Blackwood's Edinburgh Magazine — Volume 55, No. 339, January, 1844

This proceeding is wholly ex parte. As the informal statement of the crime brought the supposed criminal to answer before the inferior tribunal, so does the formal accusation call upon him to answer before the superior court. The preliminary proceedings being now complete, and every step having been taken which is necessary to put the accused upon his trial, the ex parte character of the proceedings is at an end. The time approaches when the accused must again be brought face to face with his accusers; and when, if he has been admitted to bail, his sureties must deliver him up to the proper authorities, or their bond is forfeited; in which case, a bench warrant for the apprehension of the delinquent may issue; and if he cannot still be found, he may be pursued to outlawry. It may be here mentioned, that the proceedings may be, at any period, removed from any inferior court into the Queen's Bench, by what is called a writ of certiorari. When the offender appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is to be immediately arraigned. The arraignment is simply the calling upon the accused, at the bar of the court, to answer the matter charged upon him in the indictment, the substantial parts, at least, of which are then read over to him. This is indispensable, in order that he may fully understand the charge. So voluminous are the counts of the indictment recently found against Mr O'Connell and others, that the reading of the charges they contained was the work of many hours. The accused is not always compelled immediately to answer the indictment; for if he appear in term-time to an indictment for a misdemeanour in the Queen's Bench, it is sufficient if he plead or demur within four days; the court has a discretionary power to enlarge the time; but if he neither pleads nor demurs within the time prescribed, judgment may be entered against him as for want of a plea. It he appear to such an indictment, having been committed or held to bail within twenty days before the assizes or sessions at which he is called upon to answer, he has the option of traversing, as it is termed, or of postponing his trial to the next assizes or sessions. He is also always entitled, before the trial, on payment of a trifling charge, to have copies of the examinations of the witnesses on whose evidence he was committed or held to bail; and at the trial he has a right to inspect the originals gratuitously. In prosecutions for misdemeanours at the suit of the Attorney-General, a copy of indictment must be delivered, free of expense, if demanded by the accused. These seem to be all the privileges except that of challenge, which we shall explain hereafter, which the accused possesses, or to which the law gives him an absolute indefeasible claim as a matter of right. The practice of different courts may possibly vary in some degree on points such as those which have been recently mooted in Ireland; for instance, as to whether the names of the witnesses should be furnished to the accused, and whether their address and description should also be supplied. In such matters the practice might vary, in a considerable degree, in the superior courts of England and Ireland; and yet each course would be strictly legal, in the respective courts in which it was adopted; for, as it was clearly put by one of the Irish judges on a recent occasion, the practice of the court is the law of the court, and the law of the court is the law of the land.

When the time has arrived at which the accused must put in his answer to the indictment, if he do not confess the charge, or stand mute of malice, he may either plead, 1st, to the jurisdiction, which is a good plea when the court before whom the indictment is taken has no cognizance of the offence, as when a case of treason is prosecuted at the quarter sessions; or, 2dly, he may demur, by which he says, that, assuming that he has done every thing which the indictment lays to his charge, he has, nevertheless, been guilty of no crime, and is in nowise liable to punishment for the act there charged. A demurrer has been termed an issue in law—the question to be determined being, what construction the law puts upon admitted facts. If the question of law be adjudged in favour of the accused, it is attended with the same results as an acquittal in fact, except that he may be indicted afresh for the same offence; but if the question be determined against the prisoner, the law, in its tenderness, will not allow him, at least in cases of felony, to be punished for his misapprehension of the law, or for his mistake in the conduct of his pleadings, but will, in such case, permit him to plead over to the indictment—that is, to plead not guilty; the consequences of which plea we will consider hereafter.

A third alternative is a plea of abatement, which is a plea praying that the indictment may be quashed, for some defect which the plea points out. This plea, though it was recently, made use of by the defendants in the case now pending in Ireland, is of very rare occurrence in ordinary practice—a recent statute having entirely superseded every advantage formerly to be derived from this plea, in cases of a misnomer, or a wrong name, and of a false addition or a wrong description of the defendant's rank and condition, which were the principal occasions on which it was resorted to.

