Monday, January 9, 2017

The State Trials

Criminal trials are always interesting, but there is no country in the world in which they either excite or deserve so much interest as our own, for there is none in which they have played so conspicuous and important a part in history. It is no doubt a consequence of this that no country possesses such accurate reports of the most important of the trials which have occurred in it. The collection known as the State Trials, which fills thirty-two octavo volumes, closely printed in double columns, is one of the most extensive, far the most entertaining, nearly the most instructive, and much the most authentic historical collection that exists in the English language. It combines the liveliness of plays and novels, with the variety of a newspaper, and all the authenticity which can be attached to scrupulously accurate reports of sworn testimony and to the literal reproduction of legal documents. Should any one be unfortunate enough to be shut up alone with a law library, they would form nearly the only solace of his confinement, and many a lawyer owes to it relaxation in the intervals of study, and consolation in the intervals of business.

The collection begins from the reign of Henry I., but it becomes copious and authentic when it reaches the middle of the sixteenth century, the first report which resembles that of modern shorthand writers being that of the case of Sir Nicholas Throckmorton in 1554. Nearly the last lines of the collection set forth with grim calmness how, "On Monday, May 1st, 1820, Arthur Thistlewood, William Davidson, James Ings, John Thomas Brunt, and Richard Tidd were brought out to a platform, erected in front of the debtor's door, Newgate, where they were hanged until they were dead and their heads were severed from their bodies; his Majesty being graciously pleased to remit that part of the sentence which directed that their bodies should be divided into four quarters, and to direct that the bodies and heads should be forthwith privately buried." It is greatly to be wished that the collection could be continued to the present time. No one can doubt the legal and constitutional importance of such a publication. The object of the present article is to illustrate, by reference to the cases already published, the great general interest which would attach to it.

Few of the earlier State Trials are of much interest in themselves, though they are in many cases of great historical importance. Here and there, however, a report occurs which calls up with strange distinctness the features of a past age. The trial of Throckmorton is a good instance of this. The charge against him was that he had been concerned in Wyat's insurrection, and had sent a messenger (Winter) to him in Kent, and conspired to take the Tower of London. The management of the case was altogether unlike what we are at present accustomed to, and the report shows how much the view of criminal justice then current differed from that which prevails in the present day. There appears to have been no such distribution of parts (as it may be called) as prevails in modern trials. The counsel for the Crown did not open the case, and call their witnesses to support it, nor did the judge sum up. The form which the trial assumed was that of a constant wrangle between the prisoner and the counsel for the Crown, not altogether dissimilar either in spirit or in manner to the discussions which take place in the present day in French courts between the president and the prisoner. In the present day we avoid, almost prudishly, the practice of questioning the prisoner, even when it would be for his advantage that he should be questioned, but this is a habit of very modern date. Throckmorton was directly and emphatically called upon for an explanation of every item of the evidence brought against him. Much is to be said on the propriety of our present practice. The evidence afforded by the State Trials is certainly not in favour of it. Notwithstanding the denunciations which have been so often lavished upon the trials under the Tudors, any fair reader of Throckmorton's case must admit that in that instance, at least, the truth was fully brought to light, and that by perfectly fair means. The liveliness of the discussion between the prisoner and his questioners puts in a more forcible light than almost any other document of the time the substantial similarity of the ordinary pursuits of life at different periods. Putting aside a little quaintness in the phraseology, every incident mentioned, and every feeling expressed, might have belonged to our own time quite as well as to the sixteenth century.

Most of the trials reported in the reigns of Elizabeth and James I. belong to the general and well-known history of the country, and the same is true of most of those which occur in the time of Charles I., though two or three record scandals which certainly illustrate private life; but the subjects to which they relate are not such as could properly be referred to on the present occasion.

