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 Origin and Growth of Rights of Accused. ing the witchcraft troubles in Massachusetts, one man died under this treatment rather than demand a jury. Even after the jury had become the es tablished means of trying causes, the procedure in the courts had few points in common with the jury trial of to-day. It consisted largely of an argument between counsel for the prosecution and the prisoner; the latter, usually untrained in the ways of courts and lawyers and at the mercy of coun sel, time-serving judge and subservient jury, was at a decided disadvantage in the contest. Each point was argued as it arose, the course of the testimony depending largely upon the admissions and denials of the accused. The testimony for the prosecution was given al most entirely by means of ex parte confes sions taken without the consent or knowledge of the accused. When the testimony was closed the judge summed up the case, and, with the verdict of the jury, the trial was over. As the verdict of the jury was considered the expression of the all-wise Creator as to the guilt or innocence of the accused, there was no provision for an appeal. But sooner or later the old jurists seemed to have lost faith in the divine inspiration of juries, for we find creeping into the judicial system a provision for the trial or attainder of any jury that had apparently failed to render a just verdict. The forerunner of our court of appeals is this jury of twenty-four men called to try the twelve who had rendered a false verdict. This attainder of the trial jury was long in use both in England and in this country, in Georgia, for example, even to the time of the American Revolution. The early barbaric trial was based on the idea of divine intercession on behalf of the innocent who happened to be accused of crime. If a man be innocent, fire would not burn nor boiling water scald his flesh— such was the belief of the early judicial mind. When these old modes of trial had been left behind, and something that foretold

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of the modern trial had come in their place, this old idea that some invisible power would protect the innocent still prevailed. While the prosecution had counsel to conduct and witnesses to establish its case, the accused was left without the aid of counsel, for, to quote the reasoning of the time, " If inno cent, he need not have counsel, if guilty, he ought not." It was argued that the accused did not need witnesses or the means of pro curing evidence in his own behalf, for, " In order to convict, the proof must be so plain that no one would contend against it." To understand the attitude of those who argued in this way, we must remember that the jury came simply to replace the ordeal. Like the ordeal, the jury was considered a method of appealing to Deity, who, being all-powerful, would certainly protect the in nocent. If the Creator watched over the rights of the accused, it seemed to these men of olden time that it would be vain indeed to procure counsel and witnesses for him. The scandals connected with the adminis tration of the criminal law had become so marked that, with the coming of the Puritan Revolution, radical changes were made in criminal procedure. Chief among these was the right of calling witnesses on behalf of the accused and the right to cross-examine wit nesses called by the prosecution. But the accused was still at great disadvantage. He was not allowed the assistance of counsel; there was little protection against perjury on the part of opposing witnesses'; he was con fined in prison up to the time of the trial and had little or no opportunity to secure his wit nesses or prepare his defense. As a matter of clemency toward the ac cused, he and his witnesses were not sworn because it was said that, if they were not bound by an oath, they would " speak more largely and beneficially for the accused." The jury, however, were cautioned not to give too much weight to testimony not taken under oath. Much evidence was introduced