1. John Beattie, Crime and the Courts in England, 1600-1800 (Princeton, 1986); John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, 1974); Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago, 1985).

2. See James Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston, 1898); John Wigmore, The Principles of Judicial Proof as Given by Legal, Psychological and General Experience (2d ed., Boston, 1931).

1. See Chapter 2 for a discussion of the presentment, or accusing, jury. See also Paul R. Hyams, "Trial by Ordeal: The Key to Proof in the Early Common Law," in On the Laws and Customs of England , ed. M. S. Arnold, Thomas A. Green, Sally A. Scully, and Stephen D. White (Chapel Hill, 1981), 90-126.

2. Roger D. Groot, "The Early Thirteenth-Century Criminal Jury," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 , ed. J. S. Cockburn and Thomas A. Green (Princeton, 1988), 18. Groot suggests presentment juries were used primarily to report those who had been suspected of crimes. This collection focuses on the jury composition and the tension between judges and juries.

3. Thomas A. Green, "A Retrospective on the Criminal Trial Jury, 1200-1800," in Twelve Good Men , ed. Cockburn and Green, 365. See also Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago, 1985). break

4. Edward Powell, "Jury Trial at Gaol Delivery in the Late Middle Ages: The Midland Circuit, 1400-1429," in Twelve Good Men , ed. Cockburn and Green, 78. See also Thomas A. Green, "The Jury and the English Law of Homicide, 1200-1600," Michigan Law Review 74 (1976): 423-499, at 424. See also, in Twelve Good Men , J. B. Post, "Jury Lists and Juries in the Late Fourteenth Century," 73, 74, 75; Bernard W. McLane, "Juror Attitudes toward Local Disorders: The Evidence of the 1328 Trailbaston Proceedings," 56-67.

5. Sir John Fortescue, De Laudibus Legum Anglie , ed. and trans. S. B. Chrimes (Cambridge, Mass., 1942), chap. 26. Witnesses were "neighbors able to live of their own repute and fair-minded." They were not brought into court by either party, but were chosen by a respectable and impartial officer and compelled to come before the judge.

6. Post, "Jury Lists," 75.

7. Edward Powell, "Jury Trial," 96. Powell estimates that criminal trials took an hour or less. Acquittals in cases of larceny, the staple of the gaol delivery business, were frequent. Cases brought by indictment resulted in a higher level of acquittals than for those initiated by appeal (89, 98, 105). It was not until the late seventeenth century that juries, at least on the home circuit, began to deliberate on each case as it was concluded. John Beattie, "London Juries in the 1690s," Twelve Good Men , ed. Cockburn and Green, 220.

8. Powell, "Jury Trial," 108, 110.

9. See John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, Mass., 1974). Powell suggests the change had occurred earlier. "Jury Trial," 79.

10. K. M. Teeven, "Seventeenth-Century Evidentiary Concerns and the Statute of Frauds," Adelaide Law Review 9 (1983): 225.

11. P. G. Lawson, "Lawless Juries? The Composition and Behavior of Hertfordshire Juries, 1573-1624," in Twelve Good Men , ed. Cockburn and Green, 123-124. Jurors were from the county but not usually from the parish where the offense occurred. Sir Matthew Hale's late seventeenth-century emphasis on the vicinage requirement thus did not conform to practice. Jurors were required to be of the vicinity until 1705.

12. See John M. Mitnick, "From Neighbor Witness to Judge of Proofs: The Transformation of the English Civil Juror," American Journal of Legal History 32 (1988): 203, 204. Mitnick describes the development of the English practice of granting new trials for verdicts given by juries against the evidence. For discussion of the criminal jury trial see Green, Verdict According to Conscience .

13. Quoted in Mitnick, "From Neighbor Witness," 219, citing J. Spedding, An Account of the Life and Times of Francis Bacon (London, 1880), continue

1:513. Almost identical language is contained in "The Royal Proclamation for Jurors: October 5, 1607," in Stuart Royal Proclamations , ed. J. F. Larkin and P. L. Hughes (Oxford, 1973), 1:168.

14. Matthew Hale, History and Analysis of the Common Law of England (London, 1820), xxviii, xxix, 346-347; The History of the Pleas of the Crown , 2 vols. (London, 1736), 2:277; see also Hale, The Primitive Origination of Mankind (London, 1677), 128; Barbara Shapiro, "Law and Science in Seventeenth-Century England," Stanford Law Review 21 (1969): 757-760.

15. See Richard H. Popkin, The History of Scepticism from Erasmus to Spinoza (Berkeley, 1979).

16. For efforts to link Bacon's scientific and legal views see Paul Kocher, "Francis Bacon and the Science of Jurisprudence," Journal of the History of Ideas 8 (1957): 3-26; Harvey Wheeler, "The Invention of Modern Empiricism: The Juridical Foundations of Francis Bacon's Philosophy of Science," Law Library Journal 76 (1983): 78-120; Kenneth Cardwell, "Francis Bacon and the Inquisition of Nature" (Paper delivered at the Pacific Coast Conference of British Studies, April 1986); Mark Neustadt, "The Relationship between Francis Bacon's Scientific and Legal Reform Programs" (Paper delivered at the International Congress of the History of Science, 1985).

17. See Barbara Shapiro, Probability and Certainty in Seventeenth-Century England: A Study of the Relationships between Natural Science, Religion, History, Law and Literature (Princeton, 1983); Henry Van Leeuwen, The Problem of Certainty in English Thought, 1630-1690 (The Hague, 1963); R. M. Burns, The Great Debate on Miracles (London, 1981), 19-40; R. S. Westfall, Religion and Science in Seventeenth-Century England (New Haven, 1958).

18. John Wilkins, Of the Principles and Duties of Natural Religion (London, 1675), 7-8. Emphasis mine. See also 10-11.

19. Ibid., 7-8.

18. John Wilkins, Of the Principles and Duties of Natural Religion (London, 1675), 7-8. Emphasis mine. See also 10-11.

19. Ibid., 7-8.

20. Walter Charleton, Immortality of the Human Soul (London, 1657), 186-188. Descartes also used the term "moral certainty" in connection with things about which "it seem[s] impossible to doubt . . . without extravagance" (e.g., that one has a body and that there are stars and the earth). René Descartes, Discourse on Method , trans. Arthur Wollaston (London, 1960), 1960.

21. See Shapiro, "Law and Science," 727-766, and Probability and Certainty , 163-193; Theodore Waldman, "Origins of the Legal Doctrine of Reasonable Doubt," Journal of Historical Ideas 20 (1959): 299-316; D. L. Patey, Probability and Literary Form (Cambridge, 1983); R. M. Sargent, "Scientific Experiment and Legal Expertise: The Way of Experi- soft

ence in Seventeenth-Century England," Studies in the History and Philosophy of Science 20 (1989): 9-46; Stephen A. Siegel, "The Aristotelian Basis of English Law, 1450-1800," New York University Law Review 56 (1981): 18-59.

22. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 16, secs. 6, 7, and 8. Locke frequently employs the language of witnesses.

23. Ibid., bk. 4, chap. 16, secs. 6-7.

24. Ibid., bk. 4, chap. 16, sec. 8.

25. Ibid., bk. 4, chap. 16, sec. 9. Section 10 contains a discussion on attesting documents and copies of documents and on hearsay evidence. Locke emphasized "that any testimony, the further off it is from being the actual truth, the less force and proof it has."

22. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 16, secs. 6, 7, and 8. Locke frequently employs the language of witnesses.

23. Ibid., bk. 4, chap. 16, secs. 6-7.

24. Ibid., bk. 4, chap. 16, sec. 8.

25. Ibid., bk. 4, chap. 16, sec. 9. Section 10 contains a discussion on attesting documents and copies of documents and on hearsay evidence. Locke emphasized "that any testimony, the further off it is from being the actual truth, the less force and proof it has."

22. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 16, secs. 6, 7, and 8. Locke frequently employs the language of witnesses.

23. Ibid., bk. 4, chap. 16, secs. 6-7.

24. Ibid., bk. 4, chap. 16, sec. 8.

25. Ibid., bk. 4, chap. 16, sec. 9. Section 10 contains a discussion on attesting documents and copies of documents and on hearsay evidence. Locke emphasized "that any testimony, the further off it is from being the actual truth, the less force and proof it has."

22. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 16, secs. 6, 7, and 8. Locke frequently employs the language of witnesses.

23. Ibid., bk. 4, chap. 16, secs. 6-7.

24. Ibid., bk. 4, chap. 16, sec. 8.

25. Ibid., bk. 4, chap. 16, sec. 9. Section 10 contains a discussion on attesting documents and copies of documents and on hearsay evidence. Locke emphasized "that any testimony, the further off it is from being the actual truth, the less force and proof it has."

26. See Shapiro, Probability and Certainty , 15-73.

27. Ibid., 140-149, 155-159. See also Sargent, "Scientific Experiment," 19-45; Steven Shapin and Simon Schaeffer, Leviathan and the Air Pump (Princeton, 1985).

26. See Shapiro, Probability and Certainty , 15-73.

27. Ibid., 140-149, 155-159. See also Sargent, "Scientific Experiment," 19-45; Steven Shapin and Simon Schaeffer, Leviathan and the Air Pump (Princeton, 1985).

28. Seth Ward, A Philosophical Essay toward an Eviction of God , 1667 ed. (London, 1654), 84-88, 90, 99-101, 102, 107ff., 117.

29. Edward Stillingfleet, Origines Sacrae (London, 1662), passim. See also R. T. Carroll, The Common Sense Philosophy of Bishop Edward Stillingfleet, 1635-1699 (The Hague, 1975); Richard Popkin, "The Philosophy of Bishop Stillingfleet," Journal of the History of Philosophy 9 (1971): 303-319. See also Samuel Parker, A Demonstration of the Law of Nature and of the Christian Religion (London, 1681), Preface, xxvii, xxix, 176, 179; Gerard Reedy, The Bible and Reason: Anglicans and Scripture in Late Seventeenth-Century England (Philadelphia, 1985); John Henry, "Roman Catholicism and the 'Motive Forces of the New Science'" (Paper delivered at International Workshop, Fifty Years of the Merton Thesis, May 1988, Tel Aviv University).

30. Joseph Addison, The Works of the Right Honorable Joseph Addison (London, 1721), 420.

31. Locke, Essay , bk. 4, chap. 15, sec. 5. His criteria may owe something to canon and civil law—suggesting the mutual influence of philosophy and law. Locke's residence in the Netherlands would undoubtedly have familiarized him with the civil law. See also Burns, The Great Debate , 59-61.

32. T. B. Howell, ed. Complete Collection of State Trials , 34 vols. (London, 1809-1826), 1:392, 402, 521, 880, 881, 886, 901, 1013, 1054, 1320. (Hereafter referred to as State Trials .) "On your conscience . . . would you believe them?" 1 State Trials , 1071. See also 1 State Trials , 1049, 1051, 1061. In the Trial of Sir Thomas More (1535) jurors were told that continue

the decision about witness credibility rested on the "conscience and discretion" of the jury. 1 State Trials , 401. More was informed by the judge that the jury had found him "Guilty in their Conscience." 1 State Trials , 402. See also 1 State Trials , 1151. For Bacon's draft, see William Holdsworth, A History of English Law , 16 vols. (London, 1926-1964), 1: 333. For the proclamation, which was corrected and revised by Robert Cecil, see Stuart Royal Proclamations , 1: 167-171.

33. Matthew Hale, History of the Common Law of England , ed. Charles M. Gray (Chicago, 1971), 164, 165. Civil law judges in contrast were "precisely bound by rules."

34. Ibid., 164. Hale's History of the Pleas of the Crown also distinguishes between legal and credible witnesses (2: 277). Hale's legal writings do not indicate that he rejected the introduction of hearsay evidence from the courtroom. For a discussion of the hearsay rule see Chapter 4.

33. Matthew Hale, History of the Common Law of England , ed. Charles M. Gray (Chicago, 1971), 164, 165. Civil law judges in contrast were "precisely bound by rules."

34. Ibid., 164. Hale's History of the Pleas of the Crown also distinguishes between legal and credible witnesses (2: 277). Hale's legal writings do not indicate that he rejected the introduction of hearsay evidence from the courtroom. For a discussion of the hearsay rule see Chapter 4.

35. Hale, Primitive Origination , 129.

36. Ibid., 52, 128.

35. Hale, Primitive Origination , 129.

36. Ibid., 52, 128.

37. See Holdsworth, History of English Law , 9: 196, 204-209; J. H. Wigmore, "The Required Number of Witnesses," Harvard Law Review 15 (1901): 83, 88-90. Several sixteenth-century trials also indicate jurors were concerned with the credibility of witness testimony. See 1 State Trials , 392, 880, 881.

38. Before 1661 the law of treason seems to have required only the testimony of "legal," not "credible," witnesses. Older views, however, did not immediately disappear. Evidently few of the peers who had condemned the Earl of Stafford had "believed the witnesses." The witnesses had "sworn the facts," and therefore the peers claimed they had no choice but to accept them. Sometime after the trial Judge North angrily informed the peers who had expressed this view that their behavior was "contrary to the very institution of trials." They must not try "the grammatical construction of words . . . but the credibility of persons and things . . . which required collaction of circumstances and a right judgement . . . if you believe the witnesses find, else not." Roger North, The Lives of the Norths , ed. A. Jessopp, 3 vols. (London, 1890), 1: 303-314.

Confusion concerning the treatment of witnesses by the jury was not the only type of difficulty. While it is clear that jurors had become judges of the facts, they were nevertheless still entitled to know things on their own. If by 1650 one judge had ruled that a juror who wished to present evidence must be heard on oath in court like any other witness; another judge in 1670 insisted they might still act on their knowledge. See R. W. Baker, The Hearsay Rule (London, 1950), citing Benett v. Hartford (1650); Sir John Vaughan, The Reports and Arguments (London, 1677), 135, 149. In 1698 Judge Holt ruled still somewhat tentatively: "In Case a continue

Jury give a Verdict upon their own knowledge, they ought to tell the Court so, but the fairest way would be for such of the Jurors as had knowledge of the matter before they are sworn, to inform the court of the thing, and be sworn as witnesses." Sir John Holt, A Report of Diverse Cases (London, 1708), 404. See also Mitnick, "From Neighbor Witness," 201-235.

39. See Green, Verdict According to Conscience , passim.

40. Most of the cases cited are from state trials because so few other reports include the charge to the jury. While we must rely heavily on state trials, which are unevenly distributed over time and frequently involve emotional political trials rather than more typical ones, we must use them because there is virtually no other evidence available. While the outcome of many of these cases was often predetermined, there is no reason to believe that the bench employed atypical legal concepts and terminology. But see Green, Verdict According to Conscience , 251-252. The Proceedings at Old Bailey are too brief to be helpful. Most report little more than verdicts. The High Court of Justice, the revolutionary tribunal that tried Charles I in 1649, ruled that the court was fully satisfied in its judgments and consciences "that the king was guilty."

41. 6 State Trials , 67, 82; 6 State Trials , 530, 559; 6 State Trials , 566, 614, 615; 6 State Trials , 879, 891.

42. Edward Waterhouse, Fortescue Illustratus (London, 1663), 259.

43. 6 State Trials , 999, 1005, 1006, 1008, 1110. If judges could direct verdicts, there would be no need for a jury. Justice Vaughan also noted that a jury might have personal knowledge of the case that the judge might not have. For discussion of the Penn-Mead trial and Bushel's case, see Green, Verdict According to Conscience , 200-249; John A. Phillips and Thomas C. Thompson, "Jurors v. Judges in Later Stuart England: The Penn-Mead Trial and 'Bushell's Case,'" Law and Inequality: A Journal of Theory and Practice 4 (1986): 189-229.

44. 8 State Trials , 13, 1386; 9 State Trials , 653, 666.

45. 7 State Trials , 250, 255; 7 State Trials , 715, 726; 7 State Trials , 959, 1054; 8 State Trials , 527, 550; 8 State Trials , 243, 338; 8 State Trials , 447, 489; 9 State Trials , 127, 178, 183; 9 State Trials , 299, 350; 9 State Trials , 637, 654.

46. 7 State Trials , 159, 220; 7 State Trials , 591, 681, 686; 7 State Trials , 1162, 1179; 8 State Trials , 243, 338; 8 State Trials , 747, 810.

47. 7 State Trials , 311, 414; 7 State Trials , 79, 135, 751; 7 State Trials , 1183, 1207; 7 State Trials , 1111, 1130. See also 7 State Trials , 715, 726; 8 State Trials , 747, 757. In other instances juries were required not only to weigh the credibility of witnesses but also to weigh and consider circumstantial evidence. 7 State Trials , 715, 726; 7 State Trials , 1162, 1179, 1180. break

48. John Hawles, The Englishman's Right: A Dialogue between a Barrister at Law and a Juryman (London, 1680), 11.

49. Ibid., 35, 38, 47.

48. John Hawles, The Englishman's Right: A Dialogue between a Barrister at Law and a Juryman (London, 1680), 11.

49. Ibid., 35, 38, 47.

50. Henry Care, English Liberties, or the Free-Born Subject's Inheritance (London, n.d.), 214. See also Thomas Williams, The Excellency and Praeheminence of the Laws of England (London, 1680), 18. Many Whig writers of this era also used the language of the "satisfied" or "fully persuaded conscience" as appropriate for grand jury "verdicts." See Chapter 2.

51. See Thomas Wood, English Casuistical Divinity in the Seventeenth Century (London, 1952); H. R. McAdoo, The Structure of Caroline Moral Theology (London, 1949), 66; see also 79-80; Edmund Leites, ed., Conscience and Casuistry in Early Modern Europe (Cambridge, 1988), 123-124; Albert R. Jonsen and Stephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (Berkeley, 1988). Green's Verdict According to Conscience , the most thorough study of the English criminal trial jury to date, does not explore the concept of conscience.

52. This had also been the position of most scholastic casuists, including St. Thomas Aquinas. Most held that conscience was an art of the practical intellect, not a moral feeling or movement of the will. T. F. Merill, William Perkins: His Pioneer Works on Casuistry (The Hague, 1966), x.

53. Ibid., 3, 5.

54. Ibid., 9, 32.

52. This had also been the position of most scholastic casuists, including St. Thomas Aquinas. Most held that conscience was an art of the practical intellect, not a moral feeling or movement of the will. T. F. Merill, William Perkins: His Pioneer Works on Casuistry (The Hague, 1966), x.

53. Ibid., 3, 5.

54. Ibid., 9, 32.

52. This had also been the position of most scholastic casuists, including St. Thomas Aquinas. Most held that conscience was an art of the practical intellect, not a moral feeling or movement of the will. T. F. Merill, William Perkins: His Pioneer Works on Casuistry (The Hague, 1966), x.

53. Ibid., 3, 5.

54. Ibid., 9, 32.

55. The position of William Ames, a casuist writing a decade or two after Perkins, also emphasized that the exercise of conscience involved an act of practical judgment and "proceeded from the Understanding." Ibid., 38; McAdoo, Caroline Moral Theology , 79.

56. Jeremy Taylor, Ductor Dubitantum, or The Rule of Conscience in all her General Measures, Serving as a Great Instrument for the Determination of Cases of Conscience (London, 1660), 3, 4. It is possible that the legal analogies of the casuists were drawn in part from the ecclesiastical courts, which employed Romano-canon procedure.

57. Ibid., 3, 30, 55. Taylor also discussed the "confident or erroneous conscience," "the probable or thinking conscience," and the "doubting conscience." The first is described in much the same way as latitudinarian theologians and natural philosophers described dogmatism and superstition. The "probable or thinking conscience," which lay between the "sure" and the "doubting" conscience, could, at least on certain occasions, be "made certain by accumulation of many probabilities operating the same persuasion" (90). Such an accumulation of probabilities might be continue

called "a moral demonstration." It required that both sides of a question be examined by an unbiased will. Christianity might be proved by "moral demonstration" (93-107). The "doubting conscience" was considered by Taylor to be a "disease" rather than a guide to human action (157).

56. Jeremy Taylor, Ductor Dubitantum, or The Rule of Conscience in all her General Measures, Serving as a Great Instrument for the Determination of Cases of Conscience (London, 1660), 3, 4. It is possible that the legal analogies of the casuists were drawn in part from the ecclesiastical courts, which employed Romano-canon procedure.

57. Ibid., 3, 30, 55. Taylor also discussed the "confident or erroneous conscience," "the probable or thinking conscience," and the "doubting conscience." The first is described in much the same way as latitudinarian theologians and natural philosophers described dogmatism and superstition. The "probable or thinking conscience," which lay between the "sure" and the "doubting" conscience, could, at least on certain occasions, be "made certain by accumulation of many probabilities operating the same persuasion" (90). Such an accumulation of probabilities might be continue

called "a moral demonstration." It required that both sides of a question be examined by an unbiased will. Christianity might be proved by "moral demonstration" (93-107). The "doubting conscience" was considered by Taylor to be a "disease" rather than a guide to human action (157).

58. McAdoo, Caroline Moral Theology , 77, quoting Robert South, Works (Oxford, 1828), sermon 23, no page cited.

59. John Locke, Two Tracts on Government , ed. Philip Abrams (Cambridge, 1967), 225.

60. John Locke, Essays on the Law of Nature , ed. W. von Leyden (Oxford, 1954), 165.

61. Samuel Pufendorf, Of the Law of Nature and Nations , 1st English ed. (London, 1703), 11, 17-18. Six editions were printed in England between 1691 and 1739.

