CRIMINAL JURIS PRUDENCE

Evening Star, Issue 11511, 30 March 1901, Page 2

CRIMINAL JURIS PRUDENCE

. ■ ... [By 'doNlWS.];-ri m/• ’ shaUr give shall be-iho ; | biitthe'.'tfue: truth, i -so help your God.# v” The evidence yomshalLi ! give shril-be-the ,irith',Tthe whole troth,-and., nothing bnt tha'trhth; i sorjielp :yonrJ God;”J iThe.dormer K<;the.-Italiaii, the Tatter; the, ‘ English -form .o£<oath .administered ■ m-tbe’. courts of juSticd. Wresting trom the Crown-’ “•fain ’ play ” in,: administering then criminal, lawi has, been £ hb easy -task) from time imine-, meriaL There wns,a. l time i .when rm-judiciiii judgment .-could he giyen, contrary to. canomcad propaganda, . abd it is,;yety amuring; if i not instructive,, to read the .quaint petitions . toßome ini.tbe fourteenth ; for in-, stance, imthematter ofq personal u dtaiion, ; ' the, King. in.order,to,;put,p/riop, .to, such scandals, -prays the .Pope to, ; ,order ibat, be- : fore! a : citation, ;te'! issued, Jhe matter shal 1 bo referred to, a commhjsicai <d;^rdmals,,ajid' • “ inquiry rnado.of approved [arid, compeijen t Englijdixmm,':. on wE^,t^stai^^(.thd',mal-’ ,'ricthl in. prefer.; to' .elicat-facij? and fnith, ; )j;y qom- ; ,patent add-impartial’ m^h ! i^ iC ,i'tf hbi;by. appqintihg a. Publlc Beferwler, wifch' jKdice to assist in' securing eiddenoe for ;ti§ dsfeiicn, - .at least having an accused’s’ witnesses bound over to appear alt the trial in the same , manner and -with the same;,payiatnt as'' the witnesses for Qs© : Crown. . Wresting from the Crown and,clefgy the right of others, other'thah''tbqre v taldng Iholjr'qrdbri,' to; hold jndicM offices, : ih’d perform : fbe fdnrfiohs of pleadari at the Bar. On' behalf oferitni- . uals, qr anyone .was a slow.and laborious process .of . centuries., The clergy, had enormous powers, and,,V‘fleetng to sanctuary,” , protected the, • murderer and, malefactor.” •-. ’a-/ -r- ■ Trial ,by battel was another aqd often favorite method ,of , trial; All were hot capable either of offering or, or accepting , battle, but liberty, was giyen thqin in, trial of ..the cause ,to epose a champion [.and that the latter’ might baye a stronger- interest in defending. the party ini whose behalf (he appeared, his hand was cut off if.he, lost .the battel. • Banns were publifhed, as we publish wddding'oheS. This battel was in such favor, that it bad to be restricted by law to the four following cases :—First,, that the crime- should be/capital; secondly, - ; that, it •should be certain the crimeT»d-been perpetrated ; thirdly, that the accused must, by Common ■■ fame,- be supposed guilty and fourtUy, rthat'tbe matter was not .canable of proof by witxress! The last case in "England was that of an alleged murderer. Having pleaded *• .Not guilty; -and lam ready to defmid ihe same hy my body,”- he.-was furnished with a. pair. gloves, .one of ,which being put on, the other was throryn down, and ..duly taken .'into the custody of the Court. That was in 1818., \ The defence ..was allowed by the Judges; the prisoner, was discharged \ - and .the ordeal, by battel I was abolished by on Act of Parlianient. | This most atrocious case is ’ reported, by i BiumweU. -and Aiderson, vol! L, Adiford > i against Thornton ; . Popes, even £ did not f condemn trial by battel, as we rehd qf the ’ Bishop of Salisbury aid the Earl of .Sails- ! bury- contefTting 'in EdwaM. ni.’s time j on,, account of .the 'right ! of' the' CasfJe ;of Sarum. Elizabeth, jillbwed ,j ! it, an d there ; is : a case reported’in; 1571 where the justices of the Common ’ Pleas, the counsel and Lawyers, in all forin, 1 went down to Tothill Fields to bh‘ umpires of the. contest, Thornton’s, however, was j the Last. ; ■' !: ' /’ r . I