The next alternative which the prisoners may adopt, is a special plea in bar. These pleas are of four kinds: 1. a former acquittal; 2. a former conviction; 3. a former attainder; 4. a former pardon, for the same offence. The first two of these pleas are founded on the maxim of the law of England, that no man is to be twice put in jeopardy for the same offence. A man is attainted of felony, only by judgment of death, or by outlawry; for by such judgment, the prisoner being already dead in law, and having forfeited all his property, there remains no further punishment to be awarded; and, therefore, any further proceeding would be superfluous. This plea has, however, been practically put an end to by a recent statute. A plea of pardon, is the converse of a plea of attainder; for a pardon at once destroys the end and purpose of the indictment, by remitting that punishment which the prosecution was calculated to inflict.

All these pleas may be answered by the crown in two ways—issue may be joined on the facts they respectively set forth; or they may be demurred to; by which step, the facts, alleged in the plea, are denied to constitute a good and valid defence in law. In felony, if any of these pleas are, either in fact or in law, determined against the prisoner, he cannot be convicted or concluded by the adverse judgment; and for this reason. Formerly all felonies were punishable with death, and, in the words of Mr Justice Blackstone, "the law allows many pleas by which a prisoner may escape death; but only one plea in consequence whereof it can be inflicted, viz., the general issue, after an impartial examination and decision of the facts, by the unanimous verdict of a jury." The prisoner, therefore, although few felonies remain still capital, is nevertheless still allowed to plead over as before. In misdemeanours, however, which are never capital, and in which, therefore, no such principle could ever have applied, the judgment on these pleas appears to follow the analogy of a civil action. Thus, if, upon issue joined, a plea of abatement be found against the accused, the judgment, on that indictment, is final; though a second indictment may be preferred against him; but if, upon demurrer, the question of law is held to be against him, the judgment is, that he do answer the indictment. If a plea in bar, either on issue joined, or on demurrer, be determined against the defendant, the judgment is in such case final, and he stands convicted of the misdemeanour.

The general issue, or the plea of "not guilty," is the last and most usual of those answers to the indictment which we have enumerated, the others being all of extremely rare occurrence in the modern practice of the criminal law. By this plea, the accused puts himself upon his county, which county the jury are. The sheriff of the county must then return a panel of jurors. In England the jurors are taken from the "jurors' book" of the current year. It must be observed, that a new jurors' book comes into operation on the first of January in each year, having previously been copied from the lists of those liable to serve on juries, made out in the first instance, between the months of July and October, both inclusive, by the churchwardens and overseers of each parish, then reviewed and confirmed by the justices of the peace in petty sessions, and, through the high constable of the district, delivered to the next quarter sessions. If the proceedings are before the Queen's Bench, an interval is allowed by the court, in fixing the time of trial, for the impanneling of the jury, upon a writ issued to the sheriff for that purpose. The trial in a case of misdemeanour in the Queen's Bench is had at nisi prius, unless it be of such consequence as to merit a trial at bar, which is invariably had when the prisoner is tried for any capital offence in that court. But before the ordinary courts of assize, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of not less than forty-eight nor more than seventy-two persons, unless the judges of assize direct a greater or smaller number to be summoned. When the time for the trial has arrived, and the case is called on, jurors, to the number of twelve, are sworn, unless challenged as they appear; their names being generally taken promiscuously, one by one, out of a box containing a number of tickets, on each of which a juror's name is inserted. Challenges may be made, either on the part of the crown or on that of the accused, and either to the whole array or to the separate polls. The challenge to the array, which must be made in writing, is an exception to the whole panel, on account of some partiality or default in the sheriff, or his officer, who arrayed the panel, the ground of which is examined into before the court. Challenges to the polls—in capita—are exceptions to particular persons, and must be made in each instance, as the person comes to the box to be sworn, and before he is sworn; for when the oath is once taken the challenge is too late.

