Yet if there be other appellees in the same appeal, it hath been adjudged, (y) that it shall still stand in force against them. But for these matters I shall refer to ch. 24. sect. 24. F. Corone, 6. (t) Trials per 3 Inst. 221. Fleta, b. 1. c. 34. s. 32. Bracton, b. 3. c. 21. s. 5. (u) Sup. c. 23. s. 140. and c. 35. s. 6. F. Cor. 98. Fleta, b. 1. c. 34. s. 32. (1) 3 Inst. 221. Co. Litt. 6. (y) F. Corone, 98. (z) Finch, 421, 422. 9 Coke, 31. Plowden, 355. c. 2. sect. 19. 120. Fleta, b. 1. c. 34, sect. 25. S. P. C. 180. (b) Britton, 40. (c) Keilway, 120. s. 25. (d) S. P. 1. c. 34. s. 25. Pais, c. 2. s. 19. 3 Inst. 158, 159. (i) Finch, 423. S. P. C. 152. Plowden, 335. Fleta, b. 1. c. 34. s. 25. (k) S. P. C. 180. F. Cor. 125.187. (1) Finch, 422, 423. S. P. C. 179. F. Corone, 100. 125. 144. 157. Sect. 4. In appeals each party must fight in proper (2) person, and not by champions. And therefore if the appellant be under an apparent disability of fighting, as being a (a) woman, or in (b) holy orders, or under (c) age, or of the age of (d) sixty, (e) or mained, or (f) blind, he may counterplead the wager of battle, and compel the appellee to put himself upon his country. (g) Also if an appellant become blind by the act of God after he has waged battle, the court will discharge him of the battle; and in such case it is (h) said, that the appellee shall go free. Finch. 423. F. Droit, 3. S. P. C. 60. 180. 22 Ed. 4. 20. Fleta, b. 1. c. 34. C. 60. 180. F. Corone, 385. 22 Ed. 4. 20. Trials per Pais, c. 2. s. 19. Fleta, b. (e) Finch, 423. F. Corone, 230. 268. S. P. C. 180. 22 Edw. 4. 20. Trials per Fleta, b. 1. c. 34. s. 25. (f) F. Droit, 57. 3 Inst. 158, 159. (h) 3 Inst. 158, 159. (g) F. Droit, 57. Sect. 5. Also if a (i) peer of the realm, and much more if the king bring an appeal, the defendant shall not be admitted to wage battle, by reason of the dignity of the persons. Sect. 6. Also the citizens of London have a special (k) privilege by charter, that in appeals brought by any of them, there shall be no wager of battle. Sect. 7. Also any plaintiff may counterplead a wager of battle, by alleging such matters against the defendant as induce a violent presumption of guilt; as in an appeal of robbery, by shewing (1) that the defendant was taken with the manner, &c.; and in an 230. 268. 375. appeal of death, that he was found lying upon the deceased (m) with a bloody knife in his hand; and in any appeal, by shewing 4 Assize, 1. 22 Ed. 4. 19. B. Battle, 5, 7. that B. App. 114. 20 H. 7. 8. pl. 18. Vide sup. c. 15. s. 41. (m) Finch, 422. S. P. C. 179. F. Cor. 411. 1 Assize, 3.6. that the defendant being under an arrest for the crime charged against him, (n) brake the prison, or (o) escaped, unless such (n) Finch, 422. breaking or escape be (p) pardoned. For the law will (q) not S. P. C. 180. oblige a plaintiff to make good his accusation in so extraordinary Hobart, 82. a manner, when in all appearance he may prove it in the ordinary F. Corone, 154. way. It is also a good counterplea of battle, that the defendant 157. 164. 251. hath been (r) indicted for the same fact, unless the indictment (0) Finch, 422. were insufficient. 281. Hobart, 82. B. Battle, 7. 11. B. Battle, 3. F. Corone, 164. 251. (p) S. P. C. 100. Hobart, 82. F. Corone, 154.281. B. Bat. 3. 1 Assize, 3. (q) Trials per Pais, c. 2. s. 19. (r) Finch, 422. 22 Edw. 4. 19. Appeal, 114. 20 Edw. 4. 6. Rastal, 50. Sect. 8. It is enacted by 6 Rich. 2. that the defendant shall not be received to wage battle in an appeal of rape. CHAP. XLVI. OF EVIDENCE. As to the nature of evidence, so far as it more particularly concerns criminal cases, I shall consider the following points: 1. In what cases the evidence must be given in the presence of the prisoner. 2. How many witnesses are required in criminal cases. S. In what cases the deposition of witnesses out of court may be allowed as evidence. 4. In what cases the confession of the defendant may be given in evidence. 5. Of parol evidence; and how far hearsay shall be admitted. 6. Of written evidence; and whether similitude of hands shall be admitted. 7. How far it is necessary for the evidence to be the best that the thing will admit of. 8. Whether husband and wife may be witnesses for or against one another. 9. Whether a judge or juror may be a witness. 10. Whether a counsel or attorney may be a witness. 11. How far an accomplice may be a witness. 12. Whether a person attainted or convicted shall be a wit ness. 13. How |