be his security and defence against any injurious treatment. It cannot be pretended that this is altogether impracticable; experience shows us, how effectually it may be done, when the officers find an advantage by it; nor would there be any harm in it, if the officers were obliged by proper penalties to take the same care without money, which they are so well able to do with it.

7. Another thing in which our Law seems defective is the want of some further guard against the Packing of JURIES, and the Oppressions and Extortions of GAOLERS; but these are now under the consideration of On Gaolers, the legislature, who, it is hoped, will apply proper Remedies to these growing evils (o). As to the latter of these, 1 fear no Remedy will be effectual while they are suffer'd to buy and sell their places; for while that is permitted, they will be under stronger temptations than men of their character and function usually resist, to exact more than is their due; the thing itself has an appearance of hardship, to force a man into gaol against his will, and yet oblige him to pay for his admission into it: if he be guilty, the punishment of the law should be deem'd sufficient; but if innocent, the hardship is still the greater, especially where it falls upon the indi- and their gent and necessitous. It is chiefly owing to this that our Gaols swarm Fees. with multitudes of miserable objects, who lie there year after year without any hope of redemption; so that when they have suffer'd the penalty of the law, they have a severer punishment still to undergo for the non-payment of Fees (p), a debt which is forc'd upon them against their consent, and is often out of their power ever to discharge, whereby the poor wretches are in effect condemned to perpetual imprisonment; a thing very odious in the eye of the law, even for great and heinous crimes. How much better would it be for the public to allow the Gaoler a reasonable salary, instead of these perquisites, which arise from the miseries of the unfortunate, who are thereby often necessitated to take dishonest and unlawful methods to enable themselves to pay them? By the common Law (q), to avoid all extortion and grievance of the subject, no sheriff, coroner, gaoler or other of the king's ministers ought to take any fee or reward for any matter touching their offices, but of the king only. This extended to all whose offices did any ways concern the administration or execution of justice, or the common good of the subject, or the king's service (r).-Fortescue (s) relates it as part of the Sheriff's Oath upon entering into his office, "That he shall receive or take nothing of any other man than the king by colour or means of his office." Divers acts of parliament (1) have been made in affirmance of this, which Lord Coke (u) calls “ a fundamental Maxim of the Common Law;" he adds further," that while Officers could take no Fee at all for doing their office, but of the king, then had they no colour to exact any thing of the subject, who knew that they ought to take nothing of them; but after this rule of the Common Law was alter'd by some acts of parliament, which gave to the said ministers of the king Fees in some particular cases to be taken of the subject, it is not credible what Extortions and Oppressions have thereupon ensued; whereas before without any taking at all their office was done, now no office at all was done without taking, the Officers being fetter'd with golden Fees, as fetters to the suppression or subversion of Justice" (x)..

(0) Both these Grievances have been since remedied in some measure, the former by the 3 Geo. 2. cap. 25. and the latter by 2 Geo. 2. cap. 22. (P) Mirror of Justices, c. 5. § 1. n. 53. says, It is an Abuse that Prisoners, or any for them, should pay any thing for their entrance into or coming out of Gaol. (9) See 2 Co. Inst. 74. and the Authorities there cited. (r) 2 Co. Inst. 209. (s) De laud. Leg. Angl. cap. 24. (1) Mag. Chart. cap. 35. West. 1. cap. 10.

and

cap. 26.

(u) 2 Instit. 210.

(*) 2 Instit. 74 & 176.

While Prisoners are thus long detained, the true design of Gaol-Deliveries can never be answer'd: This is a Commission, says lord Coke (y), instituted by the law of the land, ne homines diu detineantur in prisona, but that they might receive plenam et celerem justitiam: he adds, that Gaols ought to be delivered thrice a year, or oftner, if need be. Of so much consequence does the law esteem it to be, that the Abbot of St. Albans (2) who had a grant of a Gaol and Gaol-delivery, was adjudged to have forfeited his franchise for an unreasonable delay in making Delivery of his Gaol. But what are the Prisoners benefited by Gaol-deliveries, if after the law has done with them, they may still be detained for Fees, which they will never be able to pay?-Another design of Gaol-deliveries was by clearing the Prisons to make room for new comers; but the Discharge of the old Prisoners being by these means prevented, the continual addition of new ones renders the croud so great, that the place becomes too strait for its inhabitants: this, together with the filth and nastiness occasion'd by their miserable poverty and want of conveniencies, is the cause of those contagious distempers which are wont so violently to rage in many of our prisons, not confining themselves within the prison-walls, but sometimes spreading their infection in the very court where the prisoners are brought to Trial, to the ho small hazard of judges, juries, counsel, and all who attend there. A dreadful instance of this is recorded in History (a) to have happen'd in the twentieth year of queen Elizabeth at Oxford assizes, when the Prisoners brought such a stench with them into court, that the Lord Chief Baron Bell, the Sheriff, several Counsel, almost all the jurors, and near three hundred others, died within the space of forty hours after it. I could wish our own times had not furnished us with a fresher instance of this kind.