One singular exception occurs in the 4th of Charles I. (A.D. 1629), which deserves notice both on account of its curiosity, and also because it is nearly the first instance in which there is anything like a report of circumstantial evidence. This is the case [11 S. T. 1324. This case is reported from the MS. notes of Sergeant Maynard, who lived to extreme old age, and died about the beginning of the eighteenth century. He must have been a very young man when the trial occurred.] of the murder of Jane Norkott, for which her mother, her brother-in-law, and her sister were tried and acquitted at Hertford assizes, and were afterwards tried on an appeal of murder in the King's Bench at Westminster. The evidence against the prisoners was, that they were in the house alone with the murdered woman all night, and that no one else came in; and that the state of the body (the neck was broken and the throat cut), and other circumstances, showed that she could not have killed herself. Hence it was argued they must have killed her. In the present day such evidence would be held to establish no more than an alternative case, that is, to prove that, as in the famous instance of the Road murder, some one of several persons was guilty. What the result of the trial then was does not appear. The most singular point about it was the evidence given by two clergymen— brothers, and ministers of the parish in which the murder happened and of the one next adjoining it. Sergeant Maynard says that he heard their evidence, took it down at the time, and would be ready to swear to the accuracy of his report. The first clergyman " was a very reverend person, as I guessed, of about seventy years of age; his testimony was delivered gravely and temperately, but to the great admiration" (i.e. wonder) "of the auditory. He said: 'The body, being taken up out of the grave thirty days after the party's death, and lying on the grass, and the four defendants being present, were required each of them to touch the dead body. Okeman's wife' (the sister) 'fell upon her knees and prayed God to show tokens of her innocency. The appellant' (the woman's child) 'did touch the dead body, whereupon the brow of the dead, which before was of a livid and carrion colour, began to have a dew, or gentle sweat, arise on it, which increased by degrees till the sweat ran down in drops on the face. The brow turned to a lively and fresh colour, and the deceased opened one of her eyes and shut it again; and this opening the eye was done three several times. She likewise thrust out the ring or marriage finger three times, and pulled it in again; and the finger dropped blood from it on the grass.'" The witness added, that "he himself dipped his finger in the blood which came from the dead body to examine it, and he swore he believed it was blood." The other clergyman confirmed this account in every particular. One of the odd parts of the story is that, assuming the truth of the evidence, it is impossible to make out whether it proves that a miracle was worked in answer to Mrs. Okeman's prayer; or that the bleeding of the body showed (according to the common superstition) the presence of the murderer, and, if so, which of the three defendants it pointed at. There is something grotesque in the production of an ambiguous miracle for the purpose of clearing up ambiguous evidence.

During, and after the Civil War, the practice of reporting trials at length appears to have become much more common than it had previously been. A pretty full collection still remains of the principal trials of those remarkable times, most of which are amongst the commonplaces of our history. The case of ship-money, the impeachment of Lord Strafford, the trial of Charles I., the trials for the Popish plot, the trials for Monmouth's insurrection on the Western Circuit, and the trial of the seven Bishops, are familiar to those who have even the most popular acquaintance with English history. Their historical importance, and the strong political bias with which every reader regards them, according to his own political opinions, frequently, perhaps generally, conceal the fact that they were, for the most part, real judicial proceedings, and that those who were the principal actors in them viewed them as much in a professional as in a political spirit, if not more. On reading the full reports contained in the State Trials, this side of the matter is brought conspicuously forward, and we thus get a much better notion of the men who were concerned in these memorable acts, than is to be had from mere political histories. Men are never so much themselves as when they are actively engaged in the practice of their professions; for, of all the influences by which character is moulded, the influence, of a profession is the widest and the most searching.

The reports of the trials of the regicides throw a new and unexpected light on their personal character. Under the influence of modern picturesque writers, we look, for the most part, on the men who signed the death-warrant of Charles I. as a set of iron enthusiasts, glorying in what they did, and incapable of resorting to any defence which would admit their conduct to be criminal. This impression is confirmed as to some of them by the reports of their trials, but not as to the majority. General Harrison behaved with the most unflinching audacity, avowing and justifying all that he had done. Scroop and Carew also behaved with great courage; but Cook, who had acted as counsel against the king, resorted to every sort of quibble in his defence, and went so far as to say, "I acted as a counsellor in my Own particular for my fee; it was avaritia, but not malitia, not also, nor malitiose, nor proditorie." Hugh Peters, who had preached fanatically violent sermons against the king, equivocated, begged for mercy, and quibbled about unimportant details in a very pitiful manner. Axtell also, who commanded the guard during the trial, and, according to the direct testimony of several eye-witnesses, forced his soldiers, by beating them with his cane, to cry out for justice and afterwards for execution, denied that he had done so, and declared that he struck them to keep them quiet, saying, "I will justice, I will execution you." The differences in the behaviour of these men are evidence that it was only in a few instances that the enthusiasm of the times carried those whom it affected out of the ordinary range of character and feeling. Several of the actors in this the most memorable incident in our history seem to have taken a thoroughly commonplace view of it, and Cook in particular argued the whole subject as if he had been arguing on any ordinary point of law. The readiness with which the counsel on the other side, and the judges on the bench, struck into the same view, are highly characteristic.