62. Ibid., 17, 21. It seems likely that concepts relevant to the law and philosophy of evidence may be traced by considering the evolution of moral theology, moral evidence, and discussions of evidence in the human and natural sciences. Samuel Clarke's Discourse Concerning Natural Religion , 3d ed., 1711 (London, 1706) explicitly uses the language of "satisfaction," "evidence of matter of fact," "reasonable and sufficient proof" in connection with legal dispute and proofs of Christianity, 14, 331-334, 336-337. For a discussion of Thomas Reid on moral judgments, see S. A. Grove, The Scottish Philosophy of Common Sense (Oxford, 1960), 239-240, 245, 246. Like the casuists, Reid insists that moral judgments were rational judgments and were based on feeling or sentiment. Such judgments were not "demonstrative" but "highly probable" because they depended on particular matters of fact.

61. Samuel Pufendorf, Of the Law of Nature and Nations , 1st English ed. (London, 1703), 11, 17-18. Six editions were printed in England between 1691 and 1739.

62. Ibid., 17, 21. It seems likely that concepts relevant to the law and philosophy of evidence may be traced by considering the evolution of moral theology, moral evidence, and discussions of evidence in the human and natural sciences. Samuel Clarke's Discourse Concerning Natural Religion , 3d ed., 1711 (London, 1706) explicitly uses the language of "satisfaction," "evidence of matter of fact," "reasonable and sufficient proof" in connection with legal dispute and proofs of Christianity, 14, 331-334, 336-337. For a discussion of Thomas Reid on moral judgments, see S. A. Grove, The Scottish Philosophy of Common Sense (Oxford, 1960), 239-240, 245, 246. Like the casuists, Reid insists that moral judgments were rational judgments and were based on feeling or sentiment. Such judgments were not "demonstrative" but "highly probable" because they depended on particular matters of fact.

63. See John Langbein, "The Criminal Trial before the Lawyers," University of Chicago Law Review 45 (1978): 263-316; John Langbein, "Shaping the Eighteenth-Century Trial: A View from the Ryder Sources," University of Chicago Law Review 50 (1983): 1-136.

64. 10 State Trials , 147, 242; 11 State Trials , 297, 370; 12 State Trials , 645, 810; 12 State Trials , 833, 870; 12 State Trials , 949, 1042; 12 State Trials , 1377, 1455; 13 State Trials , 63, 133; 13 State Trials , 139, 265; 13 State Trials , 313, 393. In a perjury trial the jury was directed to "weigh and consider what is sworn now, and from thence to make a conclusion whether you are not satisfied that innocent blood has been spilt by means of this fellow." 10 State Trials , 1079, 1212. "Take care to examine strictly and impartially . . . and weigh the evidence which has been given on all sides . . . it is incumbent upon you to inquire whether you have not sufficient reason to be satisfied that the truth is now" (1212). "If you think that the witnesses swear true, as I cannot see any colour of objection, continue

there does not remain the least doubt . . . that the accused" was guilty (1211). The accused in this case was Titus Oates. See J. P. Kenyan, "The Acquittal of Sir George Wakemann, 18 July 1679," Historical Journal 14 (1971): 693-708.

65. In the Trial of Stafford (1680), however, the prosecution indicated that "the evidence is so strong, that I think admits of no doubt." The proofs are "so clear and evident, as will leave no room to your lordships to believe" Stafford's protestations. 7 State Trials , 1293, 1305, 1515, 1517. In the Trial of Langhorn the recorder indicated there was not the "least reason for the most scrupulous men to doubt the credibility of the witnesses." Trial of Langhorn (London, 1679), 67. See also 10 State Trials , 1211.

66. "If you are satisfied with the whole matter" was not an atypical formulation. 14 State Trials , 377, 445; 16 State Trials , 93, 299. The phrase "the whole matter" refers to a combination of witness testimony and circumstantial evidence. See also Chapter 3.

67. 14 State Trials , 517, 535; 15 State Trials , 521, 611; 15 State Trials , 613, 651; 16 State Trials , 93, 299; 17 State Trials , 461, 522; 17 State Trials , 1063, 1078-1089; 17 State Trials , 1079, 1090.

68. 16 State Trials , 93, 299; 17 State Trials , 161, 208-209.

69. Occasionally different terminology was employed. Thus one judge used, "if you are sensible and convinced." 17 State Trials , 1625, 1675. Another indicated a guilty verdict was appropriate if the jury had no doubt upon the evidence, (17 State Trials , 211, 226). Doubt in the jury's mind was still not often raised.

70. For the increased importance of legal counsel in criminal trials see Langbein, "The Criminal Trial," 263-316. See also Felix Rackow, "The Right to Counsel: American and English Precedents," William and Mary Quarterly 11 (1954): 4-27.

71. 21 State Trials , 687, 713, 813, 814; 25 State Trials , 226, 288; 25 State Trials , 783, 876; 26 State Trials , 387, 414; 26 State Trials , 595, 652; 26 State Trials , 721, 811; 26 State Trials , 839, 872. Another common formula asked the "opinion" of the jury. 19 State Trials , 1177, 1233; 25 State Trials , 876, 877; 25 State Trials , 1003, 1154; 26 State Trials , 910, 1008; 27 State Trials , 1, 138. "Opinion" had a far lower status than "satisfied belief" in common terminology and would have been viewed as far below "moral certainty."

72. 19 State Trials , 485, 647; 21 State Trials , 687, 814; 21 State Trials , 847, 949-950; 22 State Trials , 175, 208; 26 State Trials , 225, 280-281.

73. 9 State Trials , 745, 845; 21 State Trials , 485, 647; 22 State Trials , 753, 822; 25 State Trials , 1003, 1154; 27 State Trials , 1, 138. break

74. 24 State Trials , 199, 1383. See also 25 State Trials , 1003, 1154. The "judgment" would consider whether the weight of the evidence was sufficient or not. 26 State Trials , 1, 222.

75. 26 State Trials , 225, 286. A guilty verdict was appropriate "if your understandings are absolutely coerced to believe." Coerced assent for Locke and others was associated with the highest degree of probability, or "moral certainty."

76. 26 State Trials , 437, 457. In another case the jury was advised to judge "by the result of the evidence and the clear impressions that the result shall make upon your minds." It was not to judge on mere probabilities. 25 State Trials , 743, 731. In another they were to find the truth "according to your conscience and the best of your judgments." 26 State Trials , 295, 350. In still another, the evidence was to carry "conviction brought home to your minds." 26 State Trials , 295, 351. See also 26 State Trials , 353, 386; 26 State Trials , 387, 437; 23 State Trials , 1167, 1386.

77. 15 State Trials , 783, 876, 877. In another case jurors were told, "If the scale should hang doubtful," and they were not "fully satisfied," they should acquit. 21 State Trials , 485, 647; see also 22 State Trials , 471, 519. In another case jurors were told to acquit if "there remains any doubt upon the case." 25 State Trials , 1, 739. Judges who raised the possibility of doubt were also more likely to suggest the possibility of acquittal. Jurors were thus more likely to be reminded that the benignity of English law was in favor of life and of the legal maxim that it is preferable for ten or even one hundred guilty men to go free than for one innocent man to die. The maxim, which may have a Romano-canon origin, appears in Hale's unpublished diary. See Maija Jansson, "Matthew Hale on Judges and Judging," Journal of Legal History 9 (1989): 208.

78. The Genuine Trial of Swann (London, 1752), 4.

79. Anthony A. Morano, "A Reexamination of the Reasonable Doubt Rule," Boston University Law Review 55 (1975): 507-528.

80. William Paley's lectures written in the 1760s and 1770s, however, complained of the

overstrained scrupulousness, or weak timidity of juries, which demands often such proof of a prisoner's guilt, as the nature and secrecy of his crime scarce permit of; and which holds it is the part of a safe conscience not to condemn any man, whilst there exists the minutest possibility of his innocence. . . . I do not mean that juries should indulge conjectures, should magnify suspicions into proofs, or even that they should weigh probabilities in gold scales ; but when the preponderation of evidence is so manifest as to persuade every private understanding of the prisoner's guilt; when it furnishes the degree of credibility, upon which men decide and act in all other doubts, and which experience hath shown that they may decide and act upon with sufficient safety; to reject such proof, from an insinuation of uncertainty that belongs to all human affairs, and from a general dread continue

lest the charge of innocent blood should lie at their doors, is a conduct which . . . is authorized by no considerations of rectitude or utility.

William Paley, Principles of Moral and Political Philosophy , 9th ed., Boston, 1818 (London, 1785), 354-355. Paley rejected the validity of the maxim that it is better that ten guilty persons escape than a single innocent man should suffer (356).

81. See Morano, "A Reexamination," 516-519.

82. The Legal Papers of John Adams , ed. L. Wroth and H. Zobel, 3 vols. (Cambridge, Mass., 1965), 3:270, 271, 273, 292, 299, 300, 309. John Adams, on another occasion, argued that juries had the right and duty "to find the Verdict of the Case according to his own best Understanding, Judgment and Conscience," even though it might be in direct opposition to the direction of the court (1: 230).

83. Geoffrey Gilbert, The Law of Evidence (Dublin, 1754). It would not, therefore, be unreasonable to expect beyond reasonable doubt language any time after 1754, the year Gilbert's treatise first appeared. Yet it does not appear in the published State Trials until 1795, and it is not to be found in Coke, Hale, or Blackstone.

84. Whole Proceedings of Old Bailey (London, 1777), 110-111.

85. 26 State Trials , 721, 811. They were also instructed to convict if they believed the evidence.

86. 26 State Trials , 222, 280-281, 286, 289.

87. 26 State Trials , 295, 351. Jurors in the same case were also told that they should decide "according to your conscience, and the best of your judgments" (349, 350); 26 State Trials , 353, 385-387. In another 1796 case, the judge informed the jury, "if you believe that from any rational consideration," a particular witness was not entitled to credit, they must acquit. If they were "in suspense" or "suspended in doubt," they should also acquit. 26 State Trials , 387, 414, 419.

In the Trial of Sheares (1797), the judge indicated that if the jury "entertain any rational doubt, not merely a capricious doubt, but the doubt of sensible men," then they should acquit. 27 State Trials , 355, 391. In a 1798 case they were advised that if they "entertain a fair and conscientious doubt" as to the credit of the witnesses or as to "the sufficiency of the evidence," they should acquit. Trial of MacCann (1798), 27 State Trials , 399, 453-454.

In still another 1798 Irish case, defense counsel indicated that if the jury's conscience was satisfied on the evidence then they should convict, but if they had a rational doubt then they should acquit. The judge noted that if they were "not satisfied with the weight of the evidence, or entertain[ed] such doubts upon the cases, as rational and conscientious minds may well indulge in," they should acquit. If "satisfied" in their "con- soft

sciences" that the evidence were true, they must find the accused guilty. Trial of Byrne (1798), 27 State Trials , 455, 494, 523. See also the Trial of Bond (1798), 27 State Trials , 523, 611; Trial of Tuite (1799), 27 State Trials , 1121, 1135. In 1803, Lord Nocking explained they were to acquit if they had a "rational and well grounded doubt." Trial of Donnelly (1803), 28 State Trials , 1069, 1097.

88. Trial of Kennedy (1796), 26 State Trials , 353, 386-387.

89. Trial of Glennan (1796), 26 State Trials , 437, 457. See also Trial of the Bishop of Bangor (1796), 26 State Trials , 463, 527. The beyond reasonable doubt standard also appeared in the Trial of Dun (1796), 26 State Trials , 872, 877, 878, and the Trial of Finerty (1797), 26 State Trials , 901, 1008. In the Trial of Finney (1798) the judge indicated that the evidence must be "full and complete in your minds, and such as ought to satisfy your conscience." They were to be "satisfied beyond all possibility of doubt, that the testimony which you have heard is true." 26 State Trials , 1019, 1132.

90. Trial of Lyon (1799) for seditious libel, reprinted in Francis Wharton, State Trials of the United States during the Adminstrations of Washington and Adams (Philadelphia, 1849), 333, 336.

91. Wharton, State Trials , 458, 548. Many American colonies permitted defense counsel earlier than the English, despite the fact there initially were few trained lawyers in the colonies. The right to counsel was embodied in the Sixth Amendment. The absence of defense counsel had been justified by Coke on the grounds that guilt should be so obvious that no defense was possible and that the judge would act as counsel for the defense. Edward Coke, Institutes of the Lawes of England (London, 1628-1644), 3: 137. See also William Hawkins, A Treatise of the Pleas of the Crown (London, 1717), chap. 39, sec. 2. Blackstone, however, complained that it was not reasonable to deny counsel in cases of felony and yet to allow them for misdemeanor. William Blackstone, Commentaries on the Laws of England , 4 vols. (London, 1765-1769), 4: 355. In 1696 legislation permitted counsel in cases of treason. In 1836 a right to counsel was provided. See Rackow, "The Right to Counsel," 4-27.

92. Wharton, State Trials , 553, 554, 578, 586. In the Trials of Richard Smith , defense counsel reminded the jury "if there remain a single doubt, it is your duty to have that doubt completely removed, before you convict." Trials of Richard Smith (1816), 206.

93. Commonwealth v. Webster, 59 Mass. (5 Cush.), 320 (1850). This definition was widely adopted. Morano, "A Reexamination," 523 n. 23.

94. Although the beyond reasonable doubt doctrine became a feature of both English and American law, it must have operated somewhat dif- soft

ferently insofar as judges were differentially regulated in assisting jurors in making their determination. Although I often refer to the Anglo-American legal tradition, one should not assume that English and American practice developed in identical ways. An important example is found in divergent approaches to judicial comment on the facts and expressions of opinion as to the credibility of witnesses. Although these practices were accepted in the eighteenth century by both English and colonial judges, they began to be abandoned and prohibited in American jurisdictions beginning in 1795 and were eliminated in most American jurisdictions between 1835 and 1860. By 1913, forty-one states prohibited judicial comment, largely on the grounds that the prohibition would produce a more impartial trial. Critics insisted jurors were better fact finders than judges and that to allow judicial comment would, in effect, turn the fact-finding process over to the judiciary. American suspicion of the judiciary appears to have increased as that of the English waned. If differences in democratic sentiment were significant, so too were the differences between English and American judges. The former were fewer in number and were selected from among the most respected members of the legal profession. The far more numerous American judges were recruited from a much broader spectrum of the population and were frequently elected. English judges became more powerful in relation to jurors from c. 1725 as they increasingly relied on the directed verdict, which reduced jury participation in decision making. See Kenneth Krasity, "The Role of the Judge in Jury Trials: The Elimination of Judicial Evaluation of Fact in American State Courts from 1795-1913," University of Detroit Law Review 62 (1985): 595, 596, 608, 610, 616, 619. For a somewhat parallel development in which English judges gained control over juries in civil cases see Mitnick, "From Neighbor Witness," 201-235. In 1854 English legislation introduced the possibility of trial of facts by a judge without a jury. The result was the near disappearance of the civil jury (234).

95. For the treatise tradition see A. W. B. Simpson, "The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature," University of Chicago Law Review 48 (1981): 632-680; William Twining, "The Rationalist Tradition of Evidence Scholarship," in Well and Truly Tried: Essays on Evidence in Honour of Sir Richard Eggleston , ed. Enid Campbell and Louis Waller (Sydney, Australia, 1982), 211-249.

96. Gilbert, Law of Evidence , 1-2. Editions appeared in 1756, 1760, 1761, 1764, 1769, 1777, 1788, 1790, 1791-1794, 1795-1797, 1801. His treatise was composed before 1726, the year of his death.

97. Ibid., 3. Gilbert discusses both certainty and probability. Certainty was obtained by a "clear and distinct perception" of the senses and continue

a "way of knowledge by necessary Inferences" (1-2). See also Geoffrey Gilbert, Abstract of Mr. Locke's Essay on Human Understanding (Dublin, 1752), 42, 45-47.

As we judge by our Experience, so also we judge by the Sight, Observation, and Experience of others; and this is called Testimony. And in this light things are considerable: (1) The Number. (2) The Integrity. (3) The Skill of the Witnesses. (4) Their True Design and Interests. (5) The Consistency of the Parts and Circumstances of the Relation. (6) Contrary Testimonies. (7) The Consistence of what is attested with our own Observation and Experience. And (8) The Distance of such relators from the Sight and View of the Thing which they attest; which is so far weakened as they themselves take it from others, and the Thing related doth not fall under their own View or Experience. These are the Criterions of Probability, touching Facts depending on mere human Agents. (48-49)

For an important treatment of the history of legal evidence, see William Twining, Theories of Evidence: Bentham and Wigmore (London, 1985). Twining views the Anglo-American evidence scholarship of Gilbert to be rooted in English empiricism, that is, in Locke, Bentham, J. S. Mill, Sidgwick, and modern analytical philosophers such as A. J. Ayers (see 1-18).

96. Gilbert, Law of Evidence , 1-2. Editions appeared in 1756, 1760, 1761, 1764, 1769, 1777, 1788, 1790, 1791-1794, 1795-1797, 1801. His treatise was composed before 1726, the year of his death.

97. Ibid., 3. Gilbert discusses both certainty and probability. Certainty was obtained by a "clear and distinct perception" of the senses and continue

a "way of knowledge by necessary Inferences" (1-2). See also Geoffrey Gilbert, Abstract of Mr. Locke's Essay on Human Understanding (Dublin, 1752), 42, 45-47.

As we judge by our Experience, so also we judge by the Sight, Observation, and Experience of others; and this is called Testimony. And in this light things are considerable: (1) The Number. (2) The Integrity. (3) The Skill of the Witnesses. (4) Their True Design and Interests. (5) The Consistency of the Parts and Circumstances of the Relation. (6) Contrary Testimonies. (7) The Consistence of what is attested with our own Observation and Experience. And (8) The Distance of such relators from the Sight and View of the Thing which they attest; which is so far weakened as they themselves take it from others, and the Thing related doth not fall under their own View or Experience. These are the Criterions of Probability, touching Facts depending on mere human Agents. (48-49)

For an important treatment of the history of legal evidence, see William Twining, Theories of Evidence: Bentham and Wigmore (London, 1985). Twining views the Anglo-American evidence scholarship of Gilbert to be rooted in English empiricism, that is, in Locke, Bentham, J. S. Mill, Sidgwick, and modern analytical philosophers such as A. J. Ayers (see 1-18).

98. Twining, Theories of Evidence , 4.

99. See Shapiro, Probability and Certainty , chaps. 1 and 2, and Shapiro, John Wilkins, 1614-1672: An Intellectual Biography (Berkeley, 1969); Theodore Waldman, "Origins," 312-313.

100. John Morgan, Essays upon the Law of Evidence , 2 vols. (London, 1789), 1: 1, 2-3, 4-5. Morgan also refers to Paley on evidence. Witness credibility and circumstantial evidence governed judgment in legal trials (1: 39, 48-49). The credibility of a witness was to be judged from his "state and dignity in the world," his religiosity, moral condition, interest in the cause, intelligence, and memory (1: 46). The quality, education, behavior, and understanding of a witness must also be taken into account (1: 12-13). See also 1: 47, 146-255.

Morgan also discussed concurrent testimony, circumstantial evidence, the doctrine of presumptions, and how to evaluate the credibility of witnesses. Morgan, like most later writers on evidence, devotes a good deal of time and space to a proper understanding of presumptions and circumstantial evidence. See Chapter 4.

101. James Wilson, The Works , ed. James DeWitt Andrews, 2 vols. (Chicago, 1896), 1: 486, 505.

102. For a discussion of the Scottish school, see S. A. Grove, The Scottish Philosophy of Common Sense (Oxford, 1960), 3-6, 27, 87-92, 96, 138. Reid thus disagreed with Locke's distinction between knowledge and judgment. Thomas Reid, Essays on the Intellectual Powers of Man (Cam- soft

bridge, 1850), 328-329. See also 313-317. For Reid on probable reasoning see 411ff. Reid was also concerned with doubt. "Belief is mixed with doubt more or less, until we come to the highest degree of evidence, when all doubt vanishes and the belief is firm and immovable . . . this is called certainty" (413-415).

103. Wilson, Works , 1: 518, 519.

104. Ibid., 1: 508, 510.

105. Ibid., 1: 503-504; 2: 232. Wilson raised the issue of the jurors' doubt while considering the problem of unanimous verdicts. If a "single doubt" remains in the mind of any juror, it must produce the dissent of that particular juror. If that dissent is believed, all other jurors should agree to an acquittal (235). Wilson may have been the first to discuss the problem of producing unanimous verdicts in the context of evidentiary concerns.

103. Wilson, Works , 1: 518, 519.

104. Ibid., 1: 508, 510.

105. Ibid., 1: 503-504; 2: 232. Wilson raised the issue of the jurors' doubt while considering the problem of unanimous verdicts. If a "single doubt" remains in the mind of any juror, it must produce the dissent of that particular juror. If that dissent is believed, all other jurors should agree to an acquittal (235). Wilson may have been the first to discuss the problem of producing unanimous verdicts in the context of evidentiary concerns.

103. Wilson, Works , 1: 518, 519.

104. Ibid., 1: 508, 510.

105. Ibid., 1: 503-504; 2: 232. Wilson raised the issue of the jurors' doubt while considering the problem of unanimous verdicts. If a "single doubt" remains in the mind of any juror, it must produce the dissent of that particular juror. If that dissent is believed, all other jurors should agree to an acquittal (235). Wilson may have been the first to discuss the problem of producing unanimous verdicts in the context of evidentiary concerns.

106. Leonard McNally, The Rules of Evidence on Pleas of the Crown (London and Dublin, 1802), 3.

107. Daniel McKinnon, The Philosophy of Evidence (London, 1812), 20, 24, 25, 27, 64. Common sense "must be the only guide" for determining the jury's belief (53).