A further Mischief arising from this long Detention of Prisoners is, that it defeats the principal end of all law and justice. All Punishments below capital are intended to reform the criminal, and deter him from offending again: but as our Gaols are commonly managed, it is to be fear'd, they breed up and harden more rogues, than the law either reclaims or removes. The prisoners are indulged so great a liberty in rioting and debauchery, which the keepers, who have the advantage arising from the sale of the liquors, find their account in promoting; the young novices are permitted to contract so intimate an acquaintance and familiarity with the old offenders, that our Gaols are rather the schools and nurseries of all manner of roguery and wickedness, than proper places for correction and amendment. It is generally observed, that they who enter in raw and unexperienc'd offenders, with some sense of shame and modesty, soon grow to be impudent and harden'd villains, entering themselves members of a gang, wherein they are not only instructed in the theory, but experienc'd in the practice of their wicked arts. This may seem strange to some, who think they are restrained, (at least while they are prisoners) from doing mischief without doors; yet it is not without reason apprehended by others, that they sometimes find means to make excursions, which is hard to be accounted for without the connivance or permission of their keepers, who no doubt take care to be no losers by it and though this may be a favour not usually shown to any but inferior rogues, who are detained for smaller crimes; yet I could mention an instance (attested by a person of undoubted credit) of one who was committed to Newgate for breaking open an house in the night-time, and while he was in suppos'd custody for that offence, was apprehended committing a fact of the like kind in a remote part of the town.

(y) 4 Instit. p. 168. () 2 Co. Instit. 43. p. 353.

4

(a) See Baker's Chronicle,

Another matter of complaint is, that intolerable and inhuman practice The Use of of many Gaolers, who to extort from their unhappy guests such sums as Chains and they shall think fit to exact, thrust them as soon as they arrive within Fetters in Gaols. their dominions, into stinking dungeons, loading them with Fetters and Irons till they can bring them to a compliance with their unjust demands (b): the pretence indeed is, that they are answerable for their prisoners, and therefore ought to be allowed the use of proper means to secure them. That this is nothing but pretence is sufficiently plain, money being generally able to procure a release from these shackles, which do then become no longer necessary for the safeguard of the Prisoner, having already answered their real design. Though Gaolers are indeed answerable for their Prisoners, yet neither the law of England nor common humanity esteems such means as proper in ordinary cases; Seceros quidem facit justitia, inhumanos non facit (c): they may make their Prisons as strong as they can, may set what guards and keepers they will to watch them, but must use no force or violence to their persons, no tortures or pains, while the Prisoners quietly submit themselves to the process of the law; Carcer ad continendos homines, non ad puniendos haberi debet (d). Prisons are designed only for the custody of the Prisoners, not for their punishment, unless when it becomes part of the Sentence; and even then it is no otherwise intended as a punishment, than by way of confinement to the prison, not as a justification of any ill usage in it. Custodes gaolarum panam sibi commissis non augeant, nec eos torqueant, vel redimant, sed omni sævitiâ remotâ pietateque adhibitâ judicia debitè tur (e). If a prisoner is boisterous and unruly, or makes any attempt to escape, or perhaps if he only threatens to do so; in such case it may be allowable to use a stricter discipline. Lord Chief Justice Coke says (f), "That Shackles about the feet ought not to be, but for fear of escape.' If these words have any meaning, they must import, that unless a prisoner has given just cause to apprehend an Escape, he ought not to be fettered: otherwise it may be pretended of all prisoners, let them behave never so peaceably and civilly, who will by these means lie at the mercy of gaolers, whose very mercies often are cruelties (g). The same Author says in another place ( 4 ), “ Where the law requireth, that the Prisoner should be kept in salva et arcta custodia, yet that must be without pain or torment to the Prisoner," which Chains and Fetters undoubtedly are. And again in his Comment (i) on the Statute of Westm. 2. cap. 11. by which Statute the Gaoler is permitted in a particular case there mentioned to lay his prisoner in irons, he makes this observation, "That by the Common law it might not be done." There is one great absurdity in this practice, that by these means the prisoner often suffers more before he is tried, than the law inflicts on him when he is found guilty; but yet I know not how it comes to pass, it is too generally and too notoriously practised to be either conceal'd or deny'd. This method of proceeding is resembled by lord Coke ( k ) to that of Rhadamanthus the Judge of Hell, who first punisheth and then heareth; like as the chief Captain did by St. Paul (1), first ordering him to be bound with chains, and then demanding of him who he was, and what he had done.

exequan

(b) See the Reports of the Committee of the House of Commons appointed to inquire into the State of the Gaols, 1728-9, relating to the Fleet and Marshalsea Prisons. (c) 2 Co. Instit. 315.

(e) Fleta, lib. 1. cap. 26.