It is remarkable that hardly any of the prisoners failed to show the most perfect courage at their execution, where all of them avowed and justified their conduct. No doubt the trial was a far harder test of courage than the execution, where nothing that they might say would make any difference. At a trial there is more at stake than at an execution, and there is less opportunity for acting.

Almost every one of the celebrated causes just referred to would afford matter for curious observation. It will be sufficient in this place to notice one or two. Of all the historical personages of the seventeenth century, none has acquired so permanent and horrible a reputation as Jeffreys, and there is no character on which the State Trials throw more light. To most persons he is a mere monster, stained with every possible form of infamy, and actuated in all his conduct by none but the most wretched personal motives. The reports of his proceedings contained in the State Trials do not materially alter this view of his character. Probably he was, upon the whole, the worst man whose actions form part of the history of England; but, bad as he was, he was a man, and not a mere monster. With the exception of a certain indecency of language and demeanour, which were collateral to his chief offences, he did little more than any thoroughly unscrupulous lawyer might do in the present day; indeed, any one who has had the honour of knowing the sort of barrister who is regarded by the respectable part of his profession as a black sheep, and is known to the public as a brazen-faced bully, whose trade it is to badger witnesses, to insult judges, and to bluster and rant before juries, will have no sort of difficulty in forming a clear conception of Judge Jeffreys. In the worst scenes he always conducted himself with plausibility, and had more or less of an excuse for what he said and did.

The famous case of Lady Lisle, known to every reader of Lord Macaulay's History, supplies a good illustration of this. She was tried for harbouring rebels after the battle of Sedgemoor. and the main question was, whether she knew the persons whom she entertained to be rebels. The only witness upon this point was one Dunne, who had guided the persons in question to her house. He was of course a most unwilling witness, and the counsel for the Crown asked the judge "to examine him a little the more strictly." The scene which followed is well known. Lord Macaulay's genius has made all his innumerable readers familiar with the furious execrations of Jeffreys, the terror of Dunne, the reluctance of the jury to convict^ and the violence by which they were forced to do so.

There is, however, another side of the question, which is not so well known. It was not merely by cursing, swearing, and ranting that Jeffreys obtained his object. According to the practice of the times, it was beyond all doubt his duty to examine Dunne, and no one accustomed to the examination of witnesses can read the report of Dunne's evidence without seeing, that apart from the swearing and raging, the examination of Dunne was most skilful, and extorted the truth from him notwithstanding a long series of prevarications and falsehoods. It is quite true that Jeffreys behaved, at times, like a wild beast, but it is also true that Dunne was a most artful liar, and that he gave the greatest possible provocation. In order to screen the prisoner he wilfully suppressed the very evidence which he was called to give, and Jeffreys screwed the truth out of him, with infinite brutality no doubt, but still with consummate ability.

In our own times, if such work had to be done at all, it would be done, not by the judge, but by the counsel; nor would the jury be asked to convict upon the unconfirmed evidence of a man who was obviously perjured; but the whole course of proceeding in the seventeenth century was different, and if Jeffreys had done in a dignified way what he did with frantic declamations and profane oaths, he would have done his duty and done it well. [e.g.—"I hope, gentlemen of the jury, yon take notice of the strange and horrible carriage of this fellow, and also that you cannot but observe the spirit of that sort of people" (viz. the Presbyterians), "what a villanous and devilish one it is." "Jesus God, was ever such a fellow in the world as thou art!" "Good God! was there ever such an impudent rascal!" Nothing can excuse this; but Dunne certainly did lie, and concealed the truth most obstinately.—10 S. T., 845-6.]

There are one or two instances in the State Trials in which Jeffreys appears to have behaved harmlessly, and even creditably. When Recorder of London, he tried a man named Giles, for an attempt to murder, reasonably enough. [7 S. T., 1130.]