Sir Edward Coke reduces the heads of challenge to four. 1st, propter honoris respectum; as if a lord of Parliament be impannelled. 2d, propter defectum; as if a juryman be an alien born, or be in other respects generally objectionable. 3d, propter affectum; for suspicion of bias or partiality: and 4th, propter delictum; or, for some crime that affects the juror's credit, and renders him infamous; In treason and felony, the prisoner is allowed the privilege of a limited number of peremptory challenges; after which, as in misdemeanours, there is no limit to the number of challenges, if the party shows some cause for each challenge to the court. This cause is tried by persons appointed for that purpose by the court, when no jurymen have been sworn; but when two jurymen have been sworn, they are the parties who must adjudicate upon the qualifications of those who are afterwards challenged, who, except when the challenge is propter delictum, may be themselves examined upon oath. The crown, also, we have seen, can exercise this privilege, but with this difference, that no cause for challenge need be shown by the crown, either in felonies or misdemeanours, till the panel is exhausted, and unless there cannot be a full jury without the persons so challenged.

When twelve men have been found, they are sworn to give a true verdict "according to the evidence," and the jury are then ready to hear the merits of the case. To fix their attention the closer to the facts which they are impannelled and sworn to try, the indictment, in cases of importance, is usually opened by the junior counsel for the crown—a proceeding, by which they are briefly informed of the charge which is brought against the accused. The leading counsel for the crown then lays the facts of the case before the jury, in a plain unvarnished statement; no appeal is made to the passions or prejudices of the twelve men, who are to pronounce upon the guilt or innocence of the accused; but every topic, every observation, which might warp their judgment, or direct their attention from the simple facts which are about to be proved before them, is anxiously deprecated and avoided by the counsel for the prosecution. The witnesses for the crown are called one by one, sworn, examined, and cross-examined by the accused, or his counsel. When the case for the crown has been brought to a close, the defence commences, and the counsel for the defendant addresses the jury. It is the duty of the advocate, on such an occasion, to put forth all his powers in behalf of his client; to obtain acquittal is his object: he must sift the hostile evidence, he must apply every possible test to the accuracy of the testimony, and to the credibility of the witnesses; he may address himself to the reason, to the prejudices, to the sympathies, nay, even to the worst passions of the twelve men whose opinions he seeks to influence in favour of his client. He may proceed to call witnesses to disprove the facts adduced on the other side, or to show that the character of the accused stands too high for even a suspicion of the alleged clime; he has the utmost liberty of speech and action He may indefinitely protract the proceedings, and there seems to be scarcely any limit, in point of law, beyond which the ultimate event of the trial may not be, by these means, deferred. Whenever the defence closes, in those cases in which the government is the real prosecutor, the representative of the crown has the general reply; at the close of which the presiding judge sums up the evidence to the jury, and informs them of the legal bearing of the facts, on the effect and existence of which the jury has to decide. This having been accomplished, it becomes the duty of the jury to deliberate, decide, and pronounce their verdict. If the verdict be "Not guilty," the accused is for ever quit and discharged of the accusation; but if the jury pronounce him guilty, he stands convicted of the crime which has been thus charged and proved against him, and awaits the judgment of the court. In felonies and ordinary misdemeanours, judgment is generally pronounced immediately upon, or soon after, the delivery of the verdict; in other cases, when the trial has been had before the Queen's Bench, the judgment may, in England, be pronounced either immediately or during the ensuing term. But whenever this event occurs, the prisoner has still one chance more for escape: he can move an arrest of judgment, on the grounds either that the indictment is substantially defective, or that he has already been pardoned or punished for the same offense. These objections, if successful, will, even at this late stage of the proceedings, save the defendant from the consequences of his crime. But if these last resources fail, the court must give the judgment, or pronounce the measure of that punishment, which the law annexes to the crime of which the prisoner has been convicted.