(d) Digest. lib. 48. tit. 19. de pœnis, 1. 8. § 9. Bract. 1. 3. fol. 105. a. 2 Co. Instit. 43. (f) 3 Instit. p. 34. (g) 'Tis on this presumption of Gaolers ill-treating their Prisoners, that whenever any die in Prison, the law requires the Coroner should sit on their bodies, to inquire into the manner of their death, before they can be buried. Flet. lib. 1. cap. 26. (h) 3 Co. Instit. 35. (i) 2 Instit. p. 381. (k) 2 Instit. 55. (1) Acts, cap. 21. ver. 33.

And on the
Voluminous-
ness of the
Laws.

An Account of this Edition.

8. There is one thing more which ought not to be wholly passed over, and that is, the Multiplicity and Voluminousness of our Laws: If what lies scattered in so many various (some obsolete) Acts, were (so much of them as should be judged fit to be continued) collected under their several Heads into so many distinct acts, the law would be much more plain and easy; whereas now, considering the variety of subjects, which are often thrown together into one act, and the various acts relating to one and the same subject, it is no easy matter to find out the whole relating to one particular head; and when it is found, many difficulties arise from the clashings and inconsistencies of the several acts, the old ones not being always sufficiently consulted when the new ones are made; so that it is to be wished we may never feel the inconvenience which Tacitus (m) complains of in his time, Antehac flagitiis laborabatur, nunc legibus.

I thought these short Observations upon the Laws of England, so far as they relate to public Crimes and the incidents thereto, would not be altogether unsuitable to a Work, consisting chiefly of the Histories of Criminal Prosecutions.

The Conclusion naturally resulting from the whole is, That as our Laws have many Excellencies and Advantages which we have just reason to value them for, so they have also their defects and blemishes: such a blind veneration for them, as will not allow this, does not only suppose a perfection which all human contrivances are incapable of, but is the greatest obstruction to all attempts for an amendment: that some things need to be mended, no experienc'd lawyer can deny; and that they should be so, every honest one will heartily desire.

Whether the Particulars here mentioned be of that number, is submitted to the judgment of all true lovers of their country, who it is hoped will be so far from being offended hereat, that they will use their utmost endeavours to promote the amendment of whatever shall appear to need it. I pretend not to have taken notice of every particular in our Crown Law which may deserve it; my design was only to give a few hints, wherein I might evince the necessity of a reformation; and if I can be any way instrumental in bringing it about by stirring up others of more capacity and influence to undertake the task, I shall answer my end.

The reader will by this time expect some Account of the Improvements and Alterations in this Second Edition. When the first Edition was preparing for the press, the Undertakers were at great pains and expence, and offered large encouragements to procure whatever was proper and suitable to their design; but as they were sensible there must needs be many defects and omissions in the first attempt of a Work of this nature, so they have continued their pains to supply those defects, and have offered the same encouragements to any who should furnish them with such material Trials as were then omitted. How they have succeeded in their endeavours may be seen from the large number of Additional Trials: These, together with the Additions interspersed thro' the other Trials, have swell'd the Work to five Volumes; to which there is added a Sixth, containing the most remarkable Trials from the reign of queen Anne, where the first edition ended, to the end of the reign of king George 1. The larger Trial of the earl of Strafford is here purposely omitted, as being an entire Volume in Rushworth's Collections, which is to be had by itself.

To make this Collection more generally acceptable, the Reader is informed at the end of each Trial, where the Prisoner was convicted of a capital crime, whether he was executed or not; and (where it could be had) an Account also is added of his Behaviour and Speech at the place of Execution.

(m) Annal. lib. 3. § 25.

And whereas in the former Edition some Trials were inserted out of the order of time, and parts of others transpos'd, they are here reduced to their proper places; the names of the Judges, Attorney-General, &c. are here generally, if not always, inserted; several Notes are added to explain and illustrate the text, and divers References made to the Books of Reports and Historians of the times: and for the ease and conveniency of referring, each Trial is distinctly number'd; the several Titles are render'd uniform, containing the Date when, the crime for which, and the court before whom the Prisoner was try'd; all which are continued where there was room for them throughout the running title; the omission whereof in some places 'tis hoped the candid reader will excuse, since in a work of this nature, where such a variety of printers are employ'd, it can scarce be expected that all parts of it should be performed with equal care and exactness. To render this Work the more useful, especially to the Gentlemen of the Law, there is subjoin'd by way of Appendix a Collection of Records relating to the said Trials. The undertakers wish they could say they had had the same success in this part of the work as in the other; but hope the fault will not be imputed to them, who have inserted all they could procure, and done their endea vours to procure the rest. That the whole might be the better fitted for use, there are added two Alphabetical Tables; the one containing the Names of the Persons tried or proceeded against, together with the Times and Places of their Trial, and also their Crimes and Punishments; the other of the several Matters contained in all the Six Volumes.

March 27, 1730.

S. EMLYN.

VOL.