The name of Jeffreys suggests, by way of contrast, that of Lord Hale. Considering the immense reputation which he acquired, it is strange that the State Trials should contain so few memorials of him as they do. There are only two reports of trials in which he presided. Each of them is remarkable in its way. The first is the case of the Suffolk witches, who were tried at Bury St. Edmunds, in 1665. The case is not well reported; but the report, such as it is, does little credit to Lord Hale, even when regard is had to the opinions prevalent in his time. Two women were accused of bewitching, at Lowestoft, certain children who used to have fits, in which they declared that they saw the alleged witches, and that they were tormenting them. The reporter says upon this: "Mr. Sergeant Keeling seemed much unsatisfied with it, and thought it not sufficient to convict the prisoners; for admitting the children were in truth bewitched, yet, said he, it can never be applied to the prisoners upon the imagination only of the parties afflicted; for if that might be allowed, no person whatsoever can be in safety, for perhaps they might' fancy another person who might altogether be innocent in such matters." This view of the case seems to have been far too reasonable for Lord Hale, though he had further grounds for caution. "Lord Cornwallis, Sir Edmund Bacon, Mr. Sergeant Keeling, and some other gentlemen there in court" were desired by the judge to try by experiment whether the children really could tell, when their eyes were blinded, whether the witches touched them. They returned from their experiments, openly protesting that "they did believe the whole transaction of this business was a mere imposture." The judge, however, had the timidity to abstain from summing up. "In giving his direction to the jury, he told them that he would not repeat the evidence unto them, lest by so doing he should wrong the evidence on the one side or on the other." The women were convicted and hanged. Chief Justice North's conduct, on a similar occasion, as related by his brother, favourably contrasts with this. Without offending the prejudices of the jury, or appearing to discredit the notion of .witchcraft in general, he dwelt upon the improbabilities of the particular story in such a way as to procure the acquittal of the prisoner; but a shade of pedantry and superstition mixed with Lord Hale's eminent qualities, and inclined him to take a certain degree of pleasure in treating an accusation of witchcraft with the same respect as he would have shown for any other accusation.

The only other case in which Lord Hale's name appears in the State Trials is that of a man named Hawkins [6 S.T., 921-952] —a clergyman who was tried for theft at Aylesbury. The case is interesting, because it is a good specimen of the manner in which, in those days, criminal justice was administered in ordinary cases. Celebrated trials, which are of great historical importance, throw far less light upon the common course of things than those which are of a common everyday character. In Hawkins's case the evidence was exactly such as might be heard in the present day in any assize court, and brings before the mind, with strange distinctness, a variety of petty incidents in everyday life two hundred years ago. The person accused succeeded in establishing his innocence beyond a doubt, and showing that he had been made the victim of a gross conspiracy. The judge does not appear to have done much to help him towards this, though the prosecutor's evidence contained several gross improbabilities, which, in our own days, would have speedily been made to destroy his credit.

The trials subsequent to the Revolution of 1688 are numerous and exceedingly interesting. Many of them are well known on account of the constitutional principles which were debated in them; as, for example, the series of trials for libel which ended in the Act of Parliament by virtue of which the jury, and not the judge, decide whether or not a writing is to be treated as a libel; the cases which decided the illegality of general warrants; the trial of Hardy and others for high treason, and the numerous prosecutions for seditious words and libels on the Government, which were occasioned by the alarm excited by the French revolution. It is a curious proof of the rate at which we live, that such prosecutions as these should have become so completely obsolete. They were carried to strange lengths. Perhaps the most absurd of the whole number was the prosecution of Mr. Reeves, [26 S.T., 529] the author of a well-known history of English Law— for a high Tory pamphlet, in which he asserted that, "with the exception of the advice and consent of the two Houses of Parliament, and the interposition of juries, the Government, and the administration of it, may be said to rest wholly and solely on the king and those appointed by him." This, and other matter of the same kind, was called a libel on the Constitution, and was prosecuted in pursuance of a resolution of the House of Commons. Mr. Reeves was, however, acquitted, though the jury described his pamphlet in their verdict as "a very improper publication." It required great discretion in those days to discuss public affairs at all; for whilst Mr. Reeves narrowly escaped punishment for saying a little too much in favour of the prerogative of the Crown, an unlucky preacher, named Winterbotham, [22 S.T., 823] was fined £100, and imprisoned for two years, for saying, "I highly approve of the revolution in France, and I do not doubt but that it has opened the eyes of the people of England;" for speaking of the "oppressive laws and taxes," and denying that the sinking fund reduced the national debt, and some other expressions of the same sort.

