atonement. But the common sense of mankind has been in this case, as in a thousand others, sounder than theories of unpractical thinkers.

The judge who punishes half because the evidence has sufficed to create half a conviction only, commits the same logical fault which a navigator would commit who has seen but dimly something that may be a rock, and would go but half out of the way of the danger. I say he commits the same logical fault, although the effects would be the reverse.

Punishment, which is the intentional infliction of some sufferance as deserved sufferance, (in which it differs from the infliction of pain by the surgeon,) requires the establishment of the deed, and this is absolute. The various degrees of belief in the deed are only in the judge, not in the deed. The deed must determine the different degrees of infliction of pain or privation, all else is illogical.

If the reader has thought that I have dwelt too long on this subject, he must remember that millions are to this day subject to such legal logic as has been described.

It will be hardly necessary to refer in this place to the fact, that, although the ascertainment of truth is the main object of the trial, it is not on that account allowed to resort to all and every means which may bring about this end. Sound sense, and a due regard to the rights of individuals, lead men to the conviction that a fixed law of evidence is necessary, and to prescribe rules according to which courts shall believe facts to be established, discarding all those means which may expose the accused to cruelty, which may be easily abused, which in turn may deceive, and whose effects in general would be worse than the good obtained. Truth, established according to those rules, is called legal truth. There can be but one truth, that is, the conviction agreeing with fact; but truth may be established by various means, or by means agreeing with prescribed rules. There may be one witness who testifies that he has seen a man doing that which, before the court can punish it, requires two witnesses. The judge may be thoroughly convinced that the witness speaks the truth, yet the truth would not be legally established-it would not be a legal truth. This, too, may appear unworthy of mention, but only to those who do not know how vehemently all persons hostile to liberty declaim against the dead letter of the law, the hollow formalism of the Anglican trial, and how anxious they are to substitute the subjective opinion of the judge for the positive and well-defined law. I may put it down

here as a fact of historical interest, that even so late as my early days, I heard a criminalist of some distinction regret the abolition of "the question," i. e. the torture; and I speak gravely when I say that, as times go in some countries, I should not be surprised if torture once more should be demanded by some jurists in them. Indeed, has it not been used? Mr. Gladstone's pamphlet on Neapolitan affairs tells us strange things.1

APPENDIX IV.

MAGNA CHARTA OF KING JOHN, 15TH DAY OF JUNE, IN THE 17TH YEAR OF THE KING'S REIGN, A.D. 1215.

JOHN, by the grace of God, king of England, Lord of Ireland, Duke of Normandy and Aquitain, and Earl of Anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries of the forests, sheriffs, governors, officers, and to all bailiffs and other of his faithful subjects, greeting. Know ye, that we, in the presence of God, and for the health of our soul, and of the souls of our ancestors and heirs, and to the honour of God, and the exaltation of holy church, and amendment of our kingdom, by advice of our venerable fathers, Stephen, Archbishop of Canterbury, Primate of all England, and Cardinal of the holy Roman Church; Henry, Archbishop of Dublin; William, Bishop of London; Peter, of

' It would seem that the torture actually continues to exist in some parts of Europe. The following is taken from the London Spectator, of December 22d, 1849, which gives as its authority the well-known Allgemeine Zeitung, published at Augsburg, and, consequently, not far from Switzerland.

"A strange circumstance, says the Allgemeine Zeitung, has just taken place at Herisau, the capital of Inner Appenzell, in Switzerland, showing how much in these countries of old liberties civilization is behindhand in some matters. A young girl of nineteen, some months back, assassinated her rival. Her lover was arrested with her, and, as she accused him of the crime, both were put to the torture. The girl yielded to the pain, and confessed her crime; the young man held firm in his denial: the former was condemned to death, and on the 7th of this month was decapitated with the sword, in the marketplace of Herisau. This fact is itself a startling one, but the details are just as strange. For two hours the woman was able to struggle against four individuals charged with the execution. After the first hour the strength of the woman was still so great that the men were obliged to desist; the authorities were then consulted, but they declared that justice ought to follow its course. The struggle then recommenced with greater intensity, and despair seemed to have redoubled the woman's force. At the end of another hour she was at last bound by the hair to a stake, and the sword of the executioner then carried the sentence into effect.'

Winchester; Jocelin, of Bath and Glastonbury; Hugh, of Lincoln; Walter, of Worcester; William, of Coventry; Benedict, of Rochester, bishops; and Master Pandulph, the Pope's sub-deacon and ancient servant; brother Aymerick, Master of the Temple in England; and the noble persons, William Marescall, Earl of Pembroke; William, Earl of Salisbury; William, Earl of Warren; William, Earl of Arundel; Alan de Galoway, Constable of Scotland; Warin Fitz Gerald, Peter Fitz Herebert, and Hubert de Burghe, Seneschal of Poictou, Hugo de Nevill, Matthew Fitz Herebert, Thomas Basset, Alan Basset, Philip de Albine, Robert de Roppele, John Marescall, John Fitz Hugh, and others our liegemen; have, in the first place, granted to God, and by this our present charter, confirmed for us and our heirs for ever:

I. That the Church of England shall be free, and enjoy her whole rights and liberties inviolable. And we will have them so to be observed; which appears from hence that the freedom of elections, which was reckoned most necessary for the Church of England, of our own free will and pleasure we have granted and confirmed by our charter, and obtained the confirmation of from Pope Innocent the Third, before the discord between us and our barons; which charter we shall observe, and do will it to be faithfully observed by our heirs for ever.