By the law of this country, the species of punishment for every offence is always ascertained; but, between certain defined limits, the measure and degree of that punishment is, with very few exceptions, left to the discretion of the presiding judge. Treasons and some felonies are, indeed, capital: but, in the mercy of modern times, the great majority of felonies, and all misdemeanours, are visited, some with various terms of transportation or imprisonment, which, in most cases, may be with or without hard labour, at the discretion of the court. In these cases, the punishment is prescribed by the statute law; but there are some misdemeanours the punishment of which has not been interfered with by any statute, and to which, therefore, the common law punishments are still attached. The case of Mr O'Connell, which is now in abeyance, seems to range itself under this head of misdemeanours. Such cases are punishable by fine or imprisonment, or by both; but the amount of the one, or the duration of the other, is each left at large to be estimated by the court, according to the more or less aggravated nature of the offence, and, as it is said, also according to the quality and condition of the parties. That a fine should, in all cases, be reasonable, has been declared by Magna Charta; and the Bill of Rights has also provided, that excessive fine, or cruel and unusual punishments, should not be inflicted; but what may or may not be unreasonable or excessive, cruel or unusual, is left entirely to the judgment of the executive.

For crimes of a dark political hue, which, by their tendency to subvert the government or destroy the institutions of the country, necessarily assume a character highly dangerous to the safety and well-being of the state, it might be difficult to say what degree of punishment would be excessive or unusual. It seems probable, that in cases of this nature, which include crimes, so varied in their circumstances that there appears no limit to the degree of guilt incurred—crimes, the nature and character of which could not possibly be foreseen or provided for, in all their infinite multiplicity of detail; it seems probable that, in such cases, a large discretion may have been purposely left by the framers of our constitution, in order that the degree of guilt, on each occasion, should be measured by an expansive self-adjusting scale of punishment, applied, indeed, and administered by the judges of the land, but regulated and adjusted, in each succeeding age, by the influence of public opinion, and by the spirit and temper of the times.

Even at this latest stage of criminal prosecution, in the interval which must necessarily elapse between the pronouncing and the infliction of the sentence, the convicted delinquent is not without a remedy for any wrong he may sustain in the act which terminates the proceedings. If any judgement not warranted by law be given by the court, it may be reversed upon a writ of error, which lies from all inferior criminal jurisdictions to the Queen's Bench, and from the Queen's Bench to the House of Peers. These writs, however, in cases of misdemeanour, are not allowed, of course, but on probable cause shown to the Attorney General; and then they are understood to be grantable of common right, and ex debito justitiæ. The crown, if every other resource has failed the prisoner, has always the power of exercising the most amiable of its prerogatives. Though the sovereign herself condemns no man, "the great operation of her sceptre is mercy," and the chief magistrate, in the words of Sir William Blackstone, "holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment," is ever at liberty to grant a free, unconditional, and gracious pardon to the injured or repentant convict.

We have now rapidly traced the progress of a criminal prosecution from its commencement to its close, and we have given a summary of the ordinary proceedings on such occasions. Although it may be possible that the practice of the courts in Ireland on minor points, should occasionally differ in some degree from the practice of the English Courts, we may, nevertheless, have rendered the proceedings now pending in the sister isle, more intelligible to the general reader, who may now, perhaps, be enabled to see the bearing, and understand the importance of many struggles, which, to the unlearned, might probably appear to be wholly beside the real question now at issue between the crown and Mr O'Connell. Whatever be the result of that prosecution, whether those indicted be found guilty, or acquitted, of the misdemeanours laid to their charge; we feel assured, on the one hand, however long and grievous may have been the "provocation," that while there will be "nothing extenuate," neither will there be "set down aught in malice;" but that the measure of the retribution now demanded by the state, will be so temperately and equitably adjusted, that while the very semblance of oppression is carefully avoided, the majesty of the law, and the powers of the executive, will be amply and entirely vindicated. On the other hand, if Mr O'Connell, and his companions, in guilt or misfortune, should break through the cobwebs of the law, and hurl a retrospective defiance at the Government; we feel the utmost confidence, that the learning, foresight, and ability, of the eminent lawyers who represent the crown, together with the firmness and integrity of the Irish bench, "sans peur et sans reproche," will demonstrate to the millions who look on, that the constitutional powers of the state still remain uninjured and unimpaired in all their pristine and legitimate energy and vigour; and that neither in the machinery now set in motion, nor with those who conduct or superintend its action, but with others on whom, in the course of these proceedings, will be thrown the execution of a grave and all-important duty, must rest the real blame, if blame there be, of the failure of this "State Prosecution."

