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The works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) online

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himfelt niiracuhniHy interpofed to reduce her by a method fo fudden and inconceivable
as carried the plain marks of infpired wifdom, and fuch as was far above the natural
attamments ot a youth not yet arrived to maturity of years or judgment. I'or though, by
varying in their evidence, he plainly convifted them to be falfe witnelTes, yet who but God
alone could have forefeen that they would thus have varied in their evidence, fince there was
no law which obliged them to be fo exaft in every little circumflance as to remember under
what kind of tree the fad alleged was committed ? i'^cr the witnefles of any criminal aftion
are not luppofed to take notice of every bufh, or other circumilance of place, which leemed
to import nothing, either as to the detefling or aggravating of the crime. But when thofe
wicked judges, in fuch their wilful depofition, varied concerning the fpecies of the tree, their
own words demonlfrated that they had prevaricated and deviated from the truth, wheieb '
they had defervedly incurred the fentence of the law of Mofcs, according to which they did
unto them in fuch fort as they malicioufly intended to do to their neighbour; and tliey pu:
them to death.

You have, moil: gracious Prince, within your own memory, a remarkable inftance how
much juflice may be perverted, in the cafe of Mr. John Fringe, who, after he had been ii
piielfs' orders for three years, was, by his own procurement, and the depofition of two falfi
witnefles, who fwore that he had been formerly contratled to a certain young girl, com-
pelled to quit his orders and to marry her. After cohabiting with her toLirteen years, and
liaving had by her kvcw children, being at lad convidled of high treafon againlt yotjir
highnefs, in the very article of death, and in the hearing of a midtitude of people, he
declared that thofe witnefles had been fuborned by him, and that what they depofed wms
utterly falfe and groundlefs. Many like inllances you may liave heard of, where julf ice has
been perverted by means of falfe witnelTes, even under judges of the greateft integrity, as 's
notorious to thofe who converfe with and know mankind. This fort of wickednefs, alas ! 's
but too frequently conmiitted.

0)1 the Laws of E7ig!d?icL 405

Cfiap. XXII.

Concerning 'Torture.

^^||OR this reafon the laws of In-ance, in capital cafes, do not tliink it enough to
convift the acculeJ by evidence, left the innocent fhould thereby be condemned ;
but they choofe rather to put tlic accufed themfelves to the rack, till they
contefs their guilt, than rely entirely on the depofition of witnelTes, who very often, from
unreafonable prejudice and pailion, ibmetimes at the inftigation of wicked men, are fuborned,
and fo become guilty of perjury. By which over cautious and inhuman ftretch of policy,
the fufpected as well as the really guilty are, in that kingdom, tortured fo many ways a; is
too tedious and bad tor defcription. Some are extended on the rack till their very fm-.-ws
crack, and the veins gulh out in ibeams of blood : others have weights hung to their feet,
till their limbs are almoll torn afimder, and the whole body diflocated : fome have their
mouths gagged to fucli a widenefs tor a long time, whereat fuch quantities of water are
poured in that their bellies fwell to a prodigious degree, and then being pierced with
a faucet, Ipigot, or other inftrument toi- the purpole, the water fpouts out in great
abundance, like the whale, if one may iile the comparilon, which, together with his prey,
having taken in vaft quantities of fea-water, returns it up again in fpouts to a very crreat
height. To defcribe the inhumanity of fuch exquitite tortures affecls me with too real
a concern, and the varieties of them are not to be recounted in a large volume. The civil
laws themfelves, where there is a want of evidence in criminal cafes, have recourle to the
like methods of torture for fiftingout the truth. Moft other kingdoms do the fame: now,
what man is there lo llout or refolute who has once gone through this horrid trial
by torture, be he never fo innocent, who will not rather confefs himielf guilty of all
kinds of wickednels than undergo the like tortures a fecond time i" Who would not rather
die once, fince death would put an end to all his fears, than to be killed fo many times, and
fufFer fo many hellifh tortures, more terrible than death itfelf ? Do you not remember, my
Prince, a criminal, who, when upon the rack, impeached of treafon a certain noble knight,
a man of worth and loyalty, and declared that they were both concerned together in the
fame confpiracy : and, being taken down from the rack, he ftill perfifted in the accufation,
left he ftiould again be put to the queltion .'^ Neverthelefs, being fo much hurt and reduced
by the leverity ot the pimilhment, that lie was brought almoft to the point of death, \\\h-r
he had the viaticum and Sacraments adminiftered to him, he then confelTcd, and tookaveiv
folemn oath upon it, by the body of Chrift ; and as he was now, as he imagined, juft going
to expire, he affirmed that the laid worthy knight was innocent and clear of ever)'thiiig he
had laid to his charge : he added that the tortures he was put to were lo intolerable,

