« PreviousContinue »
their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of the cause. All others are competent witnesses ; though the jury from other circumstances will judge of their credibility. Infamous persons are such as may be challenged as jurors propter delictum; and, therefore, shall be admitted to give evidence to inform that jury, with whom they were too scandalous to associate. Interested witnesses may be examined upon a voir dire, if suspected to be secretly concerned in the event, or their interest may be proved in court. Which last is the only method of supporting an objection to the former class ; for no man is to be examined to prove his own infamy. And no counsel, attorney, or other person entrusted with the secrets of the cause by the party himself, shall be compelled, or perhaps allowed, to give evidence of such conversation, or matters of privacy, as came to his knowledge by virtue of such trust and confidence, but he may be examined as to mere matters of fact, as the execution of a deed or the like, which might have come to his knowledge without being entrusted in the cause.
The oath administered to the witness is not only that which he deposes shall be true, but that he shall also depose the whole truth ; so that he is not to conceal any part of what he knows, whether interrogated particularly as to the point or not. And all this evidence is to be given in open court, in the presence of the parties, their attornies, the counsel, and all bystanders, and before the judge and jury ; each party having liberty to except to its competency, which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country ; which must curb any secret bias or partiality that might arise in his own breast. And if, either in his directions or decisions, he mis-states the law by ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of exceptions, stating the point wherein he is supposed to err ; and this he is obliged to seal by statute Westm. 2. 13, Edw. I. c. 31, or if he refuses to do so, the party may have a compulsatory writ against hiin, commanding him to seal it, if the fact alleged be truly stated : and if he returns that the fact is untruly stated, when the case is otherwise, an action will lie against bim for making a false return.
This bill of exceptions is in the nature of an appeal ; examinable, not in the court out of which the record issues, for the trial at nisi prius, but in the next immediate superior court upon a writ of error, after judgment given in the court below. But a demurrer to evidence shall be determined by the court, out of which the record is sent. This happens where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law; in which case the adverse party may if he pleases demur to the whole evidence ; which admits the truth of every fact that has been alleged, but denies the sufficiency of all of them in point of law, to maintain or overthrow the issue which draws the question of law from the
cognizance of the jury, to be decided by the court. But neither these de-
When the evidence is gone through on both sides, the judge, in the pre-
The jury after the evidence is summed up, unless the case be very clear, withdraw from the bar to consider of their verdict, and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. If the jury eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is fineable ; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of the parties or their agents, after they are gone from the bar, or if they receive any fresh evidence in private, or if to prevent disputes they cast lots for whom they shall find ; any of these circumstances will utterly vitiate the verdict.
A verdict (vere dictum), is either privy or public, but the only effectual
Sometimes, if there arises in the case any difficult matter of law, the
Another method of finding a species of special verdict, is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judge or the court above, on a special case, stated by the counsel on both sides with regard to a matter of law; but the jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated question of fact and law; and, without either special verdict or special case, may find a verdict absolutely either for the plaintiffor defendant.
When the jury have delivered in their verdict, and it is recorded in court, they are then discharged.*
TREASON, according to lord Coke, is derived from trahir, signifying to betray; and trahison, by contraction treason, is the betraying itself.
When treason is spoken of, it is generally understood to be high treason, unless petit-treason be specially named. Any justice of the peace may, either upon his own knowledge or the complaint of others, cause any person to be apprehended for any such offence. And such justice may take
. the examination of the person apprehended, and the information of all those who can give any material evidence against him, and put the same in writing; and also bind over such who are able to give any such evidence to the king's bench, or gaol delivery, and certify his proceedings to such court.
No justice of the peace can accept of bail for a person commited for high treason, and he is required immediately to transmit an account of a traitor's examination to the Secretary of State for the Home Department.
Lord Hales calls the statute of 25 Edward III. c. 2, which defines treason, a sacred act ; lord Coke calls it an excellent act, and both the king and parliament who made it, blessed ; which act settled and defined all treasons which before had been uncertain. It was again by 1 Mar. c. 1, reinforced and made the only standard of treason, and all other statutes between 25 Ed. III. and i Mar., which made many offences high or petittreason or misprision of treason, were abrogated; so that no offence is to be esteemed high treason, unless it be declared to be such by the statute of 25 Edward III., or made such by some statute since the 1 Mary.