II. We have also granted to all the freemen of our kingdom, for us and our heirs for ever, all the underwritten liberties, to have and to hold to them and their heirs, of us and our heirs.

III. If any of our earls or barons, or others who hold of us 'n chief, by military service, shall die, and at the time of his death his heir shall be of full age, and owe a relief, he shall have his inheritance by the ancient relief; that is to say, the heir or heirs of an earl, for a whole earl's barony, by a hundred pounds; the heir or heirs of a baron, for a whole barony, by a hundred pounds; the heir or heirs of a knight, for a whole knight's fee, by a hundred shillings at most; and he that oweth less shall give less, according to the ancient custom of fees.

IV. But if the heir of any such shall be under age, and shall be in ward, when he comes of age he shall have his inheritance without relief, or without fine.

V. The warden of the land of such heir, who shall be under age, shall take of the land of such heir only reasonable issues, reasonable customs, and reasonable services; and that without destruction or waste of the men or things; and if we shall commit the

guardianship of those lands to the sheriff, or any other who is answerable to us for the issues of the land, and if he shall make destruction and waste upon the ward lands, we will compel him to give satisfaction, and the land shall be committed to two lawful and discreet tenants of that fee, who shall be answerable for the issues to us, or to him whom we shall assign. And if we shall give or sell the wardship of any such lands to any one, and he makes destruction or waste upon them, he shall lose the wardship, which shall be committed to two lawful and discreet tenants of that fee, who shall in like manner be answerable to us, as hath been said.

VI. But the warden, so long as he shall have the wardship of the land, shall keep up and maintain the houses, parks, warrens, ponds, mills, and other things pertaining to the land, out of the issues of the same land; and shall restore to the heir, when he comes of full age, his whole land stocked with ploughs and carriages, according as the time of wainage shall require, and the issues of the land can reasonably bear.

VII. Heirs shall be married without disparagement, so as that before matrimony shall be contracted those who are nearest to the heir in blood shall be made acquainted with it.

VIII. A widow, after the death of her husband, shall forthwith, and without any difficulty, have her marriage and her inheritance; nor shall she give anything for her dower, or her marriage, or her inheritance, which her husband and she held at the day of his death; and she may remain in the capital messuage or mansion-house of her husband, forty days after his death, within which term her dower shall be assigned.

IX. No widow shall be distrained to marry herself so long as she has a mind to live without a husband. But yet she shall give security that she will not marry without our assent, if she holds of us; or without the consent of the lord of whom she holds, if she holds of another.

X. Neither we nor our bailiffs shall seize any land or rent for any debt, so long as there shall be chattels of the debtor's upon the premises, sufficient to pay the debt. Nor shall the sureties of the debtor be distrained, so long as the principal debtor is sufficient for the payment of the debt.

XI. And if the principal debtor fail in the payment of the debt, not having wherewithal to discharge it, then the sureties shall answer the debt; and if they will, they shall have the lands and

rents of the debtor, until they shall be satisfied for the debt which they paid for him; unless the principal debtor can show himself acquitted thereof, against the said sureties.

XII. If any one have borrowed anything of the Jews, more or less, and dies before the debt be satisfied, there shall be no interest paid for that debt, so long as the heir is under age, of whomsoever he may hold. And if the debt fall into our hands, we will take only the chattel mentioned in the charter or instrument.

XIII. And if any one shall die indebted to the Jews, his wife shall have her dower, and pay nothing of that debt; and if the deceased left children under age, they shall have necessaries provided for them according to the tenement (or real estate) of the deceased; and out of the residue the debt shall be paid, saving, however, the service of the lords. In like manner let it be with debts due to other persons than the Jews.

XIV. No scutage or aid shall be imposed in our kingdom, unless by the common council of our kingdom, except to redeem our person, and make our eldest son a knight, and once to marry our eldest daughter; and for this there shall only be paid a reasonable aid.

XV. In like manner it shall be concerning the aids of the city of London; and the city of London shall have all its ancient liberties and free customs, as well by land as by water.

XVI. Furthermore, we will and grant that all other cities, and boroughs, and towns, and ports, shall have all their liberties and free customs; and shall have the common council of the kingdom concerning the assessment of their aids, except in the three cases aforesaid.

XVII. And for the assessing of scutages we shall cause to be summoned the archbishops, bishops, abbots, earls, and great barons of the realm, singly by our letters.

XVIII. And furthermore we shall cause to be summoned in general by our sheriffs and bailiffs, all others who hold of us in chief, at a certain day, that is to say, forty days before the meeting, at least, to a certain place; and in all letters of such summons, we will declare the cause of the summons.

XIX. And summons being thus made, the business shall proceed on the day appointed, according to the advice of such as shall be present, although all that were summoned come not.

XX. We will not for the future grant to any one, that he may take aid from his own free tenants, unless to redeem his body, and

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