I. .3 G.

4o6 0)1 the Laws of E?igla?!(i.

that, rather than fuffer them over again, he would accufe the fame perfon of the fame
crimes; nay, his own father: though, when he faid this, he was in the bittcrnefs of death
when all hopes of recovery were over. Neither did he at laft efcape that ignominious death,
for he was hanged ; and at the time and place of his execution, he acquitted the laid knight
of the crimes wherewith he had, not long before charged him. Such cunfedions as thefe,
alas ! a great many others of thofe poor wretches make, not led by a regard to truth,
but compelled to it by the exquifitenefs of their torments ; now, what certainty can there
arife from fuch extorted confeHions ; but fuppole a perfon falfely accufed fhould have
fo much courage, fo much fenfe of a life after tliis, as, amidll the terrors of this tiery trial,
like the three young Jews of old, (Dan. iii.), neither to diflionour God nor lie to the
damnation of his foul, fo that the judge fhould hereupon pronounce him innocent : does he
not with the fame breath pronounce himfclf guilty of all that cruel punil iment which he
infiided upon fuch perfon u!idefervedly ? And how inhuman mull that law be which does
its utmoit to condemn the innocent, and conviift the judge of cruelty? A praftici' fo
inhuman delerves not indeed to V, called a law, but the high road to hell. O Jud-^e !
in what fchool of humanity did you learn this cuftom of being prefcnt and afrifting w'lile
the accufed wretch is uj. on the rack. The execution of the fentence of the law u ion
criminals is a tafk fat only for little villains to perform, picked out from amongft the re.'ufe
of mankind, who are thereby rendered infamous for ever at'ter, and unfit to acT; or appea • in
any court ofjuftice. God Almighty does not execute his judgments on the damned by the
mlnillration of angels, but of devils ; in purgatory they are not good fpirits which torment
and exercife fouls, though predelHnated to glory, but evil fpirits. In this world the wick;d,
by the permifTion of God, Inflift the evil of puniChment on fmners. For when Gcd laid
(i Kings xxii. 20), "Who iTiall perfuade Ahab that he may go up and fall at Ramoth
Gilead," it was an evil fpirit which came forth and iaid, " I will be a lying fpirit iif the
mouth of all his prophets :" though God, for julT: reafons, had determined to fuffer Ahab to
be perfuaded, and deceived by a lie, yet was it by no means becoming a good fpirit ^o be
employed on fuch an errand. Perhaps the judge will fay, I have done nothing of myfelf in
inflifling thefe tortures, which are not by way of punifliment, but trial ; but how does
it differ whether he does it himfelf while he is prefent on the bench, and, with reite/ated
commands, aggravates the nature of the crime, and encourages the officer in the execution
of his office? It is only the mafter of the fhip who brings her into port, though, in
purfuance of his orders, others ply the fleerage : for my own part, I fee not how it
is poHible for the wound which fuch a judge muff give iiis own confcience eve ■ tc clofe up
or be healed ; as long, at leafl, as his memory f'erves him to refled: upon the bitter tortures
lb unJLif-tly and inhumanly infliL:ted on the innocent.

Ofi the Laivs of England. ^07

Cfiap. XXIII.

The Civil Law defetlive in doing jiijlice.

^ P^ll'-^^'^^"^'^-'^' '^''^ '"''g'^'^ accrues to a man to plead upon a trial which arifes from a
^j pX-'^^ contrad:, a ix&. done, a title of Inheritance, or the like: in thefc cafes, if either
SiA^M^ there were no witnefTes at the firft, or if they that were are dead, the plaintiff
will be obliged to drop his adion, unlefs he can prove his riglit by fuch rtrong circuniliantial
proofs as are not to be evaded, which feldom happens. Where lordfhips and other polTelFions
are in difpute, and in all other aftions which fall under the jurifdidion of the civil law,
the anions of the plaintiffs are very often rendered incapable of being brought to an iffue for
want of evidence, fo that fcarce one half of them can attain the end propofed : under what
denomination, then, is that law to be ranged, which, where parties are injiired, is fo defetT:ive
in making fatisfadion ? I queftion whether fuch a law can be called juft, if that be true
which this very law informs uj, viz., " That juilice gives to every one their due,"
which fuch a law as this moft certainly does not.

Chap. XXIV.