Criminal jurisprudence at the end of the seventeenth and the beginning of the eighteenth century is both qua.int and interesting, particularly the Courts • presided over by Scruggs and Jeffreys. - They ‘were, in fact, part.Kaxis of monarchs, with a firm belief in the divine right .of Kings.;, ' As Charles said at Edgehill, his. royal authority . was “ derived from God, whose substitute rand-supreme governor under Ohrist Lam,” and then gave fire order to descend the-hill. As we now understand ■the law of evidence; in those days there was none; indeed, the : Judges seemed to browbeat soundly all round, arid seldom was evidence for an aocuscd person allowed; but never, ,on" sworn testimony, . Perjury was rampant,, as witness the Gatesian, trials presided oyer by Jeffreys, whose judicial jrtterances were frequently scandalous, and sometimes indecent; as for instance : “-Anti since they have a mind, to it this cold weather, Jet thbm’bc well heated.' r 'i Your-sentence; is that jou'hre takeh'to the place from-whence you came', and from, thence be dragged, tied to a.cart’s tail, {firongh the streets; 1 your bodies - being stripped from the . girdle; upwards, and be whipped till your' bodies ■bleed.” -Thus to two women, guilty of petty larceny; A criminal trial in those days,, from pickpockets to shoplifters and the highest known-treason," was' not- .unlike . a T race between the King and the prisoner! : in which the' King had a long start and f he ■ prisoner was, A legal authority thus'writes of these!,days,i; “Not sq|imtcli that. Judges, were corrupt and timid, or, that juries were liable to party spirit in political cases, as that they, gave great' reason -to fear that the principles of evidence.: were then so ill understood - and the- whole method : of criminal procedurewas' so imperfect and superficial-’that an amount' of 'injustice frightful to think, 6f. must have been indicted at the, assizes and sessions on obscure'persons of wliom no 'ono ever heard or. will -hear. A perjurer in those days was, in the position of -a person; aimed, with a deadly poison, which be could administer with no .considerable ’ chance of ffrey’- treatment of a Grand Jury’who once threw out a bill, they* 'failing to’/koe how a pamphlet publication could rationally bo construed into an intent to disturb the King's peace, was certainly .unique,!. “God bless: mo from- .such jurymen,” he exclaimed. “ I will see tho 'face of every Otoe of them,” 'and "let " others see

