Page:Harvard Law Review Volume 5.djvu/394

378 378 HARVARD LA W RE VIE W. all criminal cases. Always scope was allowed to the sentiment that there should be mercy and caution in such cases. We read in a report of 1302 (Y. B. 30 and 31 Edw. I. 538,) Et hoc nota qaod melius est nocentem relinquere impunitum qaam* innocentem piinire; 1 and so Fortescue {De Laudibus, c. 27): "Truly I would rather that twenty guilty men should escape through pity than that one just man should be unjustly condemned ;" in this chapter he celebrates the felicity of the English in having so many safeguards against injustice in criminal trials. But even in England the King, in criminal cases, was no mere ordinary party to an action ; the procedure was heavily weighted in his favor. In treason and felony the accused could not have counsel ; later* when witnesses could be had for the King, he could not have them ; and still later, when he also could have them, his witnesses could not be sworn; The King, therefore, had small need of the attaint in criminal cases ; and the doctrine was ancient that one should not be twice put in jeopardy for the same offence. How then were juries kept in check in such cases ? Prob- ably the influence of the crown was sufficiently strong to prevent much injustice as against the prosecution. On the other side, the natural sympathy of the jury with accused persons, and the operation of humane maxims and sentiments, secured a tolerable fairness. And, no doubt, the judges disciplined the jury in one way or another. An early instance of this, in 1302, is found in Y. B. 30 and 31 Edw. I. 522. One was indicted for homicide and proved that he had been previously acquitted of the same death ; it was found by the rolls that it was as he said, and that he had the King's writ de bono et malo. It was adjudged that he should go quit, and that five of the [indicting] inquest should go to prison as " attainted," and that the viscount should take their lands and chattels into the King's hands. Berewyk, J., goes on to make some remarks which appear to mean (the text seems corrupt) that while these men cannot be attained {i.e., convicted) by a jury of twenty-four, yet they are attained out of their own mouths, for they were on the inquest which formerly acquitted this man of the death, and now on a jury which accuses him of it. It is added by the reporter that the justices were the harder on them because they couldn't suggest any one else as guilty. So, in 1329 (Fitz. Cor. 28y), a jury was amerced for undervaluing certain goods. 1 From the Digest, 48, 19, 5 : Divus Traianus . . . rescripsit, satius enitn esit im- punitum relinqui, etc.