TJie divifton of Counties, Sheriffs, and their appointment.

yf>^T being thus explained how the Civil Laws direift the judge concerning the truth
^P^ of a fiifl:, which is brought on to trial, it remains to be explained hiow the Laws

of England boult out the truth of a fad, when it comes in iffue. The manner
of proceeding in both laws being laid, and compared together, their qualities will appear the
more eminently, according to that faying of the Philofopher, " Oppofites placed together give
light to one another." But here, by way of introduiflion, and to borrow the rule or method
ufed by orators, it may be neceffiry to premife fome things, a right underftanding whereof
will help to let us into a more clear and diftinL-l: underftanding of what follows. 1 proceed
thus : England is divided into counties, as France is into bailiwicks, or provinces, io that
there is no place in England, which is not within the body of fome county ; count is are
divided into hundreds, which in fome parts of England are called wapentakes, and hui dreds,
again, are fubdivided into vills, under which appellation cities and boroughs are included.
The boundaries of thofe vills are not afcertained by walls, buildings or ftreets ; but, by a
compafs of fields, large diftric^s of land, fome hamlets, and divers other limits; as rivers,
water-courfes, woodlands, and wafles of common, which there is now no occafion to deicribe

'■! j.ii: ■;
■Ji;:r .li

4o8 On the Laivs of Fji gland.

by their particular names ; becauft- there is fcarce any phice in England, but what is within
the litnits ot (ome vill, though there be certain privileged places within vills, which are not
reputed as parts or parcels of fuch vills ; farther, there is in every county a ceitain officer,
called the King's Sheriff, who, amongft other duties of his office, executes within his county
all mandates and judgments of the King's Courts of Juftice : he is an annual officer; and
it is not lawful for him, after the expiration of his year, to continue to att in his faid office,
neither fliall he be taken in again to execute the faid otHce within two years thence next
enfuing. The manner of his eleiflion is thus : E^'ery year, on the morrow ot All-Souls,
there meet in the King's Court of Exchequer, all the King's Counfellors, as well lords
fpiritual and temporal, as all other the King's Jullices, all the Barons of the Exchequer, the
Mailer of the Rolls, and certain other officers, when all of them, by common confent,
nominate three of every county Knights or Efquires, perfons of diftinftion, and fuch as they
efteem fittei!; qualified to bear the office of Sheriff of that county, for the year enluing : the
king only makes choice of one out of the three fo nominated and returned. Who, in virtue
of the King's Letters Patent, is conllituted Migh Sheriff of that county, for which he is fo
chofen, for the year then next enfuing. But, before he can take upon him to act in conl ;-
quence of the faid Letters Patent, he fliall fwear upon the holy Evangclirts, anionglt oth n-
claufes, well, faithfully, and indifferently to execute and do his duty for that year, and th it
he will not receive anything, under pretext or colour of his faid office, from any one, oth :r
than and except from the King's Majefty. This being premifed, let us now proceed to thofe
other matters which fall in with our prefent inquiry. '

Chap. XXV.
Jurors, Jwzv chofen and /worn.
l-TFKTqnFVFR rhe

nf^HENSOEVER the parties, contending in the King's Courts, are come to the
iffue of the plea, upon the matter of fad, the jullices forthwith, by virtue of 'the
King's Vv'rit, write to the Sheriff' of the County, where the lad; is fuppofed to be,
that he would caufe to come before them, at a certain day, by them appointed, twelve good
and lawful men of the neighbourhood, where the fad is (uppofed, who fland in no relation
to either of the parties who are at iHue, in order to inquire, and know upon tluir oaths, if
the fad be fo as one of the parties alleges, or whether it be as the other coriti nds it with
him. At which day the Sheriff ffiall make return of the faid writ before the fame Juifices,
with a panel of the names of them whom he had fumuToned for that purpofe. In cafe they
appear, either party may challenge the array, and allege, that the Sheriff hath ae'teJ therein
partially, and in favour of the other party, viz., by iummoning fuch as are too much parties