exploiting ptherp possiblsmcontempt!!’ lhOoßari;w:afiichared ) T:hUd 1 I i reluctent j i'gimfctemafi: epaSsedo bel [ore I But(eyentihe fiUtce.glftnCU 1 of tbUtjgrte'fc usp iaflod te. shake ,theif< cph- s yiUtion,>:.'“lgnpranuts,!q S; after.the. Other, until, with rage/ the:;assunmco that God to ; pardon. their, perjurj% i jeffroys was; Uf this time ; Eccorder,-i and, -the jury, nnt-mn-naterafiy indignant;; tico sScroggs and asked- ; permission to the, t [Recorder; ■ indictedwhichu was.- delayed and .subsequently,;■ towing -. to points! orf ;.qrimiriftl f tM'reer', of this remarkablo.man whlph ono must admire eyqh. .with-, great ■; adraii'afcipn.; Addressing. LordwHowmid;: “4dy lard,!’ Justice, ;“ do yon- cvUrytMngrth a.. man ;spraiks atrlihe Ifa-r fpr -Ms ’ client r arid hi.Sjfea .is therefore; to-be.b.elioyßd because, he said it?js)|jb the.,-jury aJe. hero for-.cyidenco toguidejthem of : whq.tithe counsel; say, l but what. is approved ’’--an exopinion: that , will .commend, itself vf;arnfiy;,tp,,tho litiganteMpf' all ,;ages. .ijAir questions-, having u ,the; slightest, trend- to; aS-’, perse.tliOr Governmont .were at once .mipprcsSed, and counsel denounced -.as , heated ind hectoring.-;- i . Whipping,-;seems tP, have ,been ; a .favorite'' puhishnieht-hi- ITIK!’, 'as & lifetldbook' on the 1 duties of justices-discloses. Here are a fewjanpps from its pages-:-,"Rpguef” and-“in-.’f: haying been - conveyed- firstr to hb presence of a-raagistrate, ; “ may bd .puiiished by-,being. wldp’d till bloody/’ ote. Rogues are catalogued as .fblipws-!-^-'- < Batenb; gatherers, l :or collector« for : , prisons dr ;aols,;,wandering jor- that purpose, fencers, ■ tear-wards, common players of interlndesj, nitistrels,. jugglers: (teipugh -nof yvandering),' ppsies or Egyptmns.for wpndermg-iuitheir lalnt. hr ;looit) r. .pretenders; tp iifiysipgnpmy te palmistry or like crafty science^-or, fornine. telling or like-, phantastical' imaginadonS, i users of-any subtle craft -for unlawful james ,or;plays. .:. .7 . Games not:lawrul were idice,: Whies, cards,., bowls,, coits, ;atcs, ; 10gats; shore grout (no doubt our modern chuck farthing) .-p tennis, :■ casting 7 the stone, ,and football ■ " All afe indudfed nnief one common,; barff and all-liable 7 to. the aenalty-.of-six shillings-; and cightpence a :iina r !i If. ah.;artificer or>an.apprentice.(except at Ghristmas. tilne, when the -rigor; of awrwas;slackened): the fine was twenty itiiilipgs. ; The extareme '-rigor < forarefuting ; te. work 7 forther/statuteiwagte- (for r.they* had; he minimum wage fixed -ras far backr ah Elizabeth)"ix set out, alßb theflist-of trades, which >fis very-interesting; embracing as: it ides everything;, from fletehere' and butchers ,b; cooks r and curriers. > Then there was tenalty of three shilhdgs 7 and "fourpence for hd poor,’ or in deftiilt td dit in the Stocks or three hours,” for not observing of Sunlay. Tire little volume if l quAintness perachided. ■ 1 1’rbfessor 'Di-uinmond tells us the hitree"of evolution is mental,’Und not ma»ridl. ' Where- do wc find this exemplified fidte than 7 iu_ criminal pfoceduvc. Grand' juries; and their;powers have 7 been' much 7 in mdente of late; but. few Understand' these rncierit • Bulwarks-' for administering‘ jtritico md protecting all classes of His. Majesty's ' |ubi«te; -V r approach the . Grand Tuiy _wifch__ar/‘ bill,*’- save only for such of- i iencos ’as are 'eruimerated' iri thd Yeiatidua I indictment Act. These must go thrdilgh the j irdinary investigation by tlio, magistracy, ft iti oxdy, 'howeycf,' in extreme caste that layantago ■is‘ taken of, method, j is .ail instance,' i-ccently iri a neighboring roldny, where ; , often committal the Crown Law Officers'refuted! to prosecute, public rpinion was so outraged that it Was, found recessaiy to empannel o' Grand Jury, and a 1 bill ” was presented in due form, biit nut hrongh the" Crown’s officers. In New Zeaiind tire .YaripUd;Crotvn Solicitors, prepare he “ bills,” -which must all go before the rarious Grand Juries;; but a private indiridiia.l has also the undoubted right of doing jo too, an.d after many, years’ study and-ex-perience one trusts that these ancient courts vill always remain witlrus.