108. Samuel Phillipps, Theory of Presumptive Proof (London, 1814), 58. Quoted in anonymous article in American Law Review 10 (1876): 642-664, 658. Zephaniah Swift's Digest of the Law of Evidence in Civil and Criminal Cases (Hartford, 1810) indicates evidence "must be sufficient to convince and satisfy the mind," and if the jury entertains a reasonable doubt, then it was bound to acquit (151). The 1806 Kentucky revision of the criminal law not only begins with a Lockean treatment of evidence in criminal prosecutions, but also discusses the several degrees of evidence and certainty in history, natural history, astronomy, and law. It also contains the beyond reasonable doubt language. Harry Toulmin and James Blair, A Revision of the Criminal Law of the Commonwealth of Kentucky , 2 vols. (Frankfurt, Kentucky, 1806), 2: 317-318.

109. David Hartley, Observations on Man (London, 1749), 204-230, 362.

110. Isaac Watts, Logick, or The Right Use of Reason in the Inquiry after Truth , 1st ed., 1724 (London, 1775), 175, 177, 247, 266-271.

111. George Campbell, The Philosophy of Rhetoric , ed. L. Bitzer (Carbondale, Ill., 1963), 44, 55. See also 43ff. The Philosophy of Rhetoric was composed about 1750 and published in 1776.

112. Richard Kirwan, Logick, or An Essay on the Elements, Principles and Different Modes of Reasoning , 2 vols. (London, 1807), 1:x.

113. Ibid., 1:146, 151. See also 224.

114. See, e.g., ibid., 2: 354, 555. Among others, he refers to Gilbert, continue

Capel Lofft, and Thomas Peake, authors or editors of evidence treatises. He particularly praises McNally.

112. Richard Kirwan, Logick, or An Essay on the Elements, Principles and Different Modes of Reasoning , 2 vols. (London, 1807), 1:x.

113. Ibid., 1:146, 151. See also 224.

114. See, e.g., ibid., 2: 354, 555. Among others, he refers to Gilbert, continue

Capel Lofft, and Thomas Peake, authors or editors of evidence treatises. He particularly praises McNally.

112. Richard Kirwan, Logick, or An Essay on the Elements, Principles and Different Modes of Reasoning , 2 vols. (London, 1807), 1:x.

113. Ibid., 1:146, 151. See also 224.

114. See, e.g., ibid., 2: 354, 555. Among others, he refers to Gilbert, continue

Capel Lofft, and Thomas Peake, authors or editors of evidence treatises. He particularly praises McNally.

115. James Gambier, A Guide to the Study of Moral Evidence, or of that Species of Reasoning which Relates to Matters of Fact and Practice (Boston, 1834), 49.

116. Ibid., 49, 50.

117. Ibid., 55.

118. Ibid., 17.

119. Ibid., 57-58, 59.

120. Ibid., 66.

121. Ibid., 17. The book treated the different kinds of moral evidence, e.g., observation, testimony, and mixed. Testimony is direct or incidental, spoken or written. The credibility of testimony is also discussed. Report, tradition, analogy, and the differences between presumption and proof are analyzed.

115. James Gambier, A Guide to the Study of Moral Evidence, or of that Species of Reasoning which Relates to Matters of Fact and Practice (Boston, 1834), 49.

116. Ibid., 49, 50.

117. Ibid., 55.

118. Ibid., 17.

119. Ibid., 57-58, 59.

120. Ibid., 66.

121. Ibid., 17. The book treated the different kinds of moral evidence, e.g., observation, testimony, and mixed. Testimony is direct or incidental, spoken or written. The credibility of testimony is also discussed. Report, tradition, analogy, and the differences between presumption and proof are analyzed.

115. James Gambier, A Guide to the Study of Moral Evidence, or of that Species of Reasoning which Relates to Matters of Fact and Practice (Boston, 1834), 49.

116. Ibid., 49, 50.

117. Ibid., 55.

118. Ibid., 17.

119. Ibid., 57-58, 59.

120. Ibid., 66.

121. Ibid., 17. The book treated the different kinds of moral evidence, e.g., observation, testimony, and mixed. Testimony is direct or incidental, spoken or written. The credibility of testimony is also discussed. Report, tradition, analogy, and the differences between presumption and proof are analyzed.

115. James Gambier, A Guide to the Study of Moral Evidence, or of that Species of Reasoning which Relates to Matters of Fact and Practice (Boston, 1834), 49.

116. Ibid., 49, 50.

117. Ibid., 55.

118. Ibid., 17.

119. Ibid., 57-58, 59.

120. Ibid., 66.

121. Ibid., 17. The book treated the different kinds of moral evidence, e.g., observation, testimony, and mixed. Testimony is direct or incidental, spoken or written. The credibility of testimony is also discussed. Report, tradition, analogy, and the differences between presumption and proof are analyzed.

115. James Gambier, A Guide to the Study of Moral Evidence, or of that Species of Reasoning which Relates to Matters of Fact and Practice (Boston, 1834), 49.

116. Ibid., 49, 50.

117. Ibid., 55.

118. Ibid., 17.

119. Ibid., 57-58, 59.

120. Ibid., 66.

121. Ibid., 17. The book treated the different kinds of moral evidence, e.g., observation, testimony, and mixed. Testimony is direct or incidental, spoken or written. The credibility of testimony is also discussed. Report, tradition, analogy, and the differences between presumption and proof are analyzed.

115. James Gambier, A Guide to the Study of Moral Evidence, or of that Species of Reasoning which Relates to Matters of Fact and Practice (Boston, 1834), 49.

116. Ibid., 49, 50.

117. Ibid., 55.

118. Ibid., 17.

119. Ibid., 57-58, 59.

120. Ibid., 66.

121. Ibid., 17. The book treated the different kinds of moral evidence, e.g., observation, testimony, and mixed. Testimony is direct or incidental, spoken or written. The credibility of testimony is also discussed. Report, tradition, analogy, and the differences between presumption and proof are analyzed.

115. James Gambier, A Guide to the Study of Moral Evidence, or of that Species of Reasoning which Relates to Matters of Fact and Practice (Boston, 1834), 49.

116. Ibid., 49, 50.

117. Ibid., 55.

118. Ibid., 17.

119. Ibid., 57-58, 59.

120. Ibid., 66.

121. Ibid., 17. The book treated the different kinds of moral evidence, e.g., observation, testimony, and mixed. Testimony is direct or incidental, spoken or written. The credibility of testimony is also discussed. Report, tradition, analogy, and the differences between presumption and proof are analyzed.

122. John Abercrombie, Inquiries Concerning the Intellectual Powers and the Investigation of Truth (Edinburgh, 1820), 17-19, 79, 82-84, 89-93.

123. James Glassford, An Essay on the Principles of Evidence and Their Applications to the Subject of Judicial Inquiry (Edinburgh and London, 1820), ii, iii.

124. Ibid., vii-viii, 8.

123. James Glassford, An Essay on the Principles of Evidence and Their Applications to the Subject of Judicial Inquiry (Edinburgh and London, 1820), ii, iii.

124. Ibid., vii-viii, 8.

125. Thomas Starkie, Practical Treatise on the Law of Evidence , 2 vols., 1833 ed. (London, 1824), 15.

126. Ibid., 478.

127. Ibid., 514.

125. Thomas Starkie, Practical Treatise on the Law of Evidence , 2 vols., 1833 ed. (London, 1824), 15.

126. Ibid., 478.

127. Ibid., 514.

125. Thomas Starkie, Practical Treatise on the Law of Evidence , 2 vols., 1833 ed. (London, 1824), 15.

126. Ibid., 478.

127. Ibid., 514.

128. David Hoffman, A Lecture on Law (Baltimore, 1826), 17-18, 17n-18n.

129. Ibid., 19. Hoffman's Course of Legal Study (Baltimore, 1817) recommended Locke's Essay , Paley's Principles of Moral and Political Philosophy , Reid's Essays on the Intellectual Powers of Man , Pufendorf's Law of Nature and Nations , and McNally's Rules of Evidence (219). Bentham's early writings are also discussed. Hoffman also recommended that American law students study the civil law. He particularly recommended Domat on proofs and presumptions and the evidentiary works of Everhardus, Mascardus, Menochius, and Farinaccius (235, 251-269).

128. David Hoffman, A Lecture on Law (Baltimore, 1826), 17-18, 17n-18n.

129. Ibid., 19. Hoffman's Course of Legal Study (Baltimore, 1817) recommended Locke's Essay , Paley's Principles of Moral and Political Philosophy , Reid's Essays on the Intellectual Powers of Man , Pufendorf's Law of Nature and Nations , and McNally's Rules of Evidence (219). Bentham's early writings are also discussed. Hoffman also recommended that American law students study the civil law. He particularly recommended Domat on proofs and presumptions and the evidentiary works of Everhardus, Mascardus, Menochius, and Farinaccius (235, 251-269).

130. Jeremy Bentham, Rationale of Judicial Evidence , 5 vols. (London, 1827). See Twining, Theories of Evidence , 26, 29. For the Benthamite approach to evidence, see 19-108. For Bentham's use of degrees of persuasion and moral certainty see 55-56. See also Gerald J. Postema, "Fact, Fictions, and Law: Bentham on the Foundations of Evidence," in Facts in Law , ed. William Twining (Wiesbaden, 1983), vol. 16, 37-64; continue

William Twining, "Rule Scepticism in Bentham's Theory of Evidence," in Facts in Law , 65-81.

131. See Simpson, "The Rise and Fall of the Legal Treatise," 632-679. William Wills, An Essay on the Principles of Circumstantial Evidence (London, 1838) shares many features of the more general treatise.

132. Simon Greenleaf, Treatise on the Law of Evidence , 2d. ed. (Boston, 1844), 4-5. Greenleaf also noted that our "faith in human testimony, as sanctioned by experience; that is upon the generally experienced truth of the statements of men of integrity, having capacity and opportunity for observation, and truth. This belief is strengthened by our previous knowledge of the narrator's reputation for veracity; by the absence of conflicting testimony; and by the presence of that, which is corroborating and cumulative." (P. 14)

133. Ibid., 14, 15, 18. See also 50-51, 54-55.

132. Simon Greenleaf, Treatise on the Law of Evidence , 2d. ed. (Boston, 1844), 4-5. Greenleaf also noted that our "faith in human testimony, as sanctioned by experience; that is upon the generally experienced truth of the statements of men of integrity, having capacity and opportunity for observation, and truth. This belief is strengthened by our previous knowledge of the narrator's reputation for veracity; by the absence of conflicting testimony; and by the presence of that, which is corroborating and cumulative." (P. 14)

133. Ibid., 14, 15, 18. See also 50-51, 54-55.

134. James Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston, 1898), 268-269, 271-272, 273-275, 284. For Thayer's differentiation of the rules of evidence and the precepts of logic, see Twining, Theories of Evidence , 6-8.

Sir James Fitzjames Stephen indicated that his work was founded on Mill's Logic as Gilbert's was founded on Locke's. Sir James Fitzjames Stephen, Digest of the Law of Evidence (New York, 1885), xii. William Best indicated judicial evidence was "for the most part, nothing else than natural evidence, restrained or modified by rules of positive law." Best claimed he was seeking the principles behind the cases. William Best, The Principles of the Law of Evidence , 6th ed. (London, 1875), 2. For a discussion of the "human understanding," the nature of truth, and witness credibility see 4-29. See also 56-62.

135. John Wigmore, The Principles of Judicial Proof as Given by Legal, Psychological and General Experience , 2d ed. (Boston, 1931), 3-5. For an important recent discussion of Wigmore see Twining, Theories of Evidence , 109-166.

136. Wigmore, Principles , 5-6.

137. Twining, Theories of Evidence , 125. See also 114-116, 119-122.

138. Although the to a moral certainty and beyond reasonable doubt formulations have been in place in most Anglo-American jurisdictions for many decades, there still has been an ongoing discussion of these formulations. While this is not the place to carry on a thorough investigation of the modern jurisprudential discussion of jury instructions, it is appropriate to suggest something about the nature of twentieth-century discussion.

In a good many United States jurisdictions the phrase "to a moral certainty" has been coupled with belief "beyond reasonable doubt." This continue

coupling has caused confusion and ambiguity as the term "moral certitude" disappeared from common usage. Justice Stanley Mosk's concurrence in the California case of People v. Brigham [25 Cal. 3d 283, 292-316, 599 P.2d 100, 107-121, 157 Cal. Rptr. 905, 913-27 (1979) (Justice Mosk concurring)] suggests something of the growing concern. His view, which was recently incorporated into a bill before the California legislature, would strip everything except the phrase "reasonable doubt" from the judicial instruction. In the activity surrounding this discussion and in the proposals for change, the phrase "moral certainty" has been singled out as causing the most difficulty. Indeed Justice Mosk himself recently issued a challenge: "I'd like to hear someone attempt to tell . . . [us] what moral certainty is." San Francisco Chronicle , 6 May 1986, p. 9, col. 1. This chapter has suggested that moral certainty and beyond reasonable doubt were originally viewed as synonymous. In this context, elimination of a term which no longer carries any commonly understood meaning probably makes sense. After all, the term "satisfied conscience," which also carried much the same meaning, has for the most part been dropped as belief in the rational and judicial characteristics of "conscience" has waned. There is thus reason and judicial precedent for attempting to make the language of judicial instruction consistent with common usage. Although archaic legal terminology constitutes little problem for legal professionals familiar with legal languages and terms of art, it can be problematic for the layperson who only occasionally serves on criminal juries.

Perhaps because English and Australian jury instructions have not contained the language of moral certainty, discussion in those countries has centered on whether or not judges may, or should attempt to, explain the meaning of "reasonable doubt" to juries—or whether the term should be used at all. Thus, in a much-cited English case of 1952 Lord Goddard C. J. states:

I have never yet heard any Court give a real definition of what is a 'reasonable doubt' and it would be very much better if that expression were not used. Whenever a court attempts to explain . . . the explanation tends to result in confusion rather than clarity. It is far better instead of using the words 'reasonable doubt' and then attempting to say what is a reasonable doubt, to say to a jury: 'You must not convict unless you are satisfied by the evidence given by the prosecution that the offense has been committed.'

R v. Summers , (1952) 1 T.L.R. 1164. English courts still attempt to improve on the traditional formulation.

Australian courts have retained the beyond reasonable doubt formulation, and it is thought undesirable for judges to attempt to enlarge or explain it. See R v. Deathe , (1962) V.R. 650 (Vic. Sup. Ct. F.C.); Harold v. the King , (1941) Q.S.R. 190 (Q. Ct. of Cr. App.). In Dawson v. the continue

Queen , currently the leading Australian case, C. Dixon C. J. indicated it is a

mistake to depart from time-honored formula [beyond reasonable doubt]. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions.

Dawson v. the Queen , 106 Commonwealth Law Reports , 18; A.L.J.R. 360 (1962). See also Brown v. the King , (1913) 17 RR 570; 20 A.L.R. 197; R v. Murray , (1924) V.L.R. 374; 46 A.L.T. 35 (Vic. Sup. Ct. F.C.); Thomas v. the Queen , (1) (1960) C.L.R. 584. See also C.E.W. "Reasonable Doubt in Criminal Cases," Australian Law Journal 1 (1928): 291-292, 372-373. For a review of English and Australian developments, see Sir Richard Eggleston, "Sixth Wilfred Fullegar Memorial Lecture: 'Beyond Reasonable Doubt,'" Monash Law Review 4 (1977): 1-19.

1. Naomi Hurnard not only attempted to trace a tradition of communal accusation throughout the later Saxon and Norman periods, but also suggested that compurgation, rather than the ordeal, was the rule when communal accusation was based solely on circumstantial evidence. Naomi Hurnard, "The Jury of Presentment and the Assizes of Clarendon," English Historical Review 61 (1941): 371-410.

2. It has recently been suggested that early presentment juries were even more concerned with evidentiary matters than Hurnard thought. Roger Groot finds that early presentment juries did more than merely submit those suspected to the ordeal. He believes that they gave their opinion of the accuracy of the accusation and only those they thought truly accused were sent to the ordeal. Roger D. Groot, "The Jury of Presentment before 1215," American Journal of Legal History 26 (1982): 1-24.

3. For parallels between canon law and early grand jury procedures see R. H. Helmholz, "The Early History of the Grand Jury and the Canon Law," University of Chicago Law Review 50 (1983): 613-627.

4. Groot, "Jury of Presentment," 21.

5. Raoul C. Van Caenegem, rejecting Hurnard's contention of a continued existence from Anglo-Saxon times, emphasizes the example of the ecclesiastical courts and Norman institutions as central in the institution of public prosecution of crime as well as in the role of the Crown. "Public Prosecution of Crime in Twelfth-Century England," in Church and Government in the Middle Ages , ed. C. N. L. Brooke et al. (Cambridge, 1976), continue

41-76. See also J. W. Baldwin, "The Intellectual Preparation for the Canon of 1215 against Ordeals," Speculum 36 (1961): 613-663.

6. Groot, "Jury of Presentment," 4, citing Glanvill, The Treatise on the Laws and Customs of the Realm of England Commonly called Glanvill , ed. D. D. G. Hall (1965), 174, 175.

7. In practice this meant reporting community suspicion and rumor. But they also appeared to have evaluated the accusation. Before the accused underwent the ordeal, the jurors personally had to suspect the accused. Thus a good man suspected by the community rarely faced the ordeal. In most cases analyzed by Groot, the jurors' opinion of the guilt of the accused can be distinguished textually from the accusation. Groot calls this "an adjudicatory act," and suggests that the verdict of suspected or not suspected was in many respects equivalent to guilty or not guilty, even though the decision was at this stage self-informing—not weighing testimony. He has called this a "medial," rather than "final," decision in that those suspected would still be required to make their proof by ordeal. Groot, "Jury of Presentment," 6, 11, 23, 23n, 24.

8. Roger Groot, "The Early Thirteenth-Century Criminal Jury," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 , ed. J. S. Cockburn and Thomas A. Green (Princeton, 1988), 8, 22.

9. Richard Helmholz suggests that the prosecution of offenders on the basis of "public fame" was borrowed by the Assize of Clarendon from the ecclesiastical courts. Helmholz, "The Early History of the Grand Jury and the Canon Law," 620, 624. See also Richard Wunderli's discussion of ill fame as a basis for prosecution in fifteenth-century ecclesiastical courts. "London Church Courts and Society on the Eve of the Reformation," Speculum , Anniversary Monographs, no. 7 (Cambridge, Mass., 1981): 31-32, 40.

10. Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 , (Chicago, 1985), 22, 25-26; R. B. Pugh, "Some Reflections of a Medieval Criminologist," Proceedings of the British Academy 59 (1973): 83-104.

11. John Langbein has suggested that as local magistrates undertook a more active prosecutorial role, they "sealed the fate of the jury of accusation." The task of gathering and assessing information and suspicion, crucial to deciding whether or not a trial would take place, had passed to the justices of the peace by the later sixteenth century and had insured the passivity of both grand and petty juries. Grand juries were, he argues, thus reduced to largely ceremonial functions. John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, Mass., 1974), 119, 120, 127, 127n. break

If Langbein is correct, there would be little reason to concern oneself with the evidentiary standard of the grand jury. Why would one bother to investigate an institution of so little importance? First, its ideological status alone suggests that its study cannot be ignored. In addition, Thomas Green's investigation of trial jury discretion suggests that grand juries were unlikely to have become entirely passive instruments. Petty juries carefully exercised discretionary and nullification powers to insure results that seemed reasonable, particularly in cases involving life and death. Early modern trial juries frequently undervalued stolen goods to avoid inflicting the death penalty and distinguished between intentional homicide and manslaughter. Green, Verdict According to Conscience , 13, 144.

J. S. Cockburn, too, believes that grand juries had become largely ceremonial and rarely returned ignoramus verdicts. He, however, found that committing magistrates were often not present at the assizes, and thus could not have played an active prosecutorial role. J. S. Cockburn, A History of English Assizes, 1558-1714 (Cambridge, 1972), 73-75, 77-79.

If petty jurors, usually of lower social status than grand jurors, exercised discretion in the presence of judges of considerably higher social standing and status, it seems unlikely that grand jurors, typically chosen from the more respected and powerful members of the community, would adopt a passive stance toward justices of the peace who were typically their social equals. For the social composition of sixteenth- and seventeenth-century grand and petty juries, see P.G. Lawson, "Lawless Juries? The Composition and Behavior of Hertfordshire Juries, 1573-1624," in Twelve Good Men , ed. Cockburn and Green, 122, 123, 124, 127, 130. Lawson rejects the notion that grand juries were passive (139, 140). See also Stephen Roberts, "Jurors and the Middling Sort: Recruitment and Performance at Devon Quarter Sessions, 1649-1670," in Twelve Good Men , 185, 188-189, 190.

Recent research suggests that the grand jury continued to be an important part both of the system of criminal justice and of local regulation. Cynthia Herrup's study of seventeenth-century Sussex indictments reveals that 25 percent of suspicions brought to the grand juries were rejected. She concludes that the comment in the early eighteenth-century A Guide to Grand Juries (prominently cited by Langbein) that states that the endorsement of private accusations were "a matter of course, a ceremony of matter of form," did not apply to grand juries she studied. See Cynthia Herrup, "The Common Peace: Legal Structure and Legal Substance in East Sussex, 1594-1640" (Diss., Northwestern University, 1982), 3. See also Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge, 1987). The continue

Guide was a polemical work, and, thus, should not be taken as clear evidence of contemporary practice. Herrup's study indicates that grand jurors continued to play a significant role in the criminal process.