On the Laws of Riiglaiul. 409

in the caufe and not indifferent ; which exception, if it be found to be true upon the oath of
two men of the fame panel, pitched on by the Juftices, the panel (hall immediately be
quafhecl, and then the Jurtices fhall write to the coroners of the fuiie county, to make a new
panel ; in cafe that likewife fhould be excepted againft, and be made appear to be corrupt
and vicious, this panel fhall alfo be quaflied. Then the Jul^ices fhall choofe two of the clerks
in court, or others ot the fame county, who, fitting in the court, iTiall upon their oatlis make
an indifferent panel, which fliall be excepted to by neither of the parties ; but, being fo
impanelled, and appearing in court, either party may except againd any particular perfon ;.
as he may at all times, and in all cafes, by alleging that the perfon fu impanelled is of kin,
either by blood, or affinity to the other party ; or in fonie fuch particular intered, as he
cannot be deemed an indifferent perfon to pafs between the parties : of which fort of excep-
tions there is fo much variety as is impoffible to fhow in a fmall compafs : if ariy one )f the
exceptions be made appear to the court to be true and reafonable, then he againft who n the
exception is taken, fhall tiot be iworn, but his name Hiall lie ftruck out ot the panel : in like
manner fliall be done with all the reft ot the panel, until twelve be fworn, fo indlftcrent .is
to the event of the caufe, that neither of the parties can have reafonable matter of challenge
againft them : out of thele twelve, four, at the le.ift, (hall be hundredors, dwelling in the
hundred, where the vill is fituate, in which the f.iA difputed is fuppofed to be ; and every
one of the jury fliall have lands, or revenues, for the term of his life, of the yearly value at
leaft of twelve fcutes.' This method is obferved in all actions and cauies, crmimal, real, or
perfonal ; except where, in perfonal anions, the damages, or thing in demand, fhall not
exceed forty marks Englifti money; becaufe, in fuch like aftions of fmall value, it is not
neceffary, nor required, that the jurors ftiould be able to expend fo much ; but they are
required to have lands, or revenues, to a competent value, at the difcretion ot the juftices;
otherwife they ffiall not be accepted ; left, by reafon of their meannefs and poverty, they may
be liable to be eafily bribed, or iuborned : and in caie, after all exceptions taken, fo many be
ftruck out of the panel that there does not remain a lufficient number to make up the jury,
then it fhall be given in charge to the Sheriff", by virtue of the King's writ, that he add more
jurors; which is ufually and often done, that the inquiry of the truth upon the iftue in
queftion may not remain undecided for want of jurors. This is the form how jurors, who
inquire into the truth, ought to be returned, choien, and Iworn in the King's Courts
of Juftice; it remains to inquire and explain how they ought to be charged and informed as
to their declaration of the truth of the iffue between them.

' The fcute, or crown, was a gold coin olthe value of three {hillings and four pence.

41 o 0?i the Laws of RiJglaiuL

Chap. XXVI.

The ivny of proceeding in Civil Ciinfes.

5J^^ pTTMVELVE good and true men being fworn, as in tlie manner above related, legally
fjlVJ -S^ qualified, that is, having, over and befides their moveables, pofreirions in land
^|^2i^>, iufficicnt, as was faid, wherewith to maintain their rank and ilation ; neitlier
iulpe6tei.l by, nor at variance with either of the parties; all of the neighbourhood; there
iliall be read to them in F.nglifb, by the Court, the Record and nature of the plea, at length,
which is depending between the parties : and the liTue thereupon fhall be plainly laid behjrc
them, concerning the truth of which, thole v.'ho are fo fworn, are to certify tl e Court: which
done, each of the parties, by themfelves or their counl'el, in prefence of Lhe Court, fhall
declare and lay open to the jury all and fingular the matters and evidences, whereby they
think they may be able to inform the Court concerning the truth of the point in queftion ;
after which each of the parties has a liberty to produce before the Court all fuch witneOe: as
they pleaie, or can get to appear on their behalf; who being charged upon their oath^, fliall
give in evidence all that they know touching the truth of the fad, concerning win di 'he
parties are at ifTue : and, if neceffity fo require, the witnelTes may be heard and exaiiiied
apart, till they (hall have depofed all that they have to give in evidence, fo that what the
one has declared fhall not inform or induce another witnefs of the fame fide, to give lis
evidence in the fame words, or to the very fame effed. The whole of the evidence being
gone through, the jurors fhall confer together, at their pleal'ure, as they fhall think m )fl
convenient, upon the truth of the iflue before them ; with as much deliberation and leifure
as they can well defire, being all the while in the keeping of an ofliccr of the Court, ^in a
place affigned to them for that purpole, left any one fliould attempt by indirect methods to
influence them as to their opinion, which they are to give into the Court. Laftly, they; are
to return into Court, and certify the Juftices upon the truth of the iffue fo joined, in the
prefence of the parties, if they pleaie to be prefent, particularly the perfon who is plaiikifF
in the caufe. What the jurors fhall lo certify in the laws of England, is called the verdid.
In purfuance of which verdiifl, the Jull:ices fhall render and form their judgment. Notwith-
itanding, if the party againfl: whom fuch verdict is obtained complain that he is thereby
aggrieved, he may fue out a writ of attaint, both againlT: the jury, and alfo again \ the party
who obtained it; in virtue of which, if it be found upon the oath of twenty four men,
returned in manner before obferved, chofen and fworn in due form of law, who ought to
have much better eilates than thofe who were firft returned and fworn, that thofe who were
of the original panel and fworn to try the faft, have given a verdiil't contrary to evidence,
and their oath ; every one of the firiT: jury ihall be committed to the public gaol, their

