For the further prevention of abuses, it is an invariable usage, that the trial be public. The prifoner neither makes his appearance, nor pleads, but in places where every body may have free entrance; and the witneffes when they give their evidence, the Judge when he delivers his opinion, the Jury when they give their verdict, are all under the public eye. Laftly, the Judge cannot change either the place or the kind of punishment prescribed by legal fentence; and a Sheriff who should take away the life of a Man in a manner different from that which the law prescribes, would be profecuted as guilty of murder. (a)

Duke of Buckingham, "If you will not confefs, you must go to the Rack;" the Man replied, "If it must be so, I "know not whom I may accuse in the extremity of the tor"ture; Bishop Laud perhaps, or any Lord at this Board." "Sound fenfe, (adds Fofter) in the mouth of an Enthu "fiaft and a Ruffian !"

Laud having proposed the Rack, the matter was shortly debated at the Board, and it ended in a reference to the Judges, who unanimously refolved, that the Rack could not be legally used.

(a) And if any other perfon but the Sheriff, even the Judge himself, were to cause death to be inflicted upon a Man though convicted, it would be deemed an homicide.See Blackstone, L. iv. ch. 14.

In a word, the Conftitution of England being a free Conftitution, demanded from that circumstance alone, (as I should already have but too often repeated, if fo fundamental a truth could be too often urged) extraordinary precautions to guard against the dangers which unavoidably attend the Power of inflicting punishments; and it is particularly when confidered in this light, that the Trial by Jury proves an admirable institution.

By means of it, the Judicial authority is not only placed out of the hands of the Man who is vested with the Executive authority :—it is even out of the hands of the Judge himself. Not only, he who is trufted with the public power cannot exert it, till he has as it were received the permiflion to that purpose, of those who are fet apart to adminifter the laws; but thefe are also restrained in a manner exactly alike, and cannot make the law fpeak, but when, in their turn, they have likewise received permiffion.

And thofe perfons to whom the law has delegated exclusively the prerogative of deciding that a punishment is to be inflicted,

thofe Men without whose declaration the Executive and the Judicial powers are both thus bound down to inaction, do not form among themselves a permanent Body, who may have had time to ftudy how their power can serve to promote their private views; they are Men felected at once from among the people, who perhaps never were before called to the exercife of fuch a function, nor foresee that they ever fhall be called to it again,

As the extensive right of challenging effectually baffles, on the one hand, the fecret practices of such as in the face of so many difcouragements might still persist in making the judicial power fubfervient to their own views, and on the other excludes all perfonal refentments, the fole affection which remains to influence the integrity of those who alone are intitled to put the public power into action, during the short period of their authority, is, that their own fate as fubjects, is effentially connected with that of the Man whofe doom they are going to decide.

In fine, fuch is the happy nature of this inftitution, that the Judicial power, a power so formidable in itself, which is to difpofe without finding any refiftance, of the property, honour, and life of individuals, and which, whatever precautions may be taken to restrain it, must in a great degree remain arbitrary, may be said in England, to exift,-to accomplish every intended end, and to be in the hands of nobody. (a)

In all these observations on the advantages of the English criminal laws, I have only confidered it as connected with the Constitution, which is a free one; and it is in this view alone that I have compared it with the Jurifprudence received in other States. Yet, abstractedly from the weighty constitutional confiderations which I have fuggested, I think there are still other interesting grounds of

(a) The confequence of this Inftitution is, that no Man in England ever meets the Man of whom he may say, "That "Man has a power to decide on my death or life.” If we could for a moment forget the bleffings of that Inftitution, we ought at least to admire the ingenuity of it.

pre-eminence on the fide of the laws of England.

They do not permit, that a Man should be made to run the rifque of a trial, but upon the declaration of twelve perfons at least, (the Grand Jury). Whether he be in prifon, or on his Trial, they never for an inftant refuse free accefs to those who have either advice, or comfort, to give him: they even allow him to fummon all who may have any thing to fay in his favour. Lastly, what is of very great importance, the wit-neffes against him must deliver their teftimony in his presence; he may cross-examine them; and, by one unexpected question, confound a whole fyftem of calumny: indulgences these all, denied by the laws of other Countries.

Hence, though an accused person may indeed be exposed to have his fate decided by perfons (the Petty Jury) who poffefs not, perhaps, all that fagacity which in some delicate cafes it is particularly advantageous to meet with in a Judge, yet this inconvenience is amply compenfated by the extenfive means of defence with which the law, as we have