Aggressive investigation is also suggested by J. S. Morrill's study of mid-seventeenth-century Cheshire grand juries. Morrill, like Herrup, rejects the view that seventeenth-century grand juries were subservient, ignorant, and conservative. See The Cheshire Grand Jury, 1630-1660: Government and Society during the English Revolution (Oxford, 1974), 21, 45. S. K. Roberts's study, which like Morrill's was concerned primarily with presentments and local administration, also suggests an active, inquiring body. Bills of indictment were quite likely to be rejected by the grand jury. See S. K. Roberts, "Initiative and Control: The Devon Quarter Sessions Grand Jury, 1649-1670," Bulletin of the Institute for Historical Research 57 (November, 1984): 167. See also Stephen Roberts, "Jurors and the Middling Sort," 189-190, 193. J. A. Sharpe's study of the Essex assize and quarter session records of 1620-1680 also indicates that grand juries often refused to indict on a wide range of criminal charges. See "Enforcing the Law in the Seventeenth-Century Village," in Crime and the Law: The Social History of Crime in Western Europe Since 1500 , ed. V. Gatrell et al. (London, 1980), 94-97, 108, 117, 118. Somerset grand juries found many bills ignoramus . Thomas Barnes, Somerset Assize Orders, 1629-1640 , Somerset Record Society 65 (London, 1959): xix. See also Alan Macfarlane and Sarah Harrison, The Justice and the Mare's Ale: Law and Disorder in Seventeenth-Century England (Cambridge, 1981), 99-100; J. S. Cockburn, "Trial by the Book? Fact and Theory in Criminal Process, 1558-1625," in Legal Records and the Historian , ed. J. H. Baker (London, 1978), 71. Francis Snyder, who has studied eighteenth-century criminal prosecution, rejects the view that justices of the peace had become public prosecutors. See "Using the Criminal Law, 1750-1850," in Policing and Prosecution in Britain, 1750-1850 , ed. Douglas Hay and Francis Snyder (Oxford, 1989), 24-25.

12. William Lambarde and Local Government: His "Ephemeris" and Twenty-Nine Charges to Juries and Commissions , ed. Conyers Read (Ithaca, 1962), 59, 120.

13. H. Bracton, On the Laws and Customs of England , trans. and ed. S. E. Thorne, 4 vols. (Cambridge, Mass., 1968), 2: 403. Suspicion was thus distinct from rumor. It was "not a vague notion but arose when rumour originates among good and responsible men. As also from a precedent act, which must stand until the contrary is proved."

14. Herrup, "The Common Peace," 5. See also Herrup, "New Shoes and Mutton Pies: Investigative Responses to Theft in Seventeenth-Century East Sussex," The Historical Journal 27 (1984): 811-830. break

15. Ibid., 6, 10-12. They were wary about accusations which might have been motivated by revenge. Although technically they were only to hear evidence for the prosecution, they might hear evidence for the defense if countercharges had been presented by the accused.

14. Herrup, "The Common Peace," 5. See also Herrup, "New Shoes and Mutton Pies: Investigative Responses to Theft in Seventeenth-Century East Sussex," The Historical Journal 27 (1984): 811-830. break

15. Ibid., 6, 10-12. They were wary about accusations which might have been motivated by revenge. Although technically they were only to hear evidence for the prosecution, they might hear evidence for the defense if countercharges had been presented by the accused.

16. The grounds for suspicion in cases of felonies and murder are laid out in Richard Crompton's 1606 enlargement of Anthony Fitzherbert's L'office et auctoritie de justices de peace (London, 1606), 98-101. Fitzherbert was published originally in law French in 1538. There were many English editions. Crompton's enlarged editions were frequently printed. Stanford, citing legislation of Henry VIII, uses the language of "vehement suspicion" (London, 1560), 89.

The widely distributed handbooks prepared for the justice of the peace yield remarkably little information. Though they typically contain sections on indictment, they offer little guidance on how grand jurors' decisions should be formed. William Lambarde's Eirenarcha, or Of the Office of the Justice of the Peace (London, 1581) suggests little more than that the indictment consists of finding a bill of accusation to be true. Crompton's L'office , which contains considerable material on grand jury charges and exhortations, does not deal with evidentiary matters.

John Cowell's Interpreter (London, 1607) merely notes that an ignoramus was appropriate when grand jurors "mislike their evidence, as defective or too weak to make good the presentment" (7). William Fulbecke, comparing legal words in the common and the civil law, indicates the term accusatio was equivalent to a presentment. William Fulbecke, A Direction or Preparative to the Study of the Law , 1600 ed. (London, 1620), 72.

17. Conrad Russell, Parliaments and English Politics, 1621-1629 (Oxford, 1979) 177, 177n, 302.

18. Fulbecke, Direction or Preparative , 75-76. These statements also appear in the 1600 ed.

19. Michael Dalton, The Country Justice (London, 1635), chap. 186.

20. Sir Edward Coke, Institutes of the Lawes of England (London, 1628-1644), 3:25. William Sheppard, the leading producer of legal materials in the Civil War and interregnum era, noted, like Cowell, that an ignoramus was appropriate when the grand jury "mislike their evidence as defective or too weak to make good the point." An Epitome of all the Common and Statute Laws (n.p., 1656), 384. No standard is suggested for the billa vera . This volume, which contains a law dictionary, was published at the command of Lord Protector Oliver Cromwell.

21. John Cotta, The Trial of Witchcraft (London, 1616), 80-81. The volume was dedicated to Sir Edward Coke and to the judiciary more generally.

22. Ibid., 85. break

21. John Cotta, The Trial of Witchcraft (London, 1616), 80-81. The volume was dedicated to Sir Edward Coke and to the judiciary more generally.

22. Ibid., 85. break

23. Richard Bernard, Guide to Grand Jurors in Cases of Witchcraft (London, 1627), 25. This book was also dedicated to the legal profession.

24. Ibid.

25. Ibid., 25, 42, 46, 53, 233. See also "A Dialogue Concerning Witches," in The Witchcraft Papers , ed. Peter Haining (London, 1974), 92-107.

23. Richard Bernard, Guide to Grand Jurors in Cases of Witchcraft (London, 1627), 25. This book was also dedicated to the legal profession.

24. Ibid.

25. Ibid., 25, 42, 46, 53, 233. See also "A Dialogue Concerning Witches," in The Witchcraft Papers , ed. Peter Haining (London, 1974), 92-107.

23. Richard Bernard, Guide to Grand Jurors in Cases of Witchcraft (London, 1627), 25. This book was also dedicated to the legal profession.

24. Ibid.

25. Ibid., 25, 42, 46, 53, 233. See also "A Dialogue Concerning Witches," in The Witchcraft Papers , ed. Peter Haining (London, 1974), 92-107.

26. See Donald Veall, The Popular Movement for Law Reform, 1640-1660 (Oxford, 1970); Stuart Prall, The Agitation for Law Reform during the Puritan Revolution (The Hague, 1966); Mary Cotterell, "Interregnum Law Reform: The Hale Commission of 1652," English History Review 83 (1968): 1689-1704; Barbara Shapiro, "Law Reform in Seventeenth-Century England," American Journal of Legal History 19 (1975): 280-312.

27. See Barbara Shapiro, Probability and Certainty in Seventeenth-Century England: A Study of the Relationships between Natural Science, Religion, History, Law and Literature (Princeton, 1983), passim.

28. Institutional changes, too, may have been at work. Before the early modern era, grand juries often relied on presentments from hundred juries in finding indictments. Hundred juries reported the "common fame," or voice of the community's suspicion, and grand juries, therefore, were often determining only whether these were the community's suspicions. As hundred jurors declined, and there does not seem to be clear evidence of when or how this decline occurred, grand jurors were increasingly engaged in evaluating charges by persons they did not know, against persons they did not know, and about events they did not know. They were no longer in a position to know if the charges were validated by common fame. The decline of the hundred jury may thus have played some role in provoking discussion of grand jury standards. I owe this information and insight to Norma Landau.

29. [Sir John Somers], The Security of English-Men's Lives (London, 1681), 17-18.

30. The Diary of John Milward , ed. Caroline Robbins (Cambridge, 1935), 167-168, 170. See also The Peoples Ancient and Just Liberties Asserted (London, 1670), 60; Somers, Security of English-Men's Lives , 18. Kelyng insisted grand jurors limit themselves to matters of fact and not concern themselves with matters of law. This issue was raised because grand jurors changed charges of murder to manslaughter. Diary of John Milward , 169.

31. Diary of John Milward , 169. Thomas Green suggests that Kelyng's treatment of petty juries was an exaggeration of current practice but not an exception to it. Juries and grand juries were attempting to undermine the effect of the Conventicle Act, especially in Quaker cases, and were continue

continuing to reduce murder charges to manslaughter. Green, Verdict According to Conscience , 209, 209n, 248-249.

32. Matthew Hale, The History of the Pleas of the Crown , 1800 ed., 2 vols. (London, 1736), 2: 312.

33. Peoples Ancient and Just Liberties Asserted , 60.

34. Diary of John Milward , xcii, 185, 190-191.

35. For a discussion of Vaughan and of Bushel's case, see Green, Verdict According to Conscience , 200-264; John A. Phillips and Thomas C. Thompson, "Jurors v. Judges in Later Stuart England: The Penn-Mead Trial and 'Bushell's Case'," Law and Inequality: A Journal of Theory and Practice 4 (1986): 189-229; Diary of John Milward , 88-89, 159-160, 162-163, 167-170.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

42. Hale, History of the Pleas of the Crown , 2: 157, 158. While there are a number of extant printed grand jury charges, these, as earlier charges, omit almost any reference to the criteria for billa vera and ignoramus endorsements. Charges continue to focus on jury qualifications and attitudes, provide an outline and brief description of indictable crimes, and direct the grand jurors' attention to particularly pressing problems.

43. See Office of the Clerk of the Assize (London, 1676, 1672, and 1682) and The Office of the Clerk of the Peace (London, 1676). Although neither one provides guidance on evidentiary standards, they do suggest that something close to the probability standards of Babington and Hale were widely used. The assize guide notes "if upon the Evidence the grand jury have good cause to find the Bill," then they endorse it billa vera , and "if they have no colour to find the same," then they write ignoramus. Clerk of the Assize , 1682 ed., 34. "Good Cause" and "no colour" language reappear in Clerk of the Peace , 1681 ed., 144. Another manual, however, indicated that an ignoramus was appropriate if the grand jury continue

were "not satisfied by the Evidence." J. W., Officium Clerici Pacis (London, 1686), 52.

In one of the Popish Plot trials, grand jurors were advised that they required only "probable evidence" because their verdict was only an "accusation." Trial of Reading (London, 1679), 2. In the 1678 murder indictment of the Earl of Pembroke, the lord high steward insisted that Pembroke was not being charged "by common voice and fame." He indicated that indictment was "no more than a bare accusation," vehemently declaring "God Forbid, they who neither did not hear the evidence on both sides, should no way prejudice your trial by their partial examination." T. B. Howell, ed., Complete Collection of State Trials , 34 vols. (London, 1809-1826), 9: 1309, 1317.

We can gain insight from impeachment proceedings, which sometimes were likened to grand jury indictments. In the debate on Clarendon's impeachment (1667), the comparison between impeachment accusation and indictment was both made and rejected. Diary of John Milward , 34. Sir John Holland argued against the view that "an accusation without examination or proof" was enough for indictment and insisted that the charges must "be true." Some insisted that witnesses be examined and that proof was required, while others felt that an accusation based on common fame was sufficient. Still others complained about inadequate secrecy, another issue which became important in the grand jury debates of 1680-1682. Diary of John Milward , 34, 101, 102, 111, 143, 144, 232, 234. Though common fame implied something stronger than rumor for Serjeant Maynard, it fell short of provable fact. "Common fame was no ground to accuse a man when the matter of Fact is not clear. To say an Evil is done, therefore this man did it, is strange in Morality, more in Logick." Howard Nenner, By Colour of Law: Legal Culture and Constitutional Politics in England, 1660-1689 (Chicago, 1977), 12, citing Proceedings . . . Touching the Impeachment . . . of Clarendon .

The grand jury analogy was also made in impeachment proceedings against Sir Edward Seymour. Sir Leonine Jenkins insisted that there must be "moral assurance" of the truth of the charge. 8 State Trials , 127, 149. Here, again, the House of Commons was unclear as to what standard was to guide them.

The House of Lords had debated several decades earlier whether or not common fame provided a sufficient basis to accuse the duke of Buckingham. Conrad Russell, Parliaments and English Politics, 1621-1629 (Oxford, 1979), 302. For Sir Francis Bacon's impeachment see 2 State Trials , 1091, 1093.

44. [Francis Smith], An Impartial Account of the Tryal of Francis Smith (London, 1680), preface, 5. break

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

50. A Modest Vindication of the Proceedings of the late Jury at the Old Baily, who returned the Bill against Stephen Colledge Ignoramus (London, 1681), 1.

51. The Letter of the Grand Jury of Oxford to the Grand Jury of London (London, 1681), 1.

52. The Tryals of Several Notorious Malefactors . . . at Old Bailey, October 17-19, 1681 (London, 1682), 3. W. J.'s Letter from Ignoramus (London, 1682) expressed great distress that those who swore against Rouse had been examined and cross-examined in open court, "a thing not known in our days." Although the author thought there might be "a few precedents of like nature in former Ages," he thought that the practice was not in keeping with present practice. In the Colledge case the witnesses were heard in court but examined privately (3).

53. Tryals of Several Notorious Malefactors , 3.

54. "Proceedings at the Old Bailey upon a Bill of Indictment against Anthony, Earl of Shaftesbury," 8 State Trials , 759, 762, 770.

55. Ibid.

56. Ibid., 772, 802-803. The grand jury had asked if any of the prosecution witnesses had been indicted. It wished to discredit the witnesses to avoid a repetition of the Colledge situation. The jury foreman probed the witnesses. J. R. Jones, The First Whigs: The Politics and the Exclusion Crisis, 1678-1683 (London, 1970), 192-192n. Hale's still unpublished continue

History of the Pleas of the Crown endorsed grand jury evaluation of witness credibility.

54. "Proceedings at the Old Bailey upon a Bill of Indictment against Anthony, Earl of Shaftesbury," 8 State Trials , 759, 762, 770.

55. Ibid.

56. Ibid., 772, 802-803. The grand jury had asked if any of the prosecution witnesses had been indicted. It wished to discredit the witnesses to avoid a repetition of the Colledge situation. The jury foreman probed the witnesses. J. R. Jones, The First Whigs: The Politics and the Exclusion Crisis, 1678-1683 (London, 1970), 192-192n. Hale's still unpublished continue

History of the Pleas of the Crown endorsed grand jury evaluation of witness credibility.

54. "Proceedings at the Old Bailey upon a Bill of Indictment against Anthony, Earl of Shaftesbury," 8 State Trials , 759, 762, 770.

55. Ibid.

56. Ibid., 772, 802-803. The grand jury had asked if any of the prosecution witnesses had been indicted. It wished to discredit the witnesses to avoid a repetition of the Colledge situation. The jury foreman probed the witnesses. J. R. Jones, The First Whigs: The Politics and the Exclusion Crisis, 1678-1683 (London, 1970), 192-192n. Hale's still unpublished continue

History of the Pleas of the Crown endorsed grand jury evaluation of witness credibility.

57. 8 State Trials , 802-803.

58. 4 State Trials , 1311.

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

72. Henry Care, English Liberties, or The Free-Born Subjects Inheritance (London, n.d.). The Wing catalog indicates a 1680 date, but references to the Shaftesbury proceedings and to an Old Bailey trial suggest a 1681 or 1682 first printing. Other editions appeared in 1682, 1691, and 1700. Enlarged editions were printed in 1703, 1719, and 1721.

Care emphasizes diligent inquiry, the search for truth, the evaluation of witness credibility, the importance of the vicinage requirement, the problem of malice, the rejection of Pemberton's probability standard, and independence from the judiciary. He, like Somers, insists that if grand jurors were not Judges of Evidence, "they were nothing" (216). He explicitly adopts the satisfied conscience standard. "People may tell you that you ought to find a Bill upon any probable Evidence," or "tis a matter of Course, of ceremony, a Business of forms, only an Accusation. . . . But if this were all, to what purpose have we Grand Juries at all?" Why, he queried, would the "wisest and best men be chosen, why would they be so strictly sworn?" A billa vera meant, "It is True," "we are fully satisfied" (219-220). He, like most Whig pamphleteers, insisted that grand and petty juries were judges of law as well as fact and was hostile to the judiciary (207-208).

For another Whig discussion of grand juries see the anonymous Earl of Shaftesbury's Grand Jury Vindicated from the Aspersions Cast upon them in the late Address from Some of the Middle Temple (London, 1682). Edmond Saunders, who was thought to be the author, was soon appointed to the bench. The tract, which assembled the usual collection of Whig arguments, rejected the probability standard and relied heavily on Vaughan's opinion in Bushel's case.

73. Guide to English Juries, Setting forth Their Power and Antiquity by a Person of Quality (London, 1682). The Guide was reprinted in 1689, 1699, 1702 and 1725.

74. The author claimed the clerks' interest in fees led them to multiply the number of indictments. They were thus motivated "to say" that "colour of Evidence" or "probability of a thing being" true was sufficient. They also insisted that what they did "is but a matter of course, a Ceremony, a matter of form, barely an Accusation." Ibid., 53, 73. See also 77, 79-82; cf., Office of the Clerk of the Assize , 32; The Office of the Clerk of the Peace , 144.

73. Guide to English Juries, Setting forth Their Power and Antiquity by a Person of Quality (London, 1682). The Guide was reprinted in 1689, 1699, 1702 and 1725.

74. The author claimed the clerks' interest in fees led them to multiply the number of indictments. They were thus motivated "to say" that "colour of Evidence" or "probability of a thing being" true was sufficient. They also insisted that what they did "is but a matter of course, a Ceremony, a matter of form, barely an Accusation." Ibid., 53, 73. See also 77, 79-82; cf., Office of the Clerk of the Assize , 32; The Office of the Clerk of the Peace , 144.

75. To endorse a billa vera they must be "satisfied" that the evidence is true or know it themselves. Guide to English Juries , 82. See also 52. Indeed, they "must know beyond all doubt" before they provide such continue

endorsement (68). "Mature and settled judgments" by "good and great deliberation, considerateness, Reasoning, and Satisfaction according to one's own Conscience" were required for a billa vera (46). To reach that state they must inquire diligently as their oath required. They must "True Presentment make," not a "Probable" one. They must weigh the evidence and not reach a decision according to "Presumption." The author also rejects the suggestions that all the grand jury does is "present in form" and that its presentment is "only suppositious, . . . and nothing positive or certain." (54-56).

76. Ibid., 7-8, 56-57. See also 63-64, 132.

77. Ibid., 71, 73, 76.

75. To endorse a billa vera they must be "satisfied" that the evidence is true or know it themselves. Guide to English Juries , 82. See also 52. Indeed, they "must know beyond all doubt" before they provide such continue

endorsement (68). "Mature and settled judgments" by "good and great deliberation, considerateness, Reasoning, and Satisfaction according to one's own Conscience" were required for a billa vera (46). To reach that state they must inquire diligently as their oath required. They must "True Presentment make," not a "Probable" one. They must weigh the evidence and not reach a decision according to "Presumption." The author also rejects the suggestions that all the grand jury does is "present in form" and that its presentment is "only suppositious, . . . and nothing positive or certain." (54-56).

76. Ibid., 7-8, 56-57. See also 63-64, 132.

77. Ibid., 71, 73, 76.

75. To endorse a billa vera they must be "satisfied" that the evidence is true or know it themselves. Guide to English Juries , 82. See also 52. Indeed, they "must know beyond all doubt" before they provide such continue

endorsement (68). "Mature and settled judgments" by "good and great deliberation, considerateness, Reasoning, and Satisfaction according to one's own Conscience" were required for a billa vera (46). To reach that state they must inquire diligently as their oath required. They must "True Presentment make," not a "Probable" one. They must weigh the evidence and not reach a decision according to "Presumption." The author also rejects the suggestions that all the grand jury does is "present in form" and that its presentment is "only suppositious, . . . and nothing positive or certain." (54-56).

76. Ibid., 7-8, 56-57. See also 63-64, 132.

77. Ibid., 71, 73, 76.

78. Roger North, Examen , 1740 ed. (London, 1685), 113, 114.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

84. Joseph Keble's Assistance to Justices of the Peace (London, 1683) indicated that grand jurors were to evaluate witness credibility. They were not, however, to try an issue but to "offer an Information, the truth or falsehood whereof" would be tried by the petty jury (264).

85. Gilbert Burnet, History of My Own Times , ed. Osmond Airy, 2 vols. (Oxford, 1900), 2: 302-303.

86. Poems on Affairs of State: Augustan Satirical Verse, 1660-1714 , ed. H. S. Schless, 7 vols. (New Haven, 1968), 3: 76-95. See also Poems on Affairs of State , vols. 3 and 4, passim; Ignoramus-justice (1682); The Ignoramus Ballad (1681); Ignoramus: an Excellent New Song (1681); A New Ignoramus (1681). The prologue and epilogue of Dryden's Duke of Guise (1683) also refers to ignoramus juries. Another series of 1682 political poems focused on the London and Middlesex shrieval election. See Poems on Affairs of State , 3: 207ff.

87. Poems on Affairs of State , 3: 80.

88. See W. J. Jones, Politics and the Bench: The Judges and the Origins of the English Civil War (London, 1971).

89. See A. F. Havinghurst, "The Judiciary and Politics in the Reign of Charles II," Law Quarterly Review 66 (1950): 62-78, 229-252.

90. See for example The Triumph of Justice over Unjust Judges (London, 1681).

91. See Norma Landau, The Justices of the Peace, 1679-1760 (Berkeley, 1984). break

92. But see The Compleat Statesman (London, 1683). About thirty pages are devoted to grand juries and the Shaftesbury proceedings.

93. Sir James Astry, A General Charge to all Grand Juries (London, 1703; reprint, 1725), 14. Astry emphasized that Babington's volume had been licensed by the Lord Keeper and "has been since approv'd of by all the learned Judges" and was "often given in Charges by them in their Circuits."

