gave the following excuse for not having criminated the prisoner on the first occasion: "Some on the Bench can make my apology for not giving all my evidence then; for it was not convenient; because it would have stopt a design I was then upon; being then treating with the Lords in the Tower. Reading, the Solicitor of the Lords, told me that he would rely on my power of aiding the Lords, according as I would bring off Whitbread and Fenwick. If I brought these men off, the Lords in the Tower would believe that I would bring them off too. For this reason I did not say all or half I could have said."

The Common Law, as Virgil said with less or no justice of woman, varium et mutabile semper, even without any manumitting decision, may be considered to have been emancipated from a Rule of Practice than which there was "nothing more ordinary" in the time of Sir Matthew Hale. In the case of the Kinlochs in 1746, in which a juror had been withdrawn at the request of the prisoners, in order to enable them to plead to the jurisdiction of the Court, no evidence having been delivered, the Judges who held that this was not a bar to a trial, according to Sir M. Foster, "joined in condemning the proceedings in the case of Whitbread and Fenwick as cruel and illegal." Sir Michael Foster thus expressed his own opinion, (of the highest estimation in criminal law): "This is not a question, nor, I hope, will ever be a question again, whether, in a capital case, the Court may, in their discretion, discharge a Jury, after evidence given and concluded on the part of the Crown, merely for want of sufficient evidence to convict, and in order to bring the prisoner to a second trial, when the Crown may be better prepared. This was done in the case of Whitbread and Fenwick, and it was certainly a most unjustifiable proceeding; I hope it will never be drawn into example." Had Whitbread not been a Papist, but a Leader of the Whig party, it is probable that his attainder, as those of many others of his religion, would have been reversed at the Revolution.

With regard to the Postponement of trials;-it was the practice of the Courts in the reign of Charles II., that in State Prosecutions, the Attorney-General, and not the presiding Judge or Judges, was arbiter of what were fitting occasions for the postponement of any trial: the King's Courts, it was deemed fitting, were to proceed on the King's business, at the King's time, and the maxim, De vitâ hominis nulla est cunctatio longa, like other general rules, had an exception in favor of Majesty. Lord Russell petitioned Chief Justice Pemberton that his trial might be postponed for a day, on the grounds that he had been only just arraigned and made acquainted with the particulars of his indictment, that he had not been able to obtain a copy of the jury-panel, and that he expected witnesses who would not arrive in town before night: the following discussion ensued.

Chief Justice Pemberton (to the Attorney-General). That my Lord may not be surprised, what think you of giving my Lord time till the afternoon, and try some of the rest in the meantime?

Attorney-General. Truly, my Lord, if I could imagine it were possible for my Lord to have any witnesses I should not be against it.

Lord Russell. It is very hard.

Attorney-General. Do not say so, the King does not deal hardly with you; but I am afraid it will appear you would have dealt more hardly with the King (insinuating that Lord Russell was privy to the Rye-House Assassination Plot, which was never attempted to be proved); you would not have given the King an hour's notice for saving his life.

Chief Justice. Mr Attorney, why may not this trial be respited till the afternoon?

Attorney-General. Pray call the Jury.

Chief Justice. My Lord, the King's Counsel think it not reasonable to put off the trial longer; and we cannot put it off without their consent.

With this refusal of a brief postponement of a capital trial, may be compared the conduct of Chief Justice Jeffreys on the prosecution of Sir S. Barnardiston, where, upon the Counsel for the Crown not being prepared with the records of the convictions of Russell and Sydney, he put the trial off until they could be sent for and brought. This delay occupied an hour and a half, the Chief Justice saying, "It will be no hindrance, I will do something in the meantime."

(c) Denial of Copies of Indictments.

It ought to be a principle of Criminal Jurisprudence to afford a prisoner pre-knowledge, and accurate knowledge, of any charge upon which he is to be tried, so far as the privilege is not overbalanced by some manifest public detriment thereby resulting. A prisoner during the reign of Charles II. was uniformly denied a copy of his Indictment; a copy of his Jurypanel was not, as appears from the trials of Colledge, Russell, and Sydney, furnished with regularity; and it probably would have been deemed a contempt of Court to have asked beforehand for copies of depositions, or a list of the Crown's Witnesses. Not even a sight of the indictment was permitted to a prisoner, although after his conviction. Algernon Sydney, when called upon to be sentenced, thus applied:-" Will you give me leave to see the Indictment, if it please you?" to which the Chief Justice answered, "No, that we cannot do."