Besides political trials, a great number of cases occurred in the course of the last century which excited the greatest possible attention, and which, preserve many strikingly vivid pictures of habits which have now become obsolete. The career of Lord Mohun is a striking instance of this. He would appear to have been one of the most reckless and violent of the Mohawks, whose doings are described in the Spectator. He was twice tried for murder by the House of Lords: in 1692 [12 S.T., 949] for the murder of an actor named Mountford, and in 1699 [13 S.T., 1033] for the murder of a Mr. Corte. In the first case he agreed to assist his friend Captain Hill in carrying off, by force, the celebrated actress, Mrs. Bracegirdle. In this they were prevented, and Hill, who suspected Mountford of being her lover, waited for him with his companion, Lord Mohun, in the open street, with their swords drawn, for nearly two hours. When he arrived, Hill ran him through the body, Mohun standing by. It was not clearly proved that Mohun intended to assist Hill in anything further than in the abduction, and there was contradictory evidence about the details of the fray. He was accordingly acquitted by a considerable majority. The other case, which happened in 1699, arose out of a quarrel at a tavern, ending in a strange midnight duel, in which, besides Lord Mohun, Lord Warwick (Addison's stepson), and four other persons, were engaged. There was no clear evidence ia this case as to the way in which the act was done, and for the second time Mohun was acquitted. Some years afterwards, he was killed in a duel by the Duke of Hamilton, who also lost his life on the occasion, being stabbed, it was said treacherously, after the fight was over. There is always something strange in reading the minute details of incidents long since past; and those who are familiar with our own courts will have these old scenes vividly called before them by a thousand little touches. For example, it is very odd to find that one hundred and seventy years ago there was just the same difficulty in making witnesses speak out as there is now. In Lord Mohun's first trial, the Lord High Steward said, "I do not hear one word. That boy can speak out if he pleases. I warrant him he could make noise enough if he was in another place. Speak out, that my Lords may all hear you." There is a sort of melancholy satisfaction in the reflection that for six generations at least judges have been telling witnesses to speak out, in precisely the same words.

The lawless habits of all classes are impartially set forth in the pages of the State Trials. A century ago the smugglers of the south coast were quite as fierce and as little subject to the law as Lord Mohun and his associates had been half a century before. A strange illustration of the desperate acts of vengeance which they executed op revenue officers [18 S.T., 1069] who ventured to interfere with them may be seen in the trials of a gang of them under a special commission at Chichester, in 1749, for the murder of Galley and Chater, two Custom-house officers. The unhappy men were taken prisoners in a lonely public-house on the Sussex downs, and were tied on to a horse, which was led by the smugglers for many miles along the coast. They were mercilessly flogged with cart whips the whole way. One of them died on the spot, and the other, after being chained up for some days in a hovel, was put to death by being hanged over a well. Six persons were executed for this crime. Such offences hardly seem to belong to our own country, but instances of still greater barbarism occur in later times. One of the last volumes of the collection contains the reports of the trials of the Caravats and Shanavests, two parties who appear to have carried on a sort of private war by means of reciprocal murders and robberies in the counties of Tipperary, Waterford, and Kilkenny, in 1810. [31 S.T., 413, &c.]

The darker incidents of the State Trials are; sometimes relieved by eases which excited intense interest, though they did not involve crimes of the same atrocity as those mentioned above. One of the most remarkable of these is the extraordinary case of Annesley v. Anglesea, which was an action of ejectment brought by a young man of thirty against his uncle, who claimed the title and enjoyed the estates of his deceased brother, Lord Altham. The claimant's case was that he was the true heir, being the legitimate son of the last Lord Altham. He had, according to his account, been brought up away from his home and grossly neglected, on account of quarrels between his father and mother. When his father died his uncle, who professed to consider him as the illegitimate son of his father's mistress, contrived to get him kidnapped and sent to America, where he was sold as a slave. He went through a variety of romantic adventures, and at last, after many years, got back to England, intending to assert his rights. In England he had the misfortune to kill a man, accidentally, near Staines, upon which his uncle, who had heard of his arrival, spent large sums in prosecuting him for murder, and used every means in his power to get him convicted and executed. He was, however, acquitted, went over to Ireland, and after a trial which lasted for several days, and excited the greatest attention, succeeded in establishing his rights. Probably no real incident ever resembled fiction more closely, and the poetical justice of the story was complete, for one of the most cogent parts of the evidence against the wicked uncle was the zeal which he had shown in the prosecution of his nephew. This is one of the standard illustrations of the maxim, "Omnia praesumuntur contra spoliatorem." The construction most unfavourable to himself is to be put on the acts of a wrong-doer. [See Annesley v. Anglesea, 17 S.T., 1139; and R. v. Annesley and Redding, 17 S.T., 1093]