94. Ibid., 11, 13. A later handbook, The Complete Juryman, or a Compendium of the Laws Related to Jurors , issued in 1744 and 1752, does not discuss the evidentiary requirements of grand juries.

93. Sir James Astry, A General Charge to all Grand Juries (London, 1703; reprint, 1725), 14. Astry emphasized that Babington's volume had been licensed by the Lord Keeper and "has been since approv'd of by all the learned Judges" and was "often given in Charges by them in their Circuits."

94. Ibid., 11, 13. A later handbook, The Complete Juryman, or a Compendium of the Laws Related to Jurors , issued in 1744 and 1752, does not discuss the evidentiary requirements of grand juries.

95. John Hawles, Remarks upon the Trial of Fitzharris (London, 1689). Hawles discusses a number of treason trials and the Shaftesbury grand jury proceedings.

96. Ibid., 46, 47.

97. Ibid., 48. He denied Chief Justice Pemberton's contention that grand juries could not consider the credibility of witnesses and opposed the practice of allowing King's Counsel to be present and give advice during grand jury proceedings.

95. John Hawles, Remarks upon the Trial of Fitzharris (London, 1689). Hawles discusses a number of treason trials and the Shaftesbury grand jury proceedings.

96. Ibid., 46, 47.

97. Ibid., 48. He denied Chief Justice Pemberton's contention that grand juries could not consider the credibility of witnesses and opposed the practice of allowing King's Counsel to be present and give advice during grand jury proceedings.

95. John Hawles, Remarks upon the Trial of Fitzharris (London, 1689). Hawles discusses a number of treason trials and the Shaftesbury grand jury proceedings.

96. Ibid., 46, 47.

97. Ibid., 48. He denied Chief Justice Pemberton's contention that grand juries could not consider the credibility of witnesses and opposed the practice of allowing King's Counsel to be present and give advice during grand jury proceedings.

98. A Display of Tyranny (1689), aimed primarily at the Tory judiciary, again referred to the Shaftesbury case. The author, like Hawles, was outraged at judicial denial that grand jurors could consider the credit of witnesses, and insisted on using Vaughan's language in Bushel's case that grand jurors "were within the compass of their own Understandings and consciences to have their Judgements" (79).

99. Thomas Wood, Institute of the Laws of England , 2d ed. (The Savoy, 1722), 823.

100. Matthew Hale, History of the Pleas of the Crown , 2: 157-158.

101. Ibid. William Hawkins, another authoritative treatise writer, indicates only that an indictment is an "Accusation, . . . which is found to be true." A Treatise of the Pleas of the Crown , 1771 ed. (London, 1717), 209.

100. Matthew Hale, History of the Pleas of the Crown , 2: 157-158.

101. Ibid. William Hawkins, another authoritative treatise writer, indicates only that an indictment is an "Accusation, . . . which is found to be true." A Treatise of the Pleas of the Crown , 1771 ed. (London, 1717), 209.

102. Henry Fielding, Charge Delivered the Grand Jury (London, 1749), 25-26, citing Hale, History of the Pleas of the Crown , 2: 157.

103. Ibid., 27. London grand jurors, however, often served frequently. Veteran grand jurors might be familiar with criminous thief takers who were given monetary rewards for apprehending thieves. The latter frequently encouraged criminal activity so that they might report it.

102. Henry Fielding, Charge Delivered the Grand Jury (London, 1749), 25-26, citing Hale, History of the Pleas of the Crown , 2: 157.

103. Ibid., 27. London grand jurors, however, often served frequently. Veteran grand jurors might be familiar with criminous thief takers who were given monetary rewards for apprehending thieves. The latter frequently encouraged criminal activity so that they might report it.

104. Herbert Packer, "Two Models for the Criminal Process," University of Pennsylvania Law Review 113 (1964): 1-68.

105. William Blackstone, Commentaries on the Laws of England , 1st American ed., 1771-1772, 4 vols. (London, 1765), 2: 301, 303. break

106. Richard Woodeson, A Systematic View of the Laws of England , 3 vols. (London, 1792), 2: 559.

107. Ibid., 2: 558, 559.

106. Richard Woodeson, A Systematic View of the Laws of England , 3 vols. (London, 1792), 2: 559.

107. Ibid., 2: 558, 559.

108. John Shore, A Charge Delivered at the Quarter Sessions of the Peace . . . April 5, 1714 (London, 1714), 21-28. See also 8. The charge was published at the request of the judges.

109. The Charge of William Cowper to the Grand Jury of Westminster (London, 1719), 33-35.

110. The Charge of Daniel Dolbins to the Grand Jury (London, 1725), 5.

111. The Charge of Daniel Dolbins (London, 1725), 4. (Not the same charge as previous note.)

112. Sir John Gonson, Five Charges to Several Grand Juries , (London, 1740), 10-11. Many early eighteenth-century charges, especially those given to Middlesex and Westminster grand juries, were highly politicized. Many were presented with bills of indictment against those publishing Tory or Jacobite propaganda. I owe this information to Norma Landau.

113. The Charge of T. Morley (1749), 5. Chief Justice Morley of the King's Bench in Ireland, gave this charge in the course of a highly emotional libel case. Morley indicated that grand juries must "think the accusation probable." See also A Critical Review of the Liberties of the Subject , 2nd ed. (Dublin, 1750). Dismissals on the basis of evidence favoring the defendant were reported to be frequent. Richard Cox, A Charge Delivered to the Grand Jury (Dublin, 1758), 27-28.

James Wilson indicated that the probability standard was very common. It is also suggested by one of the few reports at the Old Bailey sessions that mentions grand jury standards. The "probable guilt of a prisoner is sufficient to find a bill." Whole Proceedings at Old Bailey February, 1777 (London, 1777), 97. See also Charges to Grand Juries (Worcester, 1780), 8, 11.

114. Whole Proceedings at Old Bailey February, 1777 , 97.

115. Richard Burke, Charge Delivered to the Grand Jury (Bristol, 1793), 6-7.

116. John Beattie, Crime and the Courts in England, 1660-1800 (Princeton, 1986), 83. See also 401. The figures are from the Surrey assizes.

117. For the composition of grand juries see Ibid., 320-331. See also P. J. R. King, "'Illiterate Plebians, Easily Misled': Jury Composition, Experience and Behavior in Essex, 1735-1815," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 , ed. J. S. Cockburn and Thomas Green (Princeton, 1988), 278-279, 283, 294; Douglas Hay, "The Class Composition of the Palladium of Liberty: Trial Jurors in the continue

Eighteenth Century," in Twelve Good Men , 311, 344; John Beattie, "London Juries in the 1690s," in Twelve Good Men , 234, 235, 244.

116. John Beattie, Crime and the Courts in England, 1660-1800 (Princeton, 1986), 83. See also 401. The figures are from the Surrey assizes.

117. For the composition of grand juries see Ibid., 320-331. See also P. J. R. King, "'Illiterate Plebians, Easily Misled': Jury Composition, Experience and Behavior in Essex, 1735-1815," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 , ed. J. S. Cockburn and Thomas Green (Princeton, 1988), 278-279, 283, 294; Douglas Hay, "The Class Composition of the Palladium of Liberty: Trial Jurors in the continue

Eighteenth Century," in Twelve Good Men , 311, 344; John Beattie, "London Juries in the 1690s," in Twelve Good Men , 234, 235, 244.

118. Beattie, Crime and the Courts , 321-327. Blackstone described grand jurors as "gentlemen of the best figures in the county." Commentaries , 4: 299.

119. Landau, Justices of the Peace , 54-56. By the second decade of the eighteenth century, one-third to one-half of grand jurors were justices of the peace. They still dominated grand jury panels in the 1750s. Landau suggests they were probably less deferent to judges than they had been in the past (60). See also Cockburn, History of the English Assizes , 114-115, 123, 240.

120. Leroy Clark, The Grand Jury: The Use and Abuse of Political Power (New York, 1975), 13. Maryland and Connecticut documents mentioned grand juries in 1637 and 1641 respectively. There is no evidence of the jury in New York before 1681. The report of a 1666 Maryland grand jury indicated that grand juries met privately and considered the depositions of sworn witnesses which had been taken by the justices of the peace. Raphael Semmes, Crime and Punishment in Early Maryland (Baltimore, 1938), 21-22; Richard Younger, The People's Panel: The Grand Jury in the United States, 1634-1941 (Providence, 1963), 4-20. See also Morris Ploscowe, "Development of Present Day Criminal Procedures in Europe and America," Harvard Law Review 48 (1935): 433-473.

121. In 1686 the governor of Virginia wrote several letters to England requesting information on the proper form of grand jury instructions. Ploscowe, "Development of Present Day Criminal Proceedings," 468, 468n.

122. Richard Burn, The Justice of the Peace and Parish Officer , 1772 ed. (London, 1754), 2: 453-454.

123. Richard Starke, Office and Authority of the Justice of the Peace (Williamsburg, 1774), 214; William Hening, The New Virginia Justice (Richmond, 1795), 250; An Abridgement of Burn's, Justice of the Peace and Parish Officer (Boston, 1773), 124.

124. Younger, People's Panel , 26-28. John Peter Zenger was eventually brought to trial by a prosecutor's information after grand juries twice refused to indict.

125. John Hawles's Englishman's Right: A Dialogue Between a Barrister at Law and a Juryman was the first American reprint of any English law book. It was published in Boston in 1693 and reprinted again in American in 1772, 1788, and 1806. Care's English Liberties was printed in Boston in 1686. Five thousand copies were seized. It was printed again in the colonies in 1721 and 1774. Morris Cohen, "Legal Literature in Colonial Massachusetts" (Unpublished manuscript), 16-18. break

126. Excerpts from the most approved Authorities . . . with respect to the Office and Duty of Grand Juries (n.p., n.d.), 22-23, 25, 32-33. See also 34-35. See also British Liberties, or the Freeborn Subject's Inheritance (Boston, 1776), 369-370, 377-381, 384-391.

127. We should be reminded, however, that institutions might function differently in different political contexts. Thus grand juries and juries in the American colonies did not behave like those in Ireland. Different selection processes in the two imperial jurisdictions meant that Irish grand and petty juries were more compliant and yielded more proimperial indictments and convictions than did their American counterparts. See John Reid, In a Defiant Stance: The Condition of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution (Philadelphia, 1977). The tension between the Whig and Tory standards is to be seen in the New York trial of Nicholas Bayard (1702). In this case the solicitor general insisted that the grand jury was to inquire only for the king and "to receive or send for no other evidence than what are brought for the King." Counsel for the defense then queried, "And how shall the truth be known, if the grand jury are permitted to have no other evidence but what are brought 'ex parte Regis?'" and suggested that such a procedure was contrary to the grand juror's oath to find the truth. The Crown response was precisely what might be anticipated. "All the books speak of the king's evidence only, and agree, that the grand jury may and ought to find upon probable evidence, as appears in Babbington [sic]." 14 State Trials , 471-481.

128. Younger, People's Panel , 44-55.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

134. Respublica v. Schaeffer, 1 Dallas, 237.

135. Respublica v. Schaeffer, at 237.

136. See Marvin E. Frankel and Gary P. Naftalis, The Grand Jury: An Institution of Trial (New York, 1977), 12-13.

137. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 210, 212.

138. Ibid., 2: 212-213.

139. Ibid., 2: 213.

140. Ibid., 2: 215-222.

137. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 210, 212.

138. Ibid., 2: 212-213.

139. Ibid., 2: 213.

140. Ibid., 2: 215-222.

137. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 210, 212.

138. Ibid., 2: 212-213.

139. Ibid., 2: 213.

140. Ibid., 2: 215-222.

137. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 210, 212.

138. Ibid., 2: 212-213.

139. Ibid., 2: 213.

140. Ibid., 2: 215-222.

141. Charles Cottu used the Continental language of "presumption" to describe English grand jury standard. These must be assez fortes to continue

find a true bill. The Administration of Criminal Justice in England (London, 1822), 49, 54, 67.

142. Joseph Chitty, A Practical Treatise on the Criminal Law , Philadelphia, 1819 ed., 3 vols. (London, 1816), 1: 261.

143. Thomas Starkie, Practical Treatise on the Law of Evidence , 1853 ed., 2 vols. (London, 1824), 1: 544. The judge in Rex v. Burdett (1820) did not use the term " prima facie case," but a similar formulation. He did not, however, refer to the grand jury. " . . . no person is to be required to explain or contradict until enough has been proved to warrant a just conclusion against him, in the absense of explanation or contradiction." English Reports (Full reprint) vol. 106 (London): 873, 898.

144. Starkie, Practical Treatise , 1853 ed., 1: 544.

145. American Jurist 8 (1832), 218-219. Shaw recognized that "party spirit" and "sectarian zeal" might affect grand jurors in periods of "peculiar states of excitement." He also insisted the evidence must be "legal evidence" (217).

146. Charge to the Grand Jury , 30 Fed. Cas. 998, 999.

147. Francis Wharton, A Treatise of the Criminal Law of the United States , 3d ed. (Philadelphia, 1855), 125.

148. Charge to the Grand Jury , 30 Fed. Cas. 1036, 1038, 1039.

149. Charge to the Grand Jury , 30 Fed. Cas. 976.

150. Charge to the Grand Jury , 30 Fed. Cas. 992, 993.

151. Ibid., 993, 994.

150. Charge to the Grand Jury , 30 Fed. Cas. 992, 993.

151. Ibid., 993, 994.

152. George Edwards, The Grand Jury: Considered from an Historical, Political and Legal Standpoint (1906; reprint, New York, 1973), 105.

153. Sir James Fitzjames Stephen, Digest of the Law of Criminal Procedure in Indictable Offenses (London, 1883), 121.

154. Edwards, Grand Jury , 105.

155. Ibid., 142-143. See also 108.

154. Edwards, Grand Jury , 105.

155. Ibid., 142-143. See also 108.

156. The term " prima facie case" does not appear in Blount, Law Dictionary (1717), Cowell, The Interpreter (1684, 1727); Jacob, The New Law Dictionary (1729, 1809), Cunningham, A New and Complete Law Dictionary (1765), or Tomlins, Law Dictionary (1836). The concept begins to appear in some mid-nineteenth-century law dictionaries, although initially not in connection with grand juries. Bouvier's Law Dictionary , 2d ed., 1856 (Philadelphia, 1843), provided numerous citations to support the statement "Prima facie evidence of a fact is in the law itself sufficient to establish the fact unless rebutted" (363). Neither Burrill's New Law Dictionary (1851), a reworking of Spelman's Glossary (1851), adapted to American jurisprudence, nor Anderson's Dictionary of Law (1893) link prima facie evidence with the grand jury. Burrill cites Bracton and Starkie. In 1873, however, Benjamin Abbott's Dictionary of Terms and continue

Phrases in American or English Jurisprudence (Boston, 1879) indicates the phrase prima facie was in "common use, and of very wide application." It is explicitly associated with the grand jury, citing Starkie and Mozley and Whitley. The 1890 edition of The Century Dictionary (not a law dictionary) also associates the prima facie case with the grand jury, as does the 1891 edition of A Dictionary of Law , p. 935, citing Mozley and Whitley. Mozley and Whitley define a prima facie case:

A litigating party is said to have a prima facie case when the evidence in his favor is sufficiently strong for his opponent to be called upon to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced to on the other side. In some cases, the only question to be considered is whether there is a prima facie case against the accused: and for this purpose therefore, it is not necessary for them to hear the evidence for the defense.

This appears in Herbert Mozley and George Whitley, Law Dictionary , 3d ed., 1908 (London, 1879).

The sequence of American cases in the 1830s that linked the prima facie case with the grand jury and the belated introduction of prima facie case into the law dictionaries may suggest the Americans were persuaded of Starkie's formulation earlier than the English.

Joel Bishop's Commentaries on the Law of Criminal Procedure (Boston, 1866) suggests that various judges and law writers had tried to explain a "middle kind of certainty . . . as a guide to those who would determine whether a particular indictment is sufficient or not." Bk. 2, chap. 4, sec. 48, p. 736. See also bk. 6, chap. 43, sec. 736.

157. Chitty, Criminal Law , 2: 162.

158. See Younger, People's Panel , 56ff. See also Edwards, Grand Jury .

159. Younger, People's Panel , 56, citing The Works of Jeremy Bentham , ed. John Bowring (Edinburgh, 1843), 2: 139-141, 171. The mounting criticism is described in Younger, People's Panel . In the early nineteenth century, population increases meant that grand juries were being asked to review 300 to 400 cases a week. Legislative efforts to introduce a system of public prosecution along U.S., Irish, or Scottish lines, which would screen out clearly inappropriate bills, all failed. Francis Snyder, "Using the Criminal Law, 1750-1850," in Policing and Prosecution in Britain, 1750-1850 , ed. Douglas Hay and Francis Snyder (Oxford, 1989), 36.

160. William Forsyth, History of Trial by Jury (London, 1852), 216-217, 221-223. F. W. Maitland, Police and Justice (London, 1885), 139.

161. Younger, People's Panel , 185.

162. See Ibid., 60-75, 138-139, 226-230. See also S. D. Thompson continue

and E. G. Merriam, A Treatise on the Organization, Custody and Conduct of Juries, Including Grand Juries (St. Louis, 1882). See also David Bodenheimer, "Criminal Justice and Democratic Theory in Antibellum America: The Grand Jury Debates in Indiana," Journal of the Early Republic 5 (1985): 481-501. See also Helene Schwartz, "Demythologizing the Historic Role of the Grand Jury," American Criminal Law Review 10 (1972): 755-757.

161. Younger, People's Panel , 185.

162. See Ibid., 60-75, 138-139, 226-230. See also S. D. Thompson continue

and E. G. Merriam, A Treatise on the Organization, Custody and Conduct of Juries, Including Grand Juries (St. Louis, 1882). See also David Bodenheimer, "Criminal Justice and Democratic Theory in Antibellum America: The Grand Jury Debates in Indiana," Journal of the Early Republic 5 (1985): 481-501. See also Helene Schwartz, "Demythologizing the Historic Role of the Grand Jury," American Criminal Law Review 10 (1972): 755-757.

163. Hurtado v. Calif., 110 U.S. 516, 535 (1984).

164. Long after Hurtado , the Supreme Court began the "selective incorporation" of the Bill of Rights into the Fourteenth Amendment. It has incorporated nearly everything except the grand jury provision. Indeed the "selective" part of the selective incorporation doctrine appears to be kept alive almost solely for the purpose of avoiding the imposition of the grand jury requirement in the states.

165. Jerold H. Israel, "Grand Jury," in Encyclopedia of Crime and Justice , ed. Sanford Kadish (New York, 1983), 2: 814-815. Even in those jurisdictions many prosecutions proceeded by information because defendants may waive the indictment. This is a common practice for those making guilty pleas. See also Frankel and Naftalis, Grand Jury , 26-31. The development of public prosecutors in the United States and their role in grand jury proceedings meant that the grand jury functioned somewhat differently in England than in the United States. See Joan E. Jacoby, The American Public Prosecutor: A Search for Identity (Lexington, Mass., 1980), 19, 29. In some colonies, public prosecutors appear to have been introduced with grand juries. Prosecuting attorneys had the discretion to initiate and terminate criminal cases. See also 32, 111, 113, 138, 145-146.

166. See Chapter 3.

167. See, for example, Samuel Dash, "The Indicting Jury: A Critical Stage?" American Criminal Law Review 10 (1972): 807-828.

168. Alaska Crim. R. 6 (q) (1981).

169. Rideout v. Superior Court, 67 Cal. Reports , 2d Series, 471, 1967. See also U.S. v. Heap, 345 F.2d 170 (2d Cir. 1965); Lester Orfield, "The Federal Grand Jury," Federal Rules Decisions 22 (1959): 343-463.

170. Alan C. Wright, Federal Practice and Procedure: Criminal , 4 vols. (St. Paul, 1969 and 1982), chapt. 4m, rule 6, sec. 110.

171. Yale Kamisar, Wayne LaFave, and Jerold H. Israel, Modern Criminal Procedure (St. Paul, 1980), 990.

172. See Note, "The Rules of Evidence as a Factor in Probable Cause in Grand Jury Proceedings and Preliminary Examinations," Washington University Law Quarterly (1963): 102-124.

173. Quoted in Orfield, "Federal Grand Jury," 343, 435. break

174. Quoted in Peter Aranella, "Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication," Michigan Law Review 78 (1980): 485.

175. Quoted in Ibid.

176. Ibid., 486.

174. Quoted in Peter Aranella, "Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication," Michigan Law Review 78 (1980): 485.

175. Quoted in Ibid.

176. Ibid., 486.

174. Quoted in Peter Aranella, "Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication," Michigan Law Review 78 (1980): 485.

175. Quoted in Ibid.

176. Ibid., 486.

177. United States v. O'Shea, 447 F. Supp. 330, 331 (1978).

178. Lloyd Moore, Moore's Federal Practice (New York, 1979), 6-60.

179. American Jurist 8 (1832): 218.

180. United States v. Reed, 27 Fed. Cas. 727, 735, cited in Aranella, "Reforming the Federal Grand Jury," 488.

181. Charge to the Grand Jury , 30 Fed. Cas. 1036, 1039 (1861).

182. Charge to the Grand Jury , 30 Fed. Cas. 992, 993, 994 (1872). Edwards's 1904 study indicated that the grand jury employed the same rules of evidence as the petty jury, and that it was the duty of the district attorney to prevent the grand jury from hearing incompetent evidence. Receiving hearsay or irrelevant testimony, however, was not sufficient grounds for quashing the indictment. Edwards, The Grand Jury , 142, 143.