0)1 the Laws of E.)i^laiid.


goods fhall be confifcated, the poHefrions feized into the king's hanils, their habitations and
houfcs fhall be pulled down, their woodlands Oiall be felled, their meadows (hall be ploughed
up, and they themfelves niall ever thenceforward be efteeined, in the eye of the law,
infamous, and in no cafe whatfoever are they to be admitted to give evidence in any Court
of Record : the party, who fuffered in the former trial, (hall be reftored to everything they
gave againfl: him, through occafion of fuch their fal(e verdie'l : and who then (though he
fhould have no regard to confcieiice or hone(T:y) being fo charged upon his oath, would not
declare the truth (-rom the l)are apprehenfions and fhame of fo heavy a puiiifl-iment, and the
very great infamy which attends a contrary behaviour? and if, perhaps, one or more amongil
them fhould be fo unthinking or daring as to prollitute their charafter, yet the re('l: of the
jurors, probably, will fet a better value on their re[)utations than fufFer either their good
name or poflertions to be deftroyed and ("eized in fuch a manner. Now, is not this ni' thod of
coming at the truth better and more effeftual, than that way of proceeding which t le Civil
Laws prefcribe ■" No one's caufe or right is in this cafe loft, either by death or failure of
witneHes. Hie jurors returned are well known ; they are not procured for hire ; they are
not of inferior condition ; neither (Grangers, nor people of uncertain chara(51ers, whofe circum-
itances or prejudices may be unknown. The witnedes or jm'ors are of the neighbourhood,
able to live of themfelves, of good reputation and unexceptionable characters, not brought
before the Court by either of the parties, but chofen and returned by a proper officer, a
worthy, difmtereited and indifferent perfon, and obliged under a penalty to appear upon the
trial. They are well acquainted with all the fads, which the evidences depofe, and with
their (everal charafters. What need of more words ? there is nothing omitted which can
difcover the truth of the cafe at iflue, nothing which can in any refped be concealed from,
or unknown to a jury wlio are fo appointed and returned, I (ay, as far as it is polhble for the
wit of man to devife.

Ch.^p. XXVII.

The -ivay of froceeding /;/ Capital Cafes.

T becomes now abfolutely neceflary to inquire thoroughly how the laws of
England come at the truth in cafes criminal ; whereby the form of procei .lings
in both laws being made appear, we may the better judge which law does mull
efFedually difcover the truth. If any fufpeded perfon who (lands accufed for telu.iy or
trea(bn committed in England denies the crime of which he (lands acculed betore his
judges, the fherifF of the county where the fad is committed fliall caufe to come before the
fame judges twenty-four good and lawful men of the neighbourhood to the vill where the

r I'

4 1 2 On the Laws of England.

faft was done, who arc in no wife allied to the perfon accufcd, who have lands and revenues
to the value of an hundred iliillings; and they are to certify to the judc^es upon the truth ot
the fad, wherewith the party is charged. Upon their appearance in court, as they come to
the book to be fworn, before they lie fworn, the perfjn accufcd may challenge them, in the
fame manner as is above defcribed, and as is ufually done in real actions. Inirther, m
favour of life, he may challenge five and thirty, fuch as he mod fearcdi and fufpcdeth ; who,
upon fuch challenge, fliall be (truck out of the panel, or fuch marks fet over againft their
names, that ^to ufe the term in law) thev fliall not pafs upon him in trial ; and this
peremptorily, without aligning any caufe for fuch challenge; and no exceptions are to be
taken againil fuch his challenge. Who then in England can be put to death unjuftly tor any
crime ? fince he is allowed fo many pleas and privileges in favour of life : none but his
neighbours, men of honeft and good repute, againft whom he can have no probable caufe of
exception, can find the perfon accufed guilty. Indeed, one would much rather that twenty
guilty perfons (houid efcape the punilliment of death, than that one innocent perfon fhoul'l
be condemned, and fuffer capitally. Neither can there be any room for fufpicion, that in

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