intreated the prophet that it might be restored, it was healed at his intercession. Mr. Rosewell in his discourse then quoted from an annotator on the bible, that a godly man's prayer is a sovereign cure of the king's evil,' not meaning the scrofula, but any disease which a king might happen to have, &c. There was nothing said about 'flocking to the king' at all.

In his second discourse, he expounded Heb. 11. v. 12. which alludes to Abraham's having a son in his extreme old age, from whom a great multitude of descendants sprung. He took occasion to observe, that God could effect great matters by very small and improbable means. He instanced the throwing down of Jericho by the sound of rams' horns, the destruction of the Midianites by Gideon, with a few broken pitchers, and the killing of Goliath by David with a sling.

It seems probable, these women, immediately after they heard these discourses of Mr. Rosewell, had conversed together in relation to them, and had agreed in putting their own erroneous interpretation upon them, and through the effect of imagination, had come to the belief that he had actually made use of the expressions charged, because they expressed the meaning, which, on a conference with each other, they concluded was intended by Mr. Rosewell. Mr. Rosewell's loyalty and innocence of any treasonable intention was established in evidence by a great number of witnesses, who testified particularly to his uniform practice of praying publicly for the king. On one occasion he was overheard praying for him in secret prayer, by one of his servants. He was however found guilty of high treason, and would have been executed, if there had not been a want of technical certainty in the indictment, in describing the charge. As soon as Mr. Rosewell made the exception, it was readily entertained by Ch. Jus. Jeffries, who stood firmly by the law, and seemed disposed to sustain the exception. But, in all probability, it was thought to be bad policy to let a prisoner off, by a motion made in arrest of judgment for a defect in the indictment, which, it does not appear, could have been avoided, and Mr. Rosewell was therefore pardoned.

After the exception to the indictment for want of certainty, was made by Mr. Rosewell, the Chief Justice assigned Mr.

Pollexfeu to be his counsel to argue the motion in arrest of judgment; Mr. Pollexfen then moved for a copy of the indictment, because it might be necessary to know its precise tenor. The Ch. Jus. would not grant it, but expressed his opinion of the unreasonableness of withholding it, in the following terms. Why look ye, Mr. Pollexfen,-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 always been 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, show me any precedents where it was done. For, there are 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 two-penny trespass, and his witnesses examined upon oath; but, if he steal, commit murder or felony, 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.'

It is very plain from many other cases, besides those which have been named, that it is too much to expect of the trial by jury, that it should always guaranty a fair trial to the prisoner, even if the jury are free from all responsibility for the correctness of their verdict, unless the prisoner has secured to him, the right to a copy of the indictment, that of being heard by his counsel without any restrictions whatever as to questions of law; the right to compel the attendance of his witnesses, and that of having them put on oath, all which were formerly withheld.

But so long as juries shall be protected in the free exercise of their understandings, as they now are in this country, it will be impossible for any government to practise any very gross oppression upon the citizens in general, under the forms of legal trials.

It is on this account, that the people should carefully guard this mode of trial from change or alteration. For, as it is one

of the strongest safeguards of the civil rights of the people; it will be one of the first upon which lawless power will desire to lay its hands, under the pretext of improvement. But, here at least, it is hoped, the hand of innovation will be prevented from any modifications which will affect its sense of common interest, its impartiality and independence.

It is true, juries are very properly under the control of the court in many respects; and may be punished for a contempt, if they neglect or refuse to perform their duty; if they refuse to submit to the lawful direction of the court as to their behaviour during a trial; as, for example, if they should refuse to come in or to go out at the request of the court, or should persist in disturbing the course of a trial by grossly disorderly conduct, persisting in asking illegal questions after notice from the court, or any other similar absurdities or improprieties. And therefore it has been held, that, if the jury separate improperly, they may be punished at the discretion of the court, as for a contempt. 2 B. & Al. 462. So, if they should eat or drink without the direction of the court, before finding their verdict, even if it be at their own expense; but, for a stronger reason, if at the expense of one of the parties. See Vaugh. 153. In Plowd. 518, a case is mentioned of a juror, who was fined twenty shillings for having sugar candy, &c. found upon him. So, they are fineable, if they are unlawfully dealt with. 1 Dyer, 55. pl. 8. And a juror who has been challenged and taken from the pannel, is punishable for speaking with the rest after departure from the bar. 2 Ro. 85.