183. Aranella, "Reforming the Federal Grand Jury," 464-586.

184. Holt v. United States, 218 U.S. 245 (1910).

185. Note, Washington University Law Quarterly (1963): 101, 105-106.

186. See Frankel and Naftalis, Grand Jury , 26-30, 69-116.

187. United States v. Costello, 321 F. 2d 668, 677 (2d Cir. 1955).

188. 321 F.2d at 679.

189. United States v. Costello, 350 U.S. 362, 363 (1956). Justice Burton's concurrence reiterated the view that indictments were invalid only if there were "no substantial or rationally pervasive evidence" (364). The probable cause standard for arrest satisfied Justice Burton's standard. See Aranella, "Reforming the Federal Grand Jury," 493n.

190. Costello must also be seen in the context of the twentieth-century tendency to reduce the scope of hearsay exclusions.

191. Lawn v. United States, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966).

192. United States v. Calandra, 414 U.S. 338, 344-345 (1974).

193. 414 U.S. 349.

194. Aranella, "Reforming the Federal Grand Jury," 496. The prosecution presumably screens out cases with little likelihood of conviction. The grand jury protects the "factually" innocent.

195. Ibid., 500-501.

196. Quoted in Ibid., 502, citing Justice Department Standards , 3002.

197. Ibid., 503. Only about 20 percent of the federal prosecutions continue

involve preliminary examinations because most defendants are indicted before the hearing is held, and the indictment then obviates the need for the hearing (535-536).

194. Aranella, "Reforming the Federal Grand Jury," 496. The prosecution presumably screens out cases with little likelihood of conviction. The grand jury protects the "factually" innocent.

195. Ibid., 500-501.

196. Quoted in Ibid., 502, citing Justice Department Standards , 3002.

197. Ibid., 503. Only about 20 percent of the federal prosecutions continue

involve preliminary examinations because most defendants are indicted before the hearing is held, and the indictment then obviates the need for the hearing (535-536).

194. Aranella, "Reforming the Federal Grand Jury," 496. The prosecution presumably screens out cases with little likelihood of conviction. The grand jury protects the "factually" innocent.

195. Ibid., 500-501.

196. Quoted in Ibid., 502, citing Justice Department Standards , 3002.

197. Ibid., 503. Only about 20 percent of the federal prosecutions continue

involve preliminary examinations because most defendants are indicted before the hearing is held, and the indictment then obviates the need for the hearing (535-536).

194. Aranella, "Reforming the Federal Grand Jury," 496. The prosecution presumably screens out cases with little likelihood of conviction. The grand jury protects the "factually" innocent.

195. Ibid., 500-501.

196. Quoted in Ibid., 502, citing Justice Department Standards , 3002.

197. Ibid., 503. Only about 20 percent of the federal prosecutions continue

involve preliminary examinations because most defendants are indicted before the hearing is held, and the indictment then obviates the need for the hearing (535-536).

198. The two-trial issue becomes even more salient in the context of plea bargaining. For most accused persons in the United States, the preliminary hearing is not a preliminary to trial but about the only trial they will have. For this reason counterpressures inevitably arise to the tendency to lower both prima facie case and probability standards. For the same reason pressures also arise to allow greater and greater defense participation in preliminary hearings. These latter pressures then threaten the paradox that preliminary hearings may become more adversarial, and thus more cumbersome and redundant, than grand jury proceedings. At the moment, the preliminary hearing is in the same state of instability and cyclical debate that characterized the grand jury until the prima facie case synthesis, and the grand jury itself is back in that same state.

199. See Herbert Packer, "Two Models of the Criminal Process," University of Pennsylvania Law Review 113 (1964): 1-68. See also Abraham Goldstein, "The State and the Accused: Balance of the Advantage in Criminal Procedure," Yale Law Review 69 (1960): 1149-1199.

1. See J. W. Baldwin, "The Intellectual Preparation for the Canon of 1215 against Ordeals," Speculum 36 (1961): 613-636; R. C. Van Caenegem, "The Law of Evidence in the Twelfth Century: European Perspectives and Intellectual Background," Proceedings of the Second International Congress of Medieval Canon Law (Vatican City, 1965).

2. Aristotle Rhetoric 1.2. Cicero provided a list of signs, e.g., blood, pallor, or lust, which may have occurred before, during, or after the crime. Cicero De inventione , Loeb Classical Library, vol. 2 (Cambridge, Mass., 1949), 1.48.

3. Quintilian, Institutes of the Orator , trans. J. Patsaill (London, 1777), bk. 1: 1-5.

4. See Alessandro Giuliani, "The Influence of Rhetoric on the Law of Evidence and Pleading," Juridical Review 62 (1969): 216-251.

5. Quintilian, Institutes , bk. 4, chap. 9. See also Cicero De inventione . These rhetorical categories also would have an enormous impact on fiction writers from the late sixteenth century to the eighteenth century who were hoping to create a different kind of probability. They employed circumstances, persons, times, places, and events, connecting them in such a way as to produce an intelligible or conjectural structure of verisimilitude. Thus verisimilitude was "probable" but not "true." The "probable continue

fictions" were praised by Sidney and his neoclassical successors as superior to the truths of history. The signs or circumstances of Cicero and Quintilian were thus put to a wide variety of uses.

6. Quintilian, Institutes , bk. 4, chap. 10.

7. C. A. Morrison, "Some Features of the Roman and English Law of Evidence," Tulane Law Review 33 (1959): 582.

8. See Richard M. Fraher, "Conviction According to Conscience: The Medieval Jurists' Debate Concerning Judicial Discretion and the Law of Proof," Law and History Review 7 (1989): 32-40.

9. These yielded proof "as clear as the light of day." The two-witness rule had a basis in Scripture. It was recognized that confessions might be forced and that demented persons sometimes confessed to crimes they had not committed. Misdemeanors did not require "legal proof" and were decided by magistrates on the basis of "free proof." See Adhemar Esmein, A History of European Criminal Procedure with Specific Reference to France , trans. J. Simpson, in Continental Legal History Series, vol. 5 (Boston, 1913); C. L. von Bar et al., A History of Continental Criminal Law , Continental Legal History Series, vol. 6 (Boston, 1916).

10. See Fraher, "Conviction According to Conscience," 23-88; Giorgia Alessi Palazzola, Prova legale e pena: La crisi del sistema tra evo medio e moderno (Naples, 1979); John Langbein, Torture and the Law of Proof (Chicago, 1977); Alfred Soman, "Deviance and Criminal Justice in Western Europe, 1300-1800: An Essay in Structure," Crim. Justice History 1 (1980): 1-28; C. A. Morrison, "Roman and English Law of Evidence," 577-594. Because crimes proved by this method resulted in monetary penalties, exile, corporal punishment, or the galley sentence in France, expansion of this mode of proof must have resulted in a substantial reduction in capital punishment.

11. See Alfred Soman, "Criminal Jurisprudence in Ancient Regime France," in Crime and Criminal Justice in Europe and Canada , ed. Louis A. Knafla (Waterloo, Ontario, 1981), 43-75, and "La justice criminelle aux XVIe-XVIIe siècles: Le Parlement de Paris et les sièges subalternes," in La faute, la repression et le pardon: Philologie et histoire jusque à 1610 , vol. 1 (Brest, 1982), 15-52.

12. See Walter Ullmann, "Some Medieval Principles of Criminal Procedure," Juridical Review 59 (1947): 1-28; Richard Wunderli, "London Church Courts and Society on the Eve of the Reformation," Speculum , Anniversary Monographs no. 7 (Cambridge, Mass., 1981); Charles Donahue, "Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law," in On the Law and Customs of England: Essays in Honor of Samuel E. Thorne , ed. Morris Arnold et al. (Chapel Hill, 1981), 127-158; Harold Berman, Law and Revolution : continue

The Formation of the Western Legal Tradition (Cambridge, Mass., 1983), 151-155; Jean P. Levy, La hiérarchie des preuves dans le droit savant du moyen âge despuis la renaissance du droit romain jusqu'à la fin du XIV siècle (Paris, 1939); R. C. Van Caenegem, "La Preuve dans le droit du moyen âge occidental," in Recueils de la Société Jean Bodin, pour l'histoire comparative des institutions (Brussels, 1965), 17: 691-740.

13. Sir John Fortescue, De Laudibus Legum Anglie , ed. and trans. S. B. Chrimes (Cambridge, Mass., 1942). It appeared in print for the first time in 1545. There were ten English editions between 1567 and the end of the seventeenth century.

14. For a discussion of the English civilians, see Brian Levack, The Civil Lawyers in England, 1603-1641: A Political Study (Oxford, 1973); Daniel R. Coquillette, "Legal Ideology and Incorporation I: The English Civilian Writers, 1523-1607," 1-89, and "Legal Ideology and Incorporation II: Thomas Ridley, Charles Malloy, and the Literary Battle for the Law Merchant," Boston University Law Review 61 (1981): 315-376, and "Legal Ideology and Incorporation III: Reason Regulated—The Post-Restoration English Civilians, 1653-1735," Boston University Law Review 67 (1987): 289-361. Coquillette discusses the efforts of civilians to incorporate civil law doctrines into the common law. The first stage (1523-1607) is characterized by a civilian effort to synthesize with the common law and by an effort at comparative law. The second is characterized by a reaction led by Coke and the common lawyers against these efforts. The third period (1629-1688) left the English civilians with a narrow, specialized role.

15. Coquillette, "Legal Ideology and Incorporation I," 85. See also S. B. Chrimes, "The Constitutional Ideas of Dr. John Cowell," English History Review 44 (1949): 461-480.

16. If "reduced to one method," he thought the similarities would become visible. Quoted in Coquillette, "Legal Ideology and Incorporation I," 73.

17. Ibid., 85, quoting Coke and Cowell. Coquillette suggests that Cowell's Institutes of the Laws of England was viewed by Coke as a rival to his own Institutes which he was preparing. Cowell's Institutes were in part designed to facilitate combining Scotland's civilian-oriented and England's common-law legal systems, a project of great interest to King James.

The romanization of the law of Scotland began in the second half of the fifteenth century. The systematic introduction of Roman law occurred in the sixteenth and seventeenth centuries. As early as 1605, Sir Thomas Craig indicated that both England and Scotland were borrowing from the Roman law but that the influence was not being acknowledged in En- soft

gland. Peter Stein, "The Influence of Roman Law on the Law of Scotland," in The Character and Influence of Roman Law: Historical Essays (London, 1988), 339.

16. If "reduced to one method," he thought the similarities would become visible. Quoted in Coquillette, "Legal Ideology and Incorporation I," 73.

17. Ibid., 85, quoting Coke and Cowell. Coquillette suggests that Cowell's Institutes of the Laws of England was viewed by Coke as a rival to his own Institutes which he was preparing. Cowell's Institutes were in part designed to facilitate combining Scotland's civilian-oriented and England's common-law legal systems, a project of great interest to King James.

The romanization of the law of Scotland began in the second half of the fifteenth century. The systematic introduction of Roman law occurred in the sixteenth and seventeenth centuries. As early as 1605, Sir Thomas Craig indicated that both England and Scotland were borrowing from the Roman law but that the influence was not being acknowledged in En- soft

gland. Peter Stein, "The Influence of Roman Law on the Law of Scotland," in The Character and Influence of Roman Law: Historical Essays (London, 1988), 339.

18. The Works of Francis Bacon , ed. J. Spedding et al., vol. 13 (London, 1872), cited in Coquillette, "Legal Ideology and Incorporation I," 17n.

19. Quoted in Coquillette, "Legal Ideology and Incorporation III," 306. Edward Waterhouse's Fortescue Illustratus (London, 1663), which had the impramatur of the judges (including Hale), spoke favorably of the civil law. He indicated that Fortescue, for rhetorical purposes, had exaggerated the differences between the common and the civil law. The latter was "a very noble and learned law and conforms in the greatest part of it, to natural equity" (259). English civilians are praised for their "great learning" and "usefulness" (213, 214, 224, 228, 256). Coke's and François Hotman's hostility to the civil law and their negative comparisons were "as odious to revive" as comparisons between Oxford and Cambridge. Waterhouse insisted that in the cases of laws and universities "I do equal honour to both" (236). The civil law was "very fit for Empire," but the English common law was "fit for British Empire" (119); see also 223, 260.

20. Gilbert Burnet, The Life and Death of Sir Matthew Hale (London, 1682), 38.

21. William M. Best, A Treatise on Presumptions of Law and Fact with the Theory and Rules of Presumptive or Circumstantial Proof in Criminal Cases (Philadelphia, 1845). See also Coquillette, "Legal Ideology and Incorporation IV: The Nature of Civilian Influence on Modern Anglo-American Commercial Law," Boston University Law Review 67 (1987): 929-934; Peter Stein, "Roman Law and English Jurisprudence: Yesterday and Today," in The Character and Influence of Roman Law: Historical Essays (London, 1988), 152-165.

22. Thomas Wood, A New Institute of the Imperial or Civil Law , 4th ed. (London, 1715), 86. Fleta, Bracton, and the "most ancient" of them would look "very Naked if every Roman lawyer should pluck away his Feathers," and Coke used terms and maxims of both the civil and common law (86). Wood notes, too, a recent epitomization and translation of Vulteius on obligations and contracts by a Mr. West who "passed it off for the pure common law of England" (86). The civil and common laws might not be of the same "Root or Stock," but "inoculating and grafting" have made their body and branches grow very much alike. The civil law was thus interwoven with the common law, and its study should be much encouraged to better understand the common law. Wood conceived of his own work as a part of that project (87-89).

23. See A. W. B. Simpson, "The Rise and Fall of the Legal Treatise: continue

Legal Principles and the Forms of Legal Literature," University of Chicago Law Review 48 (1981): 632-679. See also Chapter 4, pp. 186-243.

24. Jean Domat, Civil Law in Its Natural Order , trans. William Strahan, 2 vols. (Boston, 1853), 1:789ff. Strahan's 1722 translation was a favorite of both American and English jurists.

25. William Evans's translation contains a long appendix on applications to English law. Pothier, A Treatise on the Law of Obligation or Contract , trans. William Evans, 2 vols. (Philadelphia, 1826), 98. Evans the barrister/translator suggests the new attitude. He praises the "science of jurisprudence" which has been so neglected. Jurisprudence is viewed as "a moral science," as a rational science "founded upon the universal principles of moral rectitude . . . modified by habit and authority" (49).

26. Peter Stein, "The Attraction of the Civil Law in Post-Revolutionary America," Virginia Law Review 52 (1966): 403-434; Francis R. Aumann, "The Influence of English and Civil Law Principles upon the American Legal System during the Critical Post-Revolutionary Period," University of Cincinnati Law Review 12 (1938): 289-317; William Howe, Studies of the Civil Law and Its Relation to the Laws of England and America (Boston, 1896). Despite the obvious and immense importance of English law, several states enacted laws forbidding the citation of post-1776 English decisions. Kentucky briefly prohibited citations to any English decisions. English precedents were labeled the "rags of despotism" by some radicals. Anti-Federalists were often suspicious of aristocratic judges and lawyers and English institutions. Aumann, "Influence of English," 293, 294, 296, 298n, 305. See also Richard Cosgrove, Our Lady the Common Law: An Anglo-American Legal Community, 1870-1930 (New York, 1987).

27. Stein, "The Attraction of the Civil Law," 406, 413.

28. James Kent, Commentaries on American Law , ed. W. Browne (St. Paul, 1894), 206. For Kent, the civil law was the source of these "comprehensive views and solid principles which have been applied to elevate the jurisprudence of modern nations" (202).

29. In 1825 it was reported: "In our courts of justice the writings of the civilians are referred to freely and fearlessly. The Institutes of Justinian and the commercial treatises of Pothier, Emerigon, and Roccus, are naturalized among us; and in many libraries, Bynkershoek, Heineccius, and Valin, have taken their place by the side of Blackstone and Coke. Our printed reports show the fruits of this liberal study." Aumann, "Influence of English," 310, quoting North American Review (October, 1825).

30. For a brief period there was also considerable openness to French law, in both its revolutionary and Napoleonic garbs. Ibid., 306-307; David Hoffman, A Course of Legal Study (Baltimore, 1817), 229-230. break

31. David Hoffman, A Course of Legal Study , 2d ed., 1836 (Baltimore, 1817). The author of Fleta, Britton "as well as modern writers and judges, like Holt and Mansfield" have been indebted to the civil law and "their pages and judicial decisions are often illuminated by the pure and lustrus wisdom of Roman Jurisprudence" (258). Holt is quoted as having said that "the laws of all nations are doubtless raised out of the civil law, as all governments are sprung out of the ruins of the Roman Empire." "No nation has been more copiously supplied from the purest strains of the civil law, and at the same time given it so little credit for which it had received, as Great Britain" (259).

32. Students should study Mascardus, Menochius, and Farinaccius, as well as the more natural law oriented evidentiary writings of Domat and Everhardus, the "most distinguished authors on the civil law of evidence." Ibid., 269. See also Hoffman, A Lecture on Law (Baltimore, 1826), 17.

33. Hoffman, A Lecture , 17. See also 1-19. A review of the second edition (1836) of A Course of Study in the North American Review noted that Hoffman was equally at home among the voluminous treatises of both the Roman and the Continental law. Hoffman emphasized the importance of the "philosophical and scientific treatises of the distinguished legal writers of France and Germany as a corrective to the narrow spirit which an exclusive devotion to the common law is liable to produce." Most English treatises were "merely formularies for practice, written without reference to general principles and without any pretention that scientific arrangement which is deemed so indispensable on the Continent" (74).

34. Stein, "The Attraction of Civil Law," 432; Aumann, "The Influence of English," 315, 315n.

35. F. Pollock and W. Maitland, History of English Law , 2 vols. (London, 1959), 2: 582-583.

36. Jack K. Weber, "The Birth of Probable Cause," Anglo-American Law Review , 11 (1982): 156-158. Evidently the traditional hue and cry had already fallen into disuse as the most common way of apprehending serious offenders. Hue and cry warrants were a later development.

37. 34 Edw. 3, c. 1.

38. Lloyd E. Moore, The Jury: Tool of Kings: Palladium of Liberty (Cincinnati, 1973), 54.

39. Henry Bracton, On the Laws and Customs of England , trans. and ed. Samuel Thorne, 4 vols. (Cambridge, Mass., 1968), 4: 404, 408. Bracton, still in connection with indictment, noted that it required repeated complaint and ill repute. He admitted, however, that the "uproar and public outcry are at times made of many things which in truth have no continue

foundation," and thus the idle talk of the people is not to be heeded. He often cited Tancred.

40. Pollock and Maitland, History of English Law , 2: 582-583.

41. J. G. Bellamy, Crime and Public Order in England in the Later Middle Ages (London, 1973), 102-103.

42. Included in John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, Mass., 1974), 274. Several suspicions found together were a legally sufficient basis for torture (275).

43. William Lambarde, Eirenarcha, or Of the Office of the Justice of the Peace , 1614 ed. (London, 1581), 93. The list of what may engender suspicion is also included in the 1588 edition; see 220-221.

44. Ibid., 93, 119. The action for false imprisonment long preceded the development of the handbook tradition. Crompton, in 1606, notes the availability of such an action if arrest occurred "sans cause reasonable suspiciousment." Crompton, L'office et auctoritie de justices de peace (London, 1606), 100r-100v. "Reasonable" suspicions were necessary and presumably an estimate of whether the "causes of suspicion" were involved here.

43. William Lambarde, Eirenarcha, or Of the Office of the Justice of the Peace , 1614 ed. (London, 1581), 93. The list of what may engender suspicion is also included in the 1588 edition; see 220-221.

44. Ibid., 93, 119. The action for false imprisonment long preceded the development of the handbook tradition. Crompton, in 1606, notes the availability of such an action if arrest occurred "sans cause reasonable suspiciousment." Crompton, L'office et auctoritie de justices de peace (London, 1606), 100r-100v. "Reasonable" suspicions were necessary and presumably an estimate of whether the "causes of suspicion" were involved here.

45. Michael Dalton, The Country Justice , (London, 1635), 336, 337, 338.

46. Ibid.; see also 303-304. The statement concerning the constable's authority to arrest without a warrant (Cap. 118) was added after the first edition.

47. Ibid., 330.

45. Michael Dalton, The Country Justice , (London, 1635), 336, 337, 338.

46. Ibid.; see also 303-304. The statement concerning the constable's authority to arrest without a warrant (Cap. 118) was added after the first edition.

47. Ibid., 330.

45. Michael Dalton, The Country Justice , (London, 1635), 336, 337, 338.

46. Ibid.; see also 303-304. The statement concerning the constable's authority to arrest without a warrant (Cap. 118) was added after the first edition.

47. Ibid., 330.

48. See Barbara Shapiro, "Law Reform in Seventeenth-Century England," American Journal of Legal History 19 (1975): 280-312; Donald Veall, The Popular Movement for Law Reform, 1640-1660 (Oxford, 1970); Mary Cotterell, "Interregnum Law Reform: The Hale Commission of 1652," English History Review 83 (1968): 689-704; Stuart Prall, The Agitation for Law Reform during the Puritan Revolution, 1640-1660 (The Hague, 1966).

49. William Sheppard, An Epitome of All the Common and Statute Law (London, 1659), 649-650.

50. Ibid., 563, citing Chief Justice Bridgman and cur. Marb c. 23.

49. William Sheppard, An Epitome of All the Common and Statute Law (London, 1659), 649-650.

50. Ibid., 563, citing Chief Justice Bridgman and cur. Marb c. 23.

51. William Sheppard, A New Survey of the Justice of the Peace, His Office (London, 1659), 38. See also A Manual or Analecta (London, 1641), 21. Dalton and Lambarde are cited for "Circumstances observable in the behavior of felons."

52. For a discussion of the transformation of the medieval hue and cry into its seventeenth-century written, rather than word-of-mouth, form continue

and its eighteenth-century replacement by newspaper advertising see John Styles, "Print and Policy: Crime Advertising in Eighteenth-Century England," in Policing and Prosecution in Britain , ed. Douglas Hay and Francis Snyder (Oxford, 1989), 55-95.