A case which may be classed with this on account of the interest which it excited by its mere curiosity, was that of Betsy Canning. [19 S.T., 283] She was a girl of about twenty, who disappeared one day from her home, and was missing for a considerable time. After about a month she returned, asserting that she had been carried off by certain gipsies, and imprisoned in a house at Enfield Wash, whence she had at last contrived to make her escape and return home. One of the persons whom she mentioned was arrested, tried for stealing her clothes—which was then a capital offence— and sentenced to be hung. Great doubts, however, being entertained as to Canning's story, she was indicted for perjury; a number of witnesses were called, who traced the gipsies' movements from Abbotsbury to Dorsetshire at the time when, according to Canning, they were kidnapping her in the neighbourhood of London. She was convicted and sentenced to transportation. The case excited incredible interest, and produced parties of Canningites and anti-Canningites, who denied or asserted her innocence. It is interesting in the present day, as it gives a sort of Dutch picture of many scenes in common life a century ago — the witnesses called to prove the innocence of the gipsies having had occasion to describe all the little incidents by which they recollected the fact that they passed through particular places, such as a dance at a public-house, lending a horse to cross a flooded river, &c.

One of the most interesting pieces of knowledge to be derived from the State Trials is a knowledge of the different manners in which trials were conducted at different periods of our history. The mode of trying prisoners with which we are familiar in the present day is the result of a vast quantity of experience, and is in reality a most refined and elaborate process, though it may not at first sight appear to be so. In the earliest cases which are fully reported, the general character of the proceedings appears to have been by no means unlike the present French system. The prisoner was questioned by the court upon every item of the evidence as it was produced, and had to make a distinct defence to every part of it. Throckmorton's case, as already observed, is a perfect illustration of this; so also is the case of a man named Udale, who was tried in the reign of Queen Elizabeth for being the author of the books of Martin Marprelate. At a later period, the practice of direct interrogation of the prisoner became less common, though it still continued. There are constant instances of the practice all through the seventeenth century; for example, in the trials of Twin, [6 S.T., 515] for printing treasonable books, in 1663; of Colonel Turner, [6 S.T., 560] for burglary; of Count Coningsmark, [9 S.T.] for the murder of Mr. Thynne; and of Harrison, [12 S.T., 833] for the murder of Dr. Clench; and throughout all this time the judges took a much more conspicuous and personal part in the proceedings than would be considered proper at present, though it is remarkable that the summing up appears to have been less important and to have been more nearly confined to a mere repetition of the evidence than is now the case. The rules of evidence were exceedingly loose; not only was hearsay evidence admitted to almost any extent, but evidence of the previous bad character of the prisoner was put in to prejudice the jury against him. For example, in the case of Hawkins, the clergyman tried before Lord Hale, evidence was given to show that he had committed other thefts besides the one for which he was on trial.

The informality of the proceedings was, no doubt, due, in a considerable degree, to the rigour with which persons accused were denied the benefit of counsel: unless they could manage to raise a point of law which the court thought it worth while to have argued, they were deprived of all legal assistance. This rule was first relaxed in the case of high treason, in which, by an Act passed in the reign of William IIL, persons accused were allowed to make their defence by counsel. Afterwards a practice was introduced—it does not appear how or when—of allowing prisoners to have counsel for the purpose of examining their witnesses and cross-examining the witnesses for the Crown. It is one of the most curious circumstances in the history of English legal proceedings, that there is nothing to show how that change came about, or by what authority it was introduced. Up to a certain period, the practice was rigorously prohibited. Even in the extreme case of all, the case where the defence was insanity, the prisoner was obliged to examine his own witnesses in order to prove his own madness. This course was taken in the case of Arnold, who shot at Lord Onslow, and in that of Lord Ferrers. Suddenly, however, without any particular reason, the practice changed. In the second half of the eighteenth century the witnesses for the Crown were always examined by the prisoner's counsel. Early instances of this are the trials of Barnard, in 1758, for sending a threatening letter to the Duke of Marlborough; [19 S.T., 815] and of Mary Blandy, for the murder of her father, at Oxford, in 1752. [18 S.T., 1117]  Both of these cases preceded the trial of Lord Ferrers, which occurred in 1760.