ADVENTURES IN TEXAS.

No. III.

THE STRUGGLE

I had been but three or four months in Texas, when, in consequence of the oppressive conduct of the Mexican military authorities, symptoms of discontent showed themselves, and several skirmishes occurred between the American settlers and the soldiery. The two small forts of Velasco and Nacogdoches were taken by the former, and their garrisons and a couple of field-officers made prisoners; soon after which, however, the quarrel was made up by the intervention of Colonel Austin on the part of Texas, and Colonel Mejia on the part of the Mexican authorities.

But in the year '33 occurred Santa Anna's defection from the liberal party, and the imprisonment of Stephen F. Austin, the Texian representative in the Mexican congress, by the vice-president, Gomez Farias. This was followed by Texas adopting the constitution of 1824, and declaring itself an independent state of the Mexican republic. Finally, towards the close of 1835 Texas threw off the Mexican yoke altogether, voted itself a free and sovereign republic, and prepared to defend by arms its newly asserted liberty.

The first step to be taken was, to secure our communications with the United States by getting possession of the sea-ports. General Cos had occupied Galveston harbour, and built and garrisoned a block-fort, nominally for the purpose of enforcing the customs laws, but in reality with a view to cut off our communications with New Orleans and the States. This fort it was necessary to get possession of, and my friend Fanning and myself were appointed to that duty by the Alcalde, who had taken a prominent part in all that had occurred.

Our whole force and equipment wherewith to accomplish this enterprise, consisted in a sealed despatch, to be opened at the town of Columbia, and a half-breed, named Agostino, who acted as our guide. On reaching Columbia, we called together the principal inhabitants of the place, and of the neighbouring towns of Bolivar and Marion, unsealed the letter in their presence, and six hours afterwards the forces therein specified were assembled, and we were on our march towards Galveston. The next day the fort was taken, and the garrison made prisoners, without our losing a single man.

We sent off our guide to the government at San Felipe with news of our success. In nine days he returned, bringing us the thanks of congress, and fresh orders. We were to leave a garrison in the fort, and then ascend Trinity river, and march towards San Antonio de Bexar. This route was all the more agreeable to Fanning and myself, as it would bring us into the immediate vicinity of the haciendas, or estates, of which we had some time previously obtained a grant from the Texian government; and we did not doubt that we were indebted to our friend the Alcalde for the orders which thus conciliated our private convenience with our public duty.

As we marched along we found the whole country in commotion, the settlers all arming, and hastening to the distant place of rendezvous. We arrived at Trinity river one afternoon, and immediately sent messengers for forty miles in all directions to summon the inhabitants. At the period in question, the plantations in that part of the country were very few and far between, but nevertheless by the afternoon of the next day we had got together four-and-thirty men, mounted on mustangs, each equipped with rifle and bowie-knife, powder-horn and bullet-bag, and furnished with provisions for several days. With these we started for San Antonio de Bexar, a march of two hundred and fifty miles, through trackless prairies intersected with rivers and streams, which, although not quite so big as the Mississippi or Potomac, were yet deep and wide enough to have offered serious impediment to regular armies. But to Texian farmers and backwoodsmen, they were trifling obstacles. Those we could not wade through we swam over; and in due time, and without any incident worthy of note, reached the appointed place of rendezvous, which was on the river Salado, about fifteen miles from San Antonio, the principal city of the province. This latter place it was intended to attack—an enterprise of some boldness and risk, considering that the town was protected by a strong fort, amply provided with heavy artillery, and had a garrison of nearly three thousand men, commanded by officers who had, for the most part, distinguished themselves in the revolutionary wars against the Spaniards. Our whole army, which we found encamped on the Salado, under the command of General Austin, did not exceed eight hundred men.