53. Sir James Fitzjames Stephen, A History of the Criminal Law of England (London, 1883), 190.

54. Sheppard, Epitome , 650.

55. William Sheppard, The Whole Office of the County Justice of Peace (London, 1652), 34, citing Dalton, Country Justice , 374, 375, 376, 404, 408.

56. Sir Edward Coke, Institutes of the Lawes of England , 4 parts (London, 1628-1644), 4: 177. Julius Goebel and J. R. Naughton suggest Coke himself was confused. In the Twelfth Report he says the justice of the peace can issue a warrant. The Fourth Report indicates a warrant on suspicion is not lawful. Law Enforcement in Colonial New York (New York, 1944), 419.

57. A private person may arrest anyone who actually committed a felony or whom he suspects on reasonable grounds of having committed a felony. The constable could arrest anyone he personally suspected if he had reasonable grounds to believe that they had committed a felony, whether or not a felony had actually been committed. Matthew Hale, History of the Pleas of the Crown , 2 vols. (London, 1736), chap. 50, 1: 579, citing Dalton, Country Justice , cap. 117b. See Jack K. Weber, "The Rise of Probable Cause," 156-167; J. L. Lambert, "Reasonable Cause to Arrest," Public Law (1973): 285-294; Jerome Hall, "Legal and Social Aspects of Arrest without a Warrant," Harvard Law Review 49 (1936): 567-592.

58. Hale, History of the Pleas of the Crown , 1: 579, citing Dalton, Country Justice , cap. 117b.

59. Ibid., 580. Hale insisted that general warrants to apprehend all suspected persons were void.

60. Ibid., 109-110; see also 107-108.

61. Ibid., 588, citing 2 Edw. 4, 8b.

62. Ibid., citing Dalton, Country Justice , cap. 118.

63. Ibid., 92.

58. Hale, History of the Pleas of the Crown , 1: 579, citing Dalton, Country Justice , cap. 117b.

59. Ibid., 580. Hale insisted that general warrants to apprehend all suspected persons were void.

60. Ibid., 109-110; see also 107-108.

61. Ibid., 588, citing 2 Edw. 4, 8b.

62. Ibid., citing Dalton, Country Justice , cap. 118.

63. Ibid., 92.

58. Hale, History of the Pleas of the Crown , 1: 579, citing Dalton, Country Justice , cap. 117b.

59. Ibid., 580. Hale insisted that general warrants to apprehend all suspected persons were void.

60. Ibid., 109-110; see also 107-108.

61. Ibid., 588, citing 2 Edw. 4, 8b.

62. Ibid., citing Dalton, Country Justice , cap. 118.

63. Ibid., 92.

58. Hale, History of the Pleas of the Crown , 1: 579, citing Dalton, Country Justice , cap. 117b.

59. Ibid., 580. Hale insisted that general warrants to apprehend all suspected persons were void.

60. Ibid., 109-110; see also 107-108.

61. Ibid., 588, citing 2 Edw. 4, 8b.

62. Ibid., citing Dalton, Country Justice , cap. 118.

63. Ibid., 92.

58. Hale, History of the Pleas of the Crown , 1: 579, citing Dalton, Country Justice , cap. 117b.

59. Ibid., 580. Hale insisted that general warrants to apprehend all suspected persons were void.

60. Ibid., 109-110; see also 107-108.

61. Ibid., 588, citing 2 Edw. 4, 8b.

62. Ibid., citing Dalton, Country Justice , cap. 118.

63. Ibid., 92.

58. Hale, History of the Pleas of the Crown , 1: 579, citing Dalton, Country Justice , cap. 117b.

59. Ibid., 580. Hale insisted that general warrants to apprehend all suspected persons were void.

60. Ibid., 109-110; see also 107-108.

61. Ibid., 588, citing 2 Edw. 4, 8b.

62. Ibid., citing Dalton, Country Justice , cap. 118.

63. Ibid., 92.

64. Hale also made it clear, on the bases of statutory authority of 14 Henry 7.8 and 34 Edw. 3., c. 1 that if the justice "hath either from himself or by credible information from others of a felony done, and just cause of suspicion of any person," he may himself arrest and commit "the suspected party."

65. The Complete Justice , largely a compilation of Lambarde, Crompton, and Dalton, was published frequently with minor changes at least continue

ten times from 1632 to 1681, when it was enlarged by Richard Chamberlain. Some editions were called A Manual or Analecta . Larry M. Boyer, "The Justice of the Peace in England and America 1506-1776," Quarterly Journal of the Library of Congress 34 (1977): 318.

66. Alan Macfarlane and Sarah Harrison, The Justice and the Mare's Ale: Law and Disorder in Seventeenth-Century England (Cambridge, 1981), 86. See also 90.

67. Richard Chamberlain, The Complete Justice (London, 1681), 399.

68. Richard Bolton, Justice of the Peace in Ireland (Dublin, 1683). See also Richard Kilburn, Choice Presedents . . . Relating to the Office and Duty of a Justice of the Peace , 8th ed., 1715 (London, 1680).

69. William Nelson, The Office and Authority of a Justice of the Peace (London, 1707), 469.

70. Hale, History of the Pleas of the Crown , 89n, citing Ms. Rep.

71. Henry Fielding, An Inquiry into the Causes of the Rate Increase of Robbers (London, 1751), 74, citing Hale, History of the Pleas of the Crown , 2: 103.

72. William Hawkins, A Treatise of the Pleas of the Crown , 2 vols., Savoy, 1724 ed. (London, 1717), 2: 76.

73. Ibid.

72. William Hawkins, A Treatise of the Pleas of the Crown , 2 vols., Savoy, 1724 ed. (London, 1717), 2: 76.

73. Ibid.

74. Richard Burn, The Justice of the Peace and Parish Officer (London, 1754). In 1780, Burn's handbook was in its fourteenth edition. This list is an elaboration of the earlier treatment of common fame and circumstances and materials drawn from Lambarde, Dalton, and others for pretrial examination.

75. Hawkins, Pleas of the Crown , 2: 76-77.

76. Ibid., 2: 84, 85.

77. Ibid., 2: 85.

75. Hawkins, Pleas of the Crown , 2: 76-77.

76. Ibid., 2: 84, 85.

77. Ibid., 2: 85.

75. Hawkins, Pleas of the Crown , 2: 76-77.

76. Ibid., 2: 84, 85.

77. Ibid., 2: 85.

78. William Hening, The New Virginia Justice (Richmond, 1795), 450. He specifically cites Hale and Hawkins and rejects the authority of Coke.

79. William Blackstone, Commentaries on the Laws of England , 4 vols. (London, 1765), 4: 252, 287. Blackstone, citing Hale and Hawkins, still makes the point of acknowledging that this view was contrary to Coke's.

80. Joel Bishop, Commentaries on the Criminal Law , 3d ed., 1866, 2 vols. (London, 1856, 1859), bk. 6, chap. 39, p. 625.

81. Ibid., 639.

82. Ibid., 653, citing East, Pleas of the Crown , 332. This seems to refer to private individuals again, not the justice of the peace.

80. Joel Bishop, Commentaries on the Criminal Law , 3d ed., 1866, 2 vols. (London, 1856, 1859), bk. 6, chap. 39, p. 625.

81. Ibid., 639.

82. Ibid., 653, citing East, Pleas of the Crown , 332. This seems to refer to private individuals again, not the justice of the peace.

80. Joel Bishop, Commentaries on the Criminal Law , 3d ed., 1866, 2 vols. (London, 1856, 1859), bk. 6, chap. 39, p. 625.

81. Ibid., 639.

82. Ibid., 653, citing East, Pleas of the Crown , 332. This seems to refer to private individuals again, not the justice of the peace.

83. Joseph Chitty's early nineteenth-century Practical Treatise on the Criminal Law echoes Hale, indicating the magistrate's competence to evaluate the suspicion of others for a warrant and anyone may apprehend continue

without a warrant if the crime had been committed and if there is a reasonable ground to suspect the individual to be guilty. Individuals might arrest upon probable suspicion and might direct a police officer to arrest if there were "a reasonable and probable ground for suspicion." Joseph Chitty, A Practical Treatise on the Criminal Law , 3 vols., Philadelphia, 1819 ed. (London, 1816), 1: 12-13, 14.

84. A. H. Manchester, Sources of English Legal History: Law, History and Society in England and Wales, 1750-1950 (London, 1984), 248. See also Wilbur Miller, Cops and Bobbies: Police and Authority in New York and London, 1830-1870 (Chicago, 1973), 56-58, 60.

85. Sir James Fitzjames Stephen, A Digest of the Law of Criminal Procedure in Indictable Offenses (London, 1883), 61.

86. W. C. Anderson, Dictionary of Law (New York 1893), 1000, citing Blackstone, Commentaries , 4: 252.

87. See J. L. Lambert, "Reasonable Cause to Arrest," 285-295.

88. Ibid., 287, citing Stacey v. Emery, 97 U. S. 624 (1878).

89. Ibid., 287.

87. See J. L. Lambert, "Reasonable Cause to Arrest," 285-295.

88. Ibid., 287, citing Stacey v. Emery, 97 U. S. 624 (1878).

89. Ibid., 287.

87. See J. L. Lambert, "Reasonable Cause to Arrest," 285-295.

88. Ibid., 287, citing Stacey v. Emery, 97 U. S. 624 (1878).

89. Ibid., 287.

90. Wayne LaFave, Arrest: The Decision to Take a Suspect Into Custody (Boston, 1965), 11, citing Draper v. United States, 358 U. S. 307, 315-316 (1959).

91. Ibid., 15, 16, 17.

92. Ibid., 241, citing a 1939 case.

93. Ibid., 244-245.

94. Quoted in Ibid., 245.

95. Ibid., citing Goldsmith v. United States, 177 F.2d 335, 345 (D.C. Cir. 1960).

96. Ibid., 249, citing Brinegar v. United States, 338 U.S. 160, 176 (1949).

90. Wayne LaFave, Arrest: The Decision to Take a Suspect Into Custody (Boston, 1965), 11, citing Draper v. United States, 358 U. S. 307, 315-316 (1959).

91. Ibid., 15, 16, 17.

92. Ibid., 241, citing a 1939 case.

93. Ibid., 244-245.

94. Quoted in Ibid., 245.

95. Ibid., citing Goldsmith v. United States, 177 F.2d 335, 345 (D.C. Cir. 1960).

96. Ibid., 249, citing Brinegar v. United States, 338 U.S. 160, 176 (1949).

90. Wayne LaFave, Arrest: The Decision to Take a Suspect Into Custody (Boston, 1965), 11, citing Draper v. United States, 358 U. S. 307, 315-316 (1959).

91. Ibid., 15, 16, 17.

92. Ibid., 241, citing a 1939 case.

93. Ibid., 244-245.

94. Quoted in Ibid., 245.

95. Ibid., citing Goldsmith v. United States, 177 F.2d 335, 345 (D.C. Cir. 1960).

96. Ibid., 249, citing Brinegar v. United States, 338 U.S. 160, 176 (1949).

90. Wayne LaFave, Arrest: The Decision to Take a Suspect Into Custody (Boston, 1965), 11, citing Draper v. United States, 358 U. S. 307, 315-316 (1959).

91. Ibid., 15, 16, 17.

92. Ibid., 241, citing a 1939 case.

93. Ibid., 244-245.

94. Quoted in Ibid., 245.

95. Ibid., citing Goldsmith v. United States, 177 F.2d 335, 345 (D.C. Cir. 1960).

96. Ibid., 249, citing Brinegar v. United States, 338 U.S. 160, 176 (1949).

90. Wayne LaFave, Arrest: The Decision to Take a Suspect Into Custody (Boston, 1965), 11, citing Draper v. United States, 358 U. S. 307, 315-316 (1959).

91. Ibid., 15, 16, 17.

92. Ibid., 241, citing a 1939 case.

93. Ibid., 244-245.

94. Quoted in Ibid., 245.

95. Ibid., citing Goldsmith v. United States, 177 F.2d 335, 345 (D.C. Cir. 1960).

96. Ibid., 249, citing Brinegar v. United States, 338 U.S. 160, 176 (1949).

90. Wayne LaFave, Arrest: The Decision to Take a Suspect Into Custody (Boston, 1965), 11, citing Draper v. United States, 358 U. S. 307, 315-316 (1959).

91. Ibid., 15, 16, 17.

92. Ibid., 241, citing a 1939 case.

93. Ibid., 244-245.

94. Quoted in Ibid., 245.

95. Ibid., citing Goldsmith v. United States, 177 F.2d 335, 345 (D.C. Cir. 1960).

96. Ibid., 249, citing Brinegar v. United States, 338 U.S. 160, 176 (1949).

90. Wayne LaFave, Arrest: The Decision to Take a Suspect Into Custody (Boston, 1965), 11, citing Draper v. United States, 358 U. S. 307, 315-316 (1959).

91. Ibid., 15, 16, 17.

92. Ibid., 241, citing a 1939 case.

93. Ibid., 244-245.

94. Quoted in Ibid., 245.

95. Ibid., citing Goldsmith v. United States, 177 F.2d 335, 345 (D.C. Cir. 1960).

96. Ibid., 249, citing Brinegar v. United States, 338 U.S. 160, 176 (1949).

97. Dalton, Country Justice , quoted in Burn, Justice of the Peace , 1722 ed., 3: 105.

98. Coke, Institutes , 4: 177.

99. Sheppard, Epitome , 38.

100. Hale, History of the Pleas of the Crown , 7.

101. The warrant required the constable to make a diligent daytime search and to bring the goods and person accused of the theft to be examined by the justice. Joseph Shaw, Parish Law (Savoy, 1734), ix. Giles Jacob, The Modern Justice , 3d ed. (London, 1720) provided a search warrant form which allowed searches of houses and persons "whom you shall justly suspect to have taken" specified goods (1: 195).

102. An Abridgement of Burn's, Justice of the Peace and Parish Officer (Boston, 1773), 7.

103. The constable was authorized to enter the house in the daytime continue

and there "diligently to search." Burn, Justice of the Peace , 1772 ed., 3: 107-108. See also Hening, New Virginia Justice , 450.

104. See Nelson Lasson, The History and Development of the Fourth Amendment to the Constitution (Baltimore, 1937), 42, 44. The status of evidence obtained in the course of an illegal search and seizure did not come before the federal courts until 1822 (52-53). See also Bradford P. Wilson, Enforcing the Fourth Amendment (New York, 1986), 45-47.

105. Illinois v. Galic, 462 U.S. 213, 231-232 (1983).

106. United States v. Leon, 468 U.S. 897 (1984).

107. Silas Wasserstrom and L. M. Seidman, "The Fourth Amendment as Constitutional Theory," Georgetown Law Journal 77 (1988): 33.

108. Brinegar v. United States, 338 U.S. 160, 173-176 (1949).

109. Quoted in "Fifteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeal, 1984-1985," Georgetown Law Journal 74 (1986): 499, 517.

110. Ibid. Information need not be admissible at trial (518). They have, however, insisted that the finding be made by a neutral detached magistrate (rather than a police officer), who weighs the information in a "non-technical sense and realistic manner" (520-521).

109. Quoted in "Fifteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeal, 1984-1985," Georgetown Law Journal 74 (1986): 499, 517.

110. Ibid. Information need not be admissible at trial (518). They have, however, insisted that the finding be made by a neutral detached magistrate (rather than a police officer), who weighs the information in a "non-technical sense and realistic manner" (520-521).

111. See Wasserstrom and Seidman, "Fourth Amendment as Constitutional Theory," 19-112. See also Ronald J. Bacigal, "The Fourth Amendment in Flux: The Rise and Fall of Probable Cause," University of Illinois Law Forum (1979): 763-808.

112. See Langbein, Prosecuting Crime in the Renaissance .

113. For the use of torture in England, see David Jardine, A Reading on the Use of Torture in the Criminal Law of England (London, 1837); John Langbein, Torture and the Law of Proof (Chicago, 1977); James Heath, Torture and English Law: An Administrative and Legal History of the Plantagenets to the Stuarts (London, 1982).

114. For a discussion of the legal education of sixteenth- and seventeenth-century justices, see John Gleason, The Justices of the Peace in England, 1558-1640 (Oxford, 1969), 83-84, 94-95. The change in the literacy level of the justices was part of the transformation of the gentry and the aristocracy. For a discussion of the extent to which criminal investigation remained private and communal despite the introduction of formal state enforcement structure, see Cynthia Herrup, "New Shoes and Mutton Pies: Investigative Responses to Theft in Seventeenth-Century East Sussex," Historical Journal 27 (1984): 811-830.

115. Office of the Clerk of the Assize (London, 1682), however, suggests that the documents certified by the justice of the peace could be read to the jury if the evidence was for the king and if the witness "falter in his testimony, to refresh his memory" (48). The same advice was given continue

to clerks for quarter sessions. After 1700, however, the practice appears to have ended.

116. Lambarde, Eirenarcha , 1614 ed., 229.

117. Richard Crompton, L'office et auctoritie de justices de peace , (London, 1606), 34; Dalton, Country Justice , 1618 ed., 296; Bolton, Justice of the Peace , 524-525; George Webb, The Office and Authority of a Justice of the Peace (Williamsburg, 1736), 140. Burn, the author of the most popular of the eighteenth-century manuals, based his comments on Fitzherbert, Crompton, Lambarde, and especially Dalton. Burn, Justice of the Peace , 12th ed., 1: xiii. Burn notes that too many of his predecessors had removed Dalton's qualifying language "by delivering in the absolute, which Mr. Dalton published under the several degrees of assent or doubtfulness." Burn promised to restore the more tentative language. He also added materials from Stanford, Coke, Hale, and Hawkins, again being careful to leave in such language as "it seemeth" and "it hath been said by some," "it seemeth the better opinion," or "it seemeth to be agreed" (xi).

118. See Langbein, Prosecuting Crime in the Renaissance .

119. Jacob, Modern Justice , 190. Jacob sounds doubtful but says no more.

120. Dalton, Country Justice , 1635 ed., cap. 165. This statement appeared in most handbooks.

121. Thomas G. Barnes, The Clerk of the Peace in Caroline Somerset (Leicester, 1961), 20.

122. Langbein, Prosecuting Crime in the Renaissance , 275, 310, 312.

123. Dalton, Country Justice , 1618 ed., 40.

124. Ibid.

123. Dalton, Country Justice , 1618 ed., 40.

124. Ibid.

125. Bolton, Justice of the Peace , 33.

126. See Gleason, Justices of the Peace , passim. See also J. H. Hexter, "The Education of the Aristocracy," in Reappraisals in History (New York, 1962), 71-116.

127. Lambarde, Eirenarcha , 1614 ed., 217.

128. Ibid., 219.

127. Lambarde, Eirenarcha , 1614 ed., 217.

128. Ibid., 219.

129. Cicero De inventione 1.34-43, 48; Rhetorica ad herennium , Loeb Classical Library, vol. 2 (Cambridge, Mass., 1954), 2.8.

130. Lambarde, Eirenarcha , 1614 ed., 218.

131. Ibid., 219.

132. Ibid.

130. Lambarde, Eirenarcha , 1614 ed., 218.

131. Ibid., 219.

132. Ibid.

130. Lambarde, Eirenarcha , 1614 ed., 218.

131. Ibid., 219.

132. Ibid.

133. Crompton, L'office . See also Thomas Wilson, The Art of Rhetorique (London, 1585), 91-92, 112-113.

134. Crompton, L'office , 100r. break

135. Ibid., 98r, 99v, 100r. Bracton is nearly always cited in discussions of common fame.

136. Ibid., 110v.

134. Crompton, L'office , 100r. break

135. Ibid., 98r, 99v, 100r. Bracton is nearly always cited in discussions of common fame.

136. Ibid., 110v.

134. Crompton, L'office , 100r. break

135. Ibid., 98r, 99v, 100r. Bracton is nearly always cited in discussions of common fame.

136. Ibid., 110v.

137. Dalton, Country Justice , 1635 ed.

138. Ibid., title page.

139. Ibid., 40.

140. Ibid., 297, citing Crompton, L'office , 100.

141. Ibid., 297.

142. Ibid., 296, 297, 300. "Persons" required consideration of whether the accused fell into certain legal categories which might require different treatment, e.g., principal or accessory, children, insane, or if the injured party were king, commonwealth, magistrate, or master (303).

137. Dalton, Country Justice , 1635 ed.

138. Ibid., title page.

139. Ibid., 40.

140. Ibid., 297, citing Crompton, L'office , 100.

141. Ibid., 297.

142. Ibid., 296, 297, 300. "Persons" required consideration of whether the accused fell into certain legal categories which might require different treatment, e.g., principal or accessory, children, insane, or if the injured party were king, commonwealth, magistrate, or master (303).

137. Dalton, Country Justice , 1635 ed.

138. Ibid., title page.

139. Ibid., 40.

140. Ibid., 297, citing Crompton, L'office , 100.

141. Ibid., 297.

142. Ibid., 296, 297, 300. "Persons" required consideration of whether the accused fell into certain legal categories which might require different treatment, e.g., principal or accessory, children, insane, or if the injured party were king, commonwealth, magistrate, or master (303).

137. Dalton, Country Justice , 1635 ed.

138. Ibid., title page.

139. Ibid., 40.

140. Ibid., 297, citing Crompton, L'office , 100.

141. Ibid., 297.

142. Ibid., 296, 297, 300. "Persons" required consideration of whether the accused fell into certain legal categories which might require different treatment, e.g., principal or accessory, children, insane, or if the injured party were king, commonwealth, magistrate, or master (303).