When this practice was established, the counsel for the defence used it as a means of evading the rule which prevented them from addressing the jury. They would throw observations intended for the jury into the form of questions to the witnesses. Thus in Barnard's case the following question was asked:—"Q. It has been said, he went away with a smile. Pray, my lord duke, might not that smile express the consciousness of innocence as well as anything else? A. I leave that to the Great Judge." This practice continued till our own times, and was the cause of much useless waste of time and of irritating discussions between the bench and the bar. It was not till the year 1836 that counsel were allowed to address the jury for the prisoner in cases of felony. They used, however, sometimes to write defences which were read by their clients, or by the officers of the court for them. Whilst the mouths of the counsel for the prisoner were shut, a great deal of unnecessary speaking was allowed on the other side. It seems at one time to have been usual for each of the counsel for the Crown to make a speech, and an extraordinary number of them were employed. In Miss Blandy's trial there were five counsel for the Crown and three for the prisoner. Two out of the five made speeches, before the witnesses were called, in a style which is quite unknown at present. "Who ever beheld the ghastly corpse of the murdered innocent weltering in its blood, and did not feel his own blood run slow and cold through all his veins?" asked Mr. Bathurst. Sergeant Hayward was even more flowery. "Innocence, celestial virgin, always has her guard about her; she dares look the frowns, the resentments, and the persecutions of the world in the face; is able to stand the test of the strictest inquiry" &c.

The examination of witnesses, which is now conducted with the greatest care, and forms an art in itself, is also modern. It is a very difficult matter to get a man's story out of him, clearly and consecutively, without asking questions which suggest the answers, and without going into matters which the various rules of evidence exclude. In former times no attempt was made to do so. The witness told his own story. The only question put to him was—"Give an account to my lord and the jury of what you know of the matter," and thereupon he was allowed to say what he had to say in his own way, and with all sorts of collateral remarks which in the present day would be excluded. It was in the latter part of the last century that the change was made. The present practice is peculiar to this country, and is the best of all illustrations of the excessive closeness of the logic which is characteristic of almost all our judicial proceedings.

One remarkable difference between ancient and modern trials is the extreme length and elaboration which they have reached in our days. It is a matter of everyday occurrence at present for a trial of any importance to last for more than a day. In some cases they have lasted for much more. Palmer's trial occupied twelve days, and Smethurst's four or five. This is altogether a novelty. In the trial of Hardy, for treason, in 1794, after the court had sat from eight A.M. till past midnight, there was a solemn debate, whether or not they could legally adjourn till the following morning, and it was said that, except in the case of Betsy Canning (which was a trial for misdemeanor), such a thing had never been done. The court, however, took the responsibility; but to show their sense of the solemnity of such a measure, they sat for sixteen hours' a day for upwards of a week. How the jury, the judges, or the counsel managed, under such circumstances, to understand or remember what passed, is a wonder—perhaps they forgot most of it; and as the better part of the evidence was mere rubbish, it did not much matter if they did. The feats of strength recorded in the State Trials are wonderful in their way. At Despard's trial, for high treason, Lord Ellenborough sat for twenty hours: but the most extraordinary performance recorded in the whole collection was that of an unhappy Scotch jury, who appear to have sat for forty-nine hours, and to have been then locked up over the Sunday to consider their verdict. This happened in the case of James Stewart, who was tried at Inverary in 1752, for the murder of Colin Campbell, of Glenure. This case was a very memorable and most scandalous one. The judge who presided was the Duke of Argyll, Lord Justice General, whose office in general was purely titular, and who exercised it in this instance because he was the head of the clan to which the murdered man belonged; and of the fifteen jurymen no less than eleven were Campbells. [19 S.T., 1]

One great cause of the length of modern trials, and of the shortness of modern sittings, which seldom last much above nine hours at a time, is the extreme care with which circumstances are sifted. A modern trial, if the facts are complicated, is like a piece of cabinet-work. All the different little facts are carefully put together in their proper places, and proved by the appropriate evidence ; and if scientific questions arise (as often happens), a law-court becomes a sort of lecture-room. This system, no doubt, has its inconveniences, but it affords, on the whole, the most perfect system of administering justice which has yet been devised in any part of the world.

Cornhill Magazine, September 1862.

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