See

But, juries are left entirely free from any other motives to agree upon their verdicts, than those of reason and conscience, and a regard for truth and justice. Where there is no probability that they will agree, it would be an act of oppression to keep them together an unreasonable time. And there is no reason to do it in modern times; since it seems to be quite settled, that even in a capital case, if the jury cannot agree, they may be discharged, and the proceedings may be repeated before another jury, toties quoties, until a jury can be found who will agree in their verdict.

It ought not to be dissembled, however, that doubts have been entertained, whether in general the merit of this popular

mode of trial is not greatly overrated. On this account it was intended to notice some of the exceptions, to which it seems most exposed. But, as this chapter has already overrun its assigned limits, it must suffice merely to allude to some of the more prominent ones, and to submit them without comment to the intelligence of the reader.

1. It has been thought incongruous, that though juries have no adequate knowledge of the law independent of the charge of the court, yet they may, if they please, decide directly contrary to it; and thus, while they have not discernment enough to do right, they are entrusted with a power to do wrong.

2. Where damages are certain, all juries must decide alike; when they are uncertain, no two juries would give the same verdict.

3. In cases, where questions of party politics have been brought up, it has frequently been found, that the jury has divided in opinion according to the politics of the jurors.

4. In cases where local interests, or popular prejudices or feelings, are concerned, a stranger, or one who is not of the tribe or clan, must rest satisfied with very meagre justice.

5. Juries are affected by circumstances of pomp, display, plausibility, vain glory; and are influenced by eloquence, authority and reputation, as much as by considerations of truth, and justice. It is easier to persuade them, by an appeal to their sympathy, than to convince them by argument.

6. They are usually more merciful than judges, though not always; but not so just. Yet the jury decides whether a crime has been committed or not, which would seem to require the most exact justice; while the judge frequently determines the amount of punishment, which would seem to afford an opportunity for the exercise of mercy.

Whatever may be thought of these exceptions, it is clear that the value of the trial by jury, must always depend upon the degree of virtue and intelligence prevalent among those citizens, from whom juries are selected.

CHAPTER VI.

Of the Rights of Witnesses.

As society is organized for the protection of the persons, and the security of the property and rights of its members, each individual may be considered as undertaking on his part, to conform to all the regulations, which the government may think it expedient to introduce, for the more readily obtaining of those important objects.

Among these regulations may usually be found one, which gives every individual a right to call on others to give testimony, in any cause which may arise before the tribunals of justice, in which his rights are concerned.

This right of calling on witnesses, is one of the greatest importance; because, without it, no man would be able to obtain redress by law, for any injuries which might be offered to him, for want of evidence; unless he was so fortunate as to find volunteers, who would step forward of their own good will to give testimony in his favor. The law therefore provides a process, by which a party in any cause may compel the attendance of witnesses, so far as may be thought necessary to secure their testimony. But, as it would be unreasonable to compel a witness to neglect his own affairs, and to be at the expense and trouble of going from his place of residence, and living at board during his attendance on the court, provision is made by the law for the indemnity of the witness in all these respects.

A witness therefore is under no obligation to attend court at all, unless he is summoned by a regular subpoena, stating the cause in which his testimony is wanted, and served by a regular officer, and also has sufficient money tendered him to defray his charges, or, at any rate, such allowance as is provided by the statute law, whether such allowance is more or less. If such a sum is tendered him, he will be obliged to attend so many days as it is a legal allowance for, unless he is sooner