The statute of 25 Edward III. above alluded to, is as follows :
" Whereas divers opinions have been before this time, in what case treason shall be laid, and in what not ; the king, at the request of the lords and commons, hath made a declaration in the manner as hereafter followeth, that is to say, when a man doth compass or imagine the death of our Jord the king, or of our lady his queen, or of their eldest son and heir, or if a man do violate the king's companion, (that is his wife,) or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir, or
• Blackstone's Commentaries.
if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere ; and, therefore, be probably attainted of open deed, by
; the people of their condition. And if a man counterfeit the king's great or privy seal, or his money, and if a man bring false money into the realm, counterfeit to the money of England, knowing the money to be false, and and if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine being in their places, doing their offices."
Lord Hale calls the statute of the 1 Mar. sess. 1. c. i., another excellent law, and which he says at one blow laid flat all the numerous treason at any time enacted since Edward III. " No act, deed, or offence, being by act of parliament made treason, by words or writing, ciphering, deeds, or otherwise whatsover, shall be adjudged to be treason, but only such as be declared by the said statute of the 25 Ed. III.”
It is the opinion of lord Coke, that bare words are not a sufficient overt act, or open deed, whereby to convict a person of treason, but that they are only misprision of treason. Lord Hale also says, that words, unless expressed in writing, are not regularly an overt act. But Mr Hawkins argues the contrary, and amongst other reasons for his opinion, he observes, that to charge a man with speaking treason, is unquestionably actionable, which could not be, if no words could amount to treason : also that in case of felony, he who by command or persuasion, induces another to commit felony, is an accessory in felony, so he who does the same in treason, is a principal traitor, (there being no accessories in treason, but all being principals,) and yet such person does not act, but by words. And, accordingly, it has been the constant practice since the Revolution of 1688, when a person by treasonable discourses has manifested a design to murder or depose the king, to convict him on such evidence.
To counterfeit the king's coin is high treason.
Before the passing of the Roman Catholic relief bill, in 1829, there were many offences regarding the usurped jurisdiction of the pope, made treason. By 5 Eliz. any person maintaining the authority of the see of Rome in this realm, incurred a præmunire for the first offence, and for the second the pains and penalties of high treason. Any person practising to absolve or withdraw subjects from their allegiance, as also the parties themselves so absolved or withdrawn, were all declared to be guilty of high treason. By the 13 Eliz. any person procuring or publishing a bull, or instrument from Rome, was guilty of high treason, and any one concealing the same was guilty of misprision of treason.
By 3 James I., persons perverting others, or being perverted to popery, were guilty of high treason. All Jesuits and popish priests coming into
the realm, unless they conformed, were guilty of high treason. These laws and many others are now repealed, and a papist incurs no penalty in the exercise of his religion.
In high treason there are no accessories, all are principals; and, therefore, whatever act or consent will make a man accessory to a felony before the fact, will make him a principal in a case of high treason.
By the 31 Char. II. persons committed for high treason shall be indicted the next term, or next assize, otherwise they shall be held to bail, unless it appear to the court upon oath, that the witnesses for the king could not be produced in that time ; in such case, they shall be indicted the second term or assize, or else discharged. But, by the 7 W. and M., no person shall be prosecuted for high treason, but within three years after the offence was committed, except in the case of designing to assassinate the king's person.
Persons impeached of high treason by the house of Commons, whereby corruptions of blood shall be made, shall be admitted to make their full defence by two counsel, who shall be assigned for that purpose, in like manner as upon indictments and other prosecutions. They shall be allowed to make their defence by witnesses on oath. And they shall not be attainted but on the oath of two witnesses, either both of them to the same overt act, or one of them to one, and the other of thein to another overt act of the same treason ; unless they shall confess, or stand mute, or refuse to plead, or peremptorily challenge above 35 of the jury.
The horrible judgment for high treason (except in cases relating to coin,) is, that the traitor shall be carried back to the place from whence he came, and from thence be drawn to the place of execution, and be there hanged by the neck, and cut down alive, his entrails taken out, and burnt before his face, his head cut off, his body divided into four quarters, and his head and quarters disposed of at the king's pleasure. A woman convicted of treason is drawn and burnt.
In the judgment of high treason, the forfeiture of lands and goods to the king is implied, likewise the loss of dower, and the corruption of blood.
Any connexion with the exiled royal family during their lifetime was high treason, but after the extinction of that royal but unfortunate line, no attainder for treason disinherited or prejudiced any heir or other person, other than the offender during his life.
Treason can only be committed against the king ; there can be none against the parliament, for the oath of allegiance is to the king alone, as the only supreme governor ; he has no partners in the supremacy. If a man offends against either or both houses of parliament, he is not guilty of treason, but of a breach of privilege, and punished accordingly by imprisonment.
Petit Treason.—This is also defined by the famous statute of 25 Ed.