Fitzharris was denied both a sight or copy of his Indictment when requested by him in order to plead to it the very important plea of the pendency of an Impeachment for the same cause. In Rosewell's case, Chief Justice Jeffreys, after the conviction of the prisoner, let him off upon a flaw in his indictment, which he countenanced in a very unusual way, and, as Lord Keeper Guilford expressed it in his note-book, "gavisus de errore." Counsel were assigned to make out the flaw, and they

reasonably applied (this being after conviction) for a copy of that part of the indictment to which their objection attached, and of which they had only a loose and imperfect account by memory. Jeffreys's answer is remarkable: "Look ye, if you speak to me privately, as to my own particular opinion, it is hard for me to say that there is any express resolution of the law in the matter; but the practice has been always to deny a copy of the Indictment. And, therefore, if you ask me as a Judge to have a copy of the indictment delivered to you in a case of high treason, I must answer you, shew me any precedents where it was done. For there is abundance of cases in the law which seem hard in themselves, but the law is so, because the practice has been so; and we cannot alter the practice of the law without an Act of Parliament. I think it is a hard case, that a man should have Counsel to defend himself for a twopenny trespass, and his witnesses examined upon oath, but if he steal, commit murder, nay, high treason, where life, estate, honour and all are concerned, he shall neither have Counsel, nor his witnesses examined upon oath. But yet you know, as well as I, that the practice of the law is so; and the practice is the law."

By the present law, in trials for treason, other than that of designing personal injury to the Sovereign, a prisoner is entitled, by statutes of William III., Anne, and the Jury Act of Geo. IV., to a copy of his Indictment, and a list of his Jurors, and of the Witnesses to be produced against him, ten days before his trial.

1 On the trial of the Seven Bishops in the next reign, in which a harsh Rule of Practice was enforced, of obliging the prisoners to plead instanter to a misdemeanor on being brought into Court upon a commitment in the first instance, and not by capias, the Attorney-General said, "There are many things which seem hard in law. It is a hard case that a man tried for his life for treason or felony, cannot have a copy of his Indictment, cannot have counsel, cannot have witnesses sworn ; but this has been long practised, and the usage has grown to a law." It would seem that neither Jeffreys nor the Attorney-General of James II. made any secret of their disbelief in the theoretical perfection of the public law they administered, but which has been held up to admiration by modern Optimists.

And, more recently, by statutes of William IV. and Victoria, every person held to bail or committed to prison, is entitled, upon payment of a reasonable sum, to copies of the depositions on which they have been held to bail, or committed. And all persons under trial may inspect all depositions taken against them and returned into Court without fee or reward. In the excepted treasons of designing personal injuries to the Sovereign, as in felonies, the allowance of a Copy of the Indictment is discretionary; in offences inferior to felony, a Copy of the Indictment is usually, in practice, allowed. The expediency of furnishing prisoners accused of treason with copies of the lists of the Witnesses and Jury ten days before a trial, has been questioned by Sir M. Foster; it is defended by Mr Hallam. The law in these respects was in a great measure the handiwork of legislators who corresponded with the Stuart family; but the criterion of good law is not the purity of its source, and the law of treason may have been improved by the criticisms of traitors.

(d) Outlawry.

An iniquitous Rule was laid down and acted upon in the reign of Charles II., whereby a person outlawed in a capital case, and who, according to a statute of Edward VI., would be entitled to traverse the outlawry within a year, and have the benefit of a trial, was debarred such benefit if brought up in custody, and not under a voluntary surrender. Cogent, indeed, ought to be the policy, and unambiguous the law, which, under any circumstances, can justify sentence, especially a capital sentence, without trial.

Sir T. Armstrong had fled for the same alleged plot for which Russell and Sydney suffered. He had been seized at Leyden, and was brought to the bar of the Court of King's Bench, to receive sentence of execution as upon an outlawry. He desired to be put upon his trial, and relied on the plain terms of the statute of Edward VI., arguing that the year allowed by the statute was not expired, and that, consequently, he might