137. Dalton, Country Justice , 1635 ed.

138. Ibid., title page.

139. Ibid., 40.

140. Ibid., 297, citing Crompton, L'office , 100.

141. Ibid., 297.

142. Ibid., 296, 297, 300. "Persons" required consideration of whether the accused fell into certain legal categories which might require different treatment, e.g., principal or accessory, children, insane, or if the injured party were king, commonwealth, magistrate, or master (303).

137. Dalton, Country Justice , 1635 ed.

138. Ibid., title page.

139. Ibid., 40.

140. Ibid., 297, citing Crompton, L'office , 100.

141. Ibid., 297.

142. Ibid., 296, 297, 300. "Persons" required consideration of whether the accused fell into certain legal categories which might require different treatment, e.g., principal or accessory, children, insane, or if the injured party were king, commonwealth, magistrate, or master (303).

143. J. A. Sharpe, Crime in Seventeenth-Century England: A County Study (Cambridge, 1983), 166-167.

144. Quoted in Dalton, Country Justice , 1635 ed., 303. Coke's discussion of presumption did not occur in a passage dealing with pretrial examination. Coke, in another context, insists that only the grand jury might dismiss charges on the basis of "insufficient evidence."

145. Trat's Murder (1624), quoted in Langbein, Prosecuting Crime in the Renaissance , 53.

146. English handbooks note that torture was permitted after conviction in order to obtain information from accessories. This also is found in the civil law.

147. Joseph Keble, An Assistance to Justices of the Peace (London, 1683), 202, 604-605. This volume bore the imprimatur of twelve judges.

148. Ibid.

147. Joseph Keble, An Assistance to Justices of the Peace (London, 1683), 202, 604-605. This volume bore the imprimatur of twelve judges.

148. Ibid.

149. Hale, History of the Pleas of the Crown , 1: 583, 588. In another publication, Hale indicated that the justice could not discharge the accused simply because he did not believe him to be guilty. Sir Matthew Hale, Pleas of the Crown, or a Methodical Summary (London, 1678), 98.

150. Hawkins, Pleas of the Crown , 2: 99. Hawkins retains the language of violent presumption.

151. Sir Thomas Smith, De Republica Anglorum (Cambridge, 1906).

152. Langbein, Prosecuting Crime in the Renaissance , 96-97.

153. William Lambarde and Local Government: His "Ephemeris" and Twenty-Nine Charges to Juries and Commissions , ed. Conyers Read (Ithaca, N.Y., 1962).

154. Granville Leveson-Gower, "Notebook of a Surrey Justice," Surrey Archeological Collections 9 (1888): 183, 192, 196.

155. Macfarlane and Harrison, Justice and the Mare's Ale , 84, citing Fleming, Letters , 2629. break

156. Joel Samaha, Law and Order in Historical Perspective: The Case of Elizabethan Essex (New York, 1974), xiii, 80-81, 84.

157. See Robert Shoemaker, "Crime and Community: Prosecution of Misdemeanor in Middlesex County, 1663-1725," Ph.D. diss., Stanford University, 1985), 47, 48, 73; J. A. Sharpe, "Enforcing the Law in the Seventeenth-Century Village," in Crime and the Law: The Social History of Crime in Western Europe Since 1500 , ed. V. Gatrell et al. (London, 1980), 97-119.

158. The Justicing Notebook of William Hunt , ed. Elizabeth Crittal, Wiltshire Record Society, 37 (1982), 13, 14, 42, 46. See also Herrup, "New Shoes and Mutton Pies," passim.

159. Sharpe, "Enforcing the Law," 109-110, 112. See also Sharpe, Crime in Seventeenth-Century England .

160. See Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago, 1981), 157-193.

161. See Langbein, Prosecuting Crime in the Renaissance , 262.

162. Thomas Cooper, The Mysterie of Witchcraft (London, 1617), 274-276, 277-278. Cooper would also have permitted torture. Sixteenth-and seventeenth-century chapbooks also reveal that in witchcraft cases the magistrate in both investigation and examination went well beyond the behavior prescribed by the Marian statutes. Langbein, Prosecuting Crime in the Renaissance , 52.

163. Similar language appears in Bolton, Justice of the Peace , 95.

164. Dalton, Country Justice , 1635 ed., 209. Robert Filmer, writing in 1653, indicated that "while 'presumptions' and 'signs' could and should be used during the magistrate's examination, each of these might be wrong or misleading." Advertisement to the Grand Jurymen of England , 1680 ed. (London, 1653), 308.

165. Bail would not have been possible in cases of witchcraft.

166. See Keith Thomas, Religion and the Decline of Magic (New York, 1979); Christina Larner, "Crimen Exceptum? The Crime of Witchcraft in Europe," in Crime and the Law , ed. Gatrell et al., 49-75. An American magistrate's handbook of 1736 recognized the exercise of judicial discretion in cases of witchcraft. The justice was advised to refuse information "without strong and apparent Cause provided by sufficient witnesses." George Webb, The Office and Authority of a Justice of the Peace , (Williamsburg, 1736), 361. See also Barbara Shapiro, Probability and Certainty in Seventeenth-Century England (Princeton, 1983), 194-226; Brian Levack, The Witch-hunt in Early Modern Europe (London, 1987).

167. In the 1715 edition of Country Justice , long after witchcraft had ceased to be prosecuted, a note was added on the role of "natural causes in diverse strange diseases." Unless the diabolic compact could be proved continue

by "evident marks or tokens," it was not sufficient to suppose that the devil was the agent. Dalton, Country Justice , 1715 ed., 386.

168. Bolton, Justice of the Peace , 95.

169. 3 Edw. 1, c. 15. For an excellent summary of the history of bail, see Hermine Herla Meyer, "Constitutionality of Pretrial Detention," Georgetown Law Journal 50 (1972): 1139-1186. By 1275 the concept of varying degrees of suspicion was in common use.

170. Hawkins, Pleas of the Crown , 2: 98, 99. Hawkins seems to have been doubtful about whether "former scandalous behavior" plus slight evidence of the current offense were sufficient to create such a presumption.

171. T. F. T. Plucknett, "A Commentary on the Indictments," in Proceedings before Justices of the Peace , ed. B. H. Putnam (London, 1938), 433. See Meyer, "Constitutionality of Pretrial Detention," 1157-1158; for post-1952 developments, see 116off.

172. See Bertram Osborne, Justices of the Peace, 1361-1848 (Shaftesbury, Dorset, 1960), 35-71; Norma Landau, The Justices of the Peace, 1679-1760 (Berkeley, 1984).

173. Sheppard, The Whole Office . Edmund Bohun, Justice of the Peace, His Calling: A Moral Essay (London, 1684), 11, 35, 36, 41, 57. He also discussed the problems of malicious suits and bias, both favorable and hostile, (114-116). For a late eighteenth-century work emphasizing the justice's role as truth seeker, see Thomas Gisborne, An Enquiry into the Duties of Men in the Higher and Middle Classes of Society (London, 1794), 278, 280-282. For the importance of the changing religious and philosophical views on the image of justice on the criminal law, see Randall McGowen, "The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century England," Buffalo Law Review 32 (1983): 89-125, and McGowen, "The Changing Face of God's Justice: The Debates over Divine and Human Punishment in Eighteenth-Century England," Criminal Justice History (1986): 63-97.

174. Lambarde, Eirenarcha , 1619 ed., 116-121. Such sureties provided a kind of "preventative justice." Blackstone, Commentaries , 4: 251. The justices were obliged to demand sureties of those whom "there is probable grounds to suspect of future misbehavior" (emphasis mine). The judgment of the magistrates thus also was to be exercised so as to prevent future offenses.

175. Dalton's Country Justice was purchased by the General Courts of Virginia and Massachusetts. See Hugh Ranken, Criminal Trial Proceedings in the General Court of Colonial Virginia (Williamsburg, 1965), 44-75; Conductor Generalis, or the Office and Duty of the Justice of the Peace (Philadelphia, 1722). This volume was largely taken from Nelson's Office continue

and Authority of a Justice of the Peace . Enlarged editions were published in Philadelphia and New York in 1749. The 1764 edition was largely based on Burn. See also Webb, Office and Authority of a Justice of the Peace ; Richard Starke, Office and Authority of the Justice of the Peace (Williamsburg, 1774); Hening, New Virginia Justice . The Webb handbook was almost identical to that of Burn. See Boyer, "Justice of the Peace in England and America," 315-326.

176. Joseph H. Smith, Colonial Justice in Western Massachusetts, 1639-1672 , 145. See also William Nelson, Americanization of the Common Law (Cambridge, Mass., 1975), 106-107.

177. Gail Marcus, "'Due Execution of the Generall Rules of Righteousnesse': Criminal Proceedings in New Haven Town and Colony, 1638-1658," in Saints and Revolutionaries: Essays in American History , ed. David Hall (New York, 1984), 103, 108. The New Haven Colony adopted neither grand jury indictment nor jury trial.

178. Kathryn Preyer, "Penal Measures in the American Colonies: An Overview," American Journal of Legal History 28 (1982): 330; Rankin, Criminal Trial Proceedings , 78-79. Starke, Office and Authority of the Justice of the Peace , 114-115. The examining court is unmentioned by Hening (1793), although it was printed in Virginia and designed for the Virginia market. This is further evidence that handbooks did not always reflect practice!

179. Webb, Office and Authority of a Justice of the Peace , 32, citing Dalton, Country Justice , 432.

180. Ibid., 361.

179. Webb, Office and Authority of a Justice of the Peace , 32, citing Dalton, Country Justice , 432.

180. Ibid., 361.

181. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 675, citing Hawkins, Pleas of the Crown , 87.

182. David Freestone and J. C. Richardson, "The Making of English Criminal Law (7): Sir John Jervis and His Acts," Criminal Law Review (1980): 6. See also W. W. Pue, "The Criminal Twilight Zone: Pretrial Procedures in the 1840s," Alberta Law Review 21 (1983): 335-363; John Beattie, Crime and the Courts in England, 1660-1800 (Princeton, 1986), 268-281.

183. Beattie, Crime and the Courts , 268-281.

184. Ibid., 359-361. See also John Langbein, "Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources," University of Chicago Law Review 50 (1983): 1-136, and Langbein, "The Criminal Trial before the Lawyers," University of Chicago Law Review 45 (1978): 263-306.

183. Beattie, Crime and the Courts , 268-281.

184. Ibid., 359-361. See also John Langbein, "Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources," University of Chicago Law Review 50 (1983): 1-136, and Langbein, "The Criminal Trial before the Lawyers," University of Chicago Law Review 45 (1978): 263-306.

185. See Landau, Justices of the Peace , 184-187, 189-190, 200, 203.

186. Beattie, Crime and the Courts , 274, citing Covent Garden Journal , 25 February 1752. See also John Styles, "Sir John Fielding and the continue

Problem of Criminal Investigation in Eighteenth-Century England," Transactions of The Royal Historical Society , 5th ser., vol. 33 (1983): 127-150.

187. Quoted in Beattie, Crime and the Courts , 275.

188. Blackstone, Commentaries , 4: 293. Burn's 1772 edition of Justice of the Peace retains Dalton's traditional language forbidding discretion (1: 524-525). Costs were transferred from the accuser to the public in the 1750s to increase prosecution.

189. See Jennifer Davis, "A Poor Man's System of Justice: The London Police Courts in the Second Half of the Nineteenth Century," Historical Journal 171 (1984): 309-335. The London police courts were established in 1792 and took their final form in 1838, replacing the metropolitan "trading justices." Like their rural counterparts, they conducted a great deal of nonjudicial business, acted as mediators and arbitrators, and by summary authority convicted and punished a large variety of small offenses.

190. Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 , 4 vols. (London, 1948-1968), 1: 715.

191. Charles Cottu, The Administration of Criminal Justice in England (London, 1822), 113. He reported that the disappointed complainant might still take his case directly to the grand jury. Cottu felt, however, that compared to their Continental counterparts, the justices were not anxious to discover the motivation for crimes and made no effort to search for proofs (33, 38). They thus did not appear to have performed a prosecutorial role.

192. Patrick Devlin, Criminal Prosecution in England (New Haven, 1958), 12.

193. Beattie, Crime and the Courts , 341. See also C. K. Allen, "The Presumption of Innocence," in Legal Duties and Other Essays in Jurisprudence (Oxford, 1931), 253-294.

194. Beattie, Crime and the Courts , 276, citing Chitty, Criminal Law , 2d ed., 4 vols. (1826), 1: 89.

195. 11 and 12 Vict., c. 42. See Freestone and Richardson, "The Making of English Criminal Law." The 1848 act also codified summary procedure. For a discussion of the Jervis Act and pretrial procedure of the 1840s, see Pue, "The Criminal Twilight Zone," 335-363. Legislation in 1867 permitted the defense to call witnesses as well.

196. 30 and 31 Vict., c. 35, s. 2. See F. W. Maitland, Justice and Police (London, 1985), 129. Interestingly, by 1883 Stephen felt that the preliminary hearing had become too judicialized and was becoming a separate trial. History of the Criminal Law of England , 1: 229.

197. Rex v. Governor of Brixton Prison, Ex parte Bidwell, 118, 305. In 1967 the procedure was considerably simplified. break

198. See Phillip B. Kurland and D. W. M. Waters, "Public Prosecutions in England, 1854-1879: An Essay on English Legislative History," Duke Law Journal (1959): 493-562.

199. For the role of advertising in England c. 1700 and 1730 see Styles, "Print and Policy," 55-95. See also David Philips, "Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England, 1760-1860," in Policing and Prosecution in Britain, 1650-1850 , ed. Douglas Hay and Francis Snyder (Oxford, 1989), 114-170, and P. J. R. King, "Prosecuting Associations and Their Impact on Eighteenth-Century Essex," also in Policing and Prosecution , 171-209. King's study indicates that the associations failed to make a significant impact on jury verdicts.

200. There is still no satisfactory explanation for the origins of the American public prosecutor. Dutch, Scottish, and French antecedents have been suggested. See Joan E. Jacoby, The American Public Prosecutor: A Search for Identity (Lexington, Mass., 1980), 3-4, 19-20. Congress established the office of the attorney general and created U.S. attorneys in 1789. The Canadians also developed a form of public prosecution. Jacoby traces the transformation from a weak, minor court official to a central law-enforcement officer. See also Joseph Kress, "Progress and Prosecution," in Crime and Justice in America, 1776-1976 , ed. Graeme R. Newman (Philadelphia, 1976).

201. Jacoby, American Public Prosecutor , 29-30, 138-142, 146-159.

202. Ibid., 29-30, 32. For the relationship between grand jury and prosecutor see 138-142.

201. Jacoby, American Public Prosecutor , 29-30, 138-142, 146-159.

202. Ibid., 29-30, 32. For the relationship between grand jury and prosecutor see 138-142.

203. Munn v. Dupont, 3 Wash. 37 (1811).

204. Bacon v. Towne, 4 Cush. (Mass.), 238 (1849).

205. Ibid.; Bacon v. Towne, 4 Cush. (Mass.), 233.

204. Bacon v. Towne, 4 Cush. (Mass.), 238 (1849).

205. Ibid.; Bacon v. Towne, 4 Cush. (Mass.), 233.

206. Humphries v. Parker, 52 (Maine), 505 (1864).

207. Greer v. Whilfield, 4 Lea (Tenn.), 90 (1879).

208. Graham Greene, Our Man in Havana (London, 1970), 164.

1. See Adhemar Esmein, A History of Continental Criminal Procedure in Specific Reference to France (Boston, 1913); Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass., 1983); Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, 1986); Walter Ullmann, "Medieval Principles of Evidence," Law Quarterly Review 62 (1946): 77-87; Andre Laingue and Arlette Lebigry, Histoire du droit penale, 2: La procedure criminelle (Paris, 1986); Raoul Van continue

Caenegem, "History of European Civil Procedure," International Encyclopedia of Comparative Law , vol. 16 (Tübingen, 1973), 2, 3-79.

2. The Romano-canon system of proof was already in place in the northern province by the late thirteenth century, and by the early fourteenth century it was fully implemented in the two English archdioceses. See Charles Donahue, "Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law," in On the Laws and Customs of England , ed. Morris Arnold et al. (Chapel Hill, 1981), 141. While the English ecclesiastical courts took over the system of proof outlined in the academic treatises, some variation existed in practice. Thus some testimony was accepted from those who were not eye-witnesses, and some who testified should technically have been disqualified (127-158).

3. Theodore Plucknett, A Concise History of the Common Law , 5th ed. (Boston, 1956), 298, 433. Bracton's rules also echo canonist witness disqualifications. Bracton was first printed in 1569. See also Plucknett, "The Relations between Roman Law and English Common Law," University of Toronto Law Journal 2 (1939): 24.

4. Michael Dalton, The Country Justice (London, 1618), 261-262.

5. John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, 1974), 124.

6. See Richard Chamberlain, The Complete Justice (London, 1681), 449.

7. See J. S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 (Princeton, 1988).

8. Sir Thomas Smith, De Republica Anglorum (Cambridge, 1906), 98.

9. Sir John Fortescue, De Laudibus Legum Anglie , ed. and trans. S. B. Chrimes (Cambridge, Mass., 1942), chaps. 25-26.

10. Smith, De Republica Anglorum , 99-101. See also 67, 79, 80. For discussions of witnesses who are jurors and infamous and interested witnesses see Anon., The Law of Evidence , 2 vols. (Savoy, 1717), 8, 20-66. Richard L. Marcus, "The Tudor Treason Trials: Some Observations on the Emergence of Forensic Themes," University of Illinois Law Review (1984): 698, 699-701, citing Trial of Udall (1590), 1 State Trials , 1281; Kevin Teeven, "Problems of Proof and Early English Contract Law," Cambrian Law Review (1984): 54, 55.

11. Geoffrey Elton, The Tudor Constitution (London, 1960), 67-68, 72-76.

12. Treason Act, 13 Car. 3, c. 1. For discussion of the evolution of the 1696 treason legislation, see Samuel Reznick, "The Statute of 1696: A Pioneer Measure in the Reform of Judicial Procedure in England," Jour - soft

nal of Modern History 2 (1930): 5-26; Walter Simon, "The Evolution of Treason," Tulane Law Review 35 (1961): 669-698; Lamar Hill, "The Two-Witness Rule in English Treason Trials: Some Comments on the Emergence of Procedural Law," American Journal of Legal History 12 (1968): 95-111.

13. T. B. Howell, Complete Collection of State Trials , 34 vols. (London, 1809-1826), 2: 15-18. The issue of a single witness was also raised in the Trial of John Fisher, Bishop of Rochester (1535), 1 State Trials , 401, 402, and the Trial of Sir Nicholas Throckmorton (1554), 1 State Trials , 880, 886. When Bacon, during his impeachment trial of 1620, objected to a single witness as insufficient, Coke replied that one witness was sufficient especially to prove "a work of darkness." 2 State Trials , 1093.

14. See John H. Wigmore, "The Required Number of Witnesses: A Brief History of the Numerical System in England." Harvard Law Review 15 (1901): 82-108.

15. Chamberlain's Complete Justice (London, 1681) lists offenses that required either one or two witnesses. His rather lengthy list of offenses requiring two witnesses were all established by statute, perhaps suggesting the Crown and Parliament were more willing to invoke the two-witness rule. Laymen may have been less suspicious of Romano-canon features than was the legal profession. The statutes cited include those passed during the reigns of Henry VIII, Edward VI, Elizabeth, James I, and Charles II (450). Two witnesses were required to convict a woman for concealing the death of her child. 21 Jac., c. 27 (1623). Perjury, too, required two witnesses. Legal commentators such as Hale who contrast the benefits of the English legal system with that of the Continent, however, continue to emphasize that English juries were not required to have a specified number of witnesses. Sir Matthew Hale, History and Analysis of the Common Law of England (London, 1820), 346-347. Wigmore suggests that most perjury cases prior to 1640 had been tried by Star Chamber, which, like Chancery and the ecclesiastical courts, regularly employed the two-witness rule, and that the two-witness requirement continued after such cases were transferred to the common-law courts. Adultery, which was made a felony in 1650 and required two witnesses, also had been previously tried by the ecclesiastical courts.

16. Robert Boyle, "Some Considerations about the Reasonableness of Reason and Religion," in The Works of Robert Boyle (London, 1772), 4: 182.

17. Maija Jansson, "Matthew Hale on Judges and Judging," Journal of Legal History 9 (1989): 208. Jewish law "expected a full evidence to convict such a malefactor and would not pass that sentence only upon con- soft

nections and implorations of circumstances that contained not in themselves a full evidence."

18. Donald Veall, The Popular Movement for Law Reform, 1640-1660 (Oxford, 1970), 128, 154; Stuart E. Prall, The Agitation for Law Reform during the Puritan Revolution, 1640-1660 (The Hague, 1966), 71. See also Lilburne, "Large Petition of the Levellers" (1647), in Puritanism and Liberty , ed. A. S. P. Woodhouse (Chicago, 1938), 322-323; Jansson, "Matthew Hale on Judges," 208.

19. Prall, Agitation for Law Reform , 22. Admiralty, which employed civilian procedure, was left alone during the Commonwealth and Protectorate (34).

20. Edwin Powers, Crime and Punishment in Early Massachusetts, 1620-1692 (Boston, 1966), 91. The phrase "that which is equivalent" was interpreted to mean one clear witness and "concurrent and concluding circumstances." See also Gail Marcus, "'Due Execution of the Generall Rules of Righteousnesse': Criminal Proceedings in New Haven Town and Colony, 1638-1658," in Saints and Revolutionaries: Essays in American History , ed. David Hall (New York, 1984).

21. It has been suggested that New Englanders were less fearful of the civil law than were the English because it was practiced by fellow Calvinists in Scotland and the Netherlands.

22. See William Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge, Mass., 1975).

23. See Gerard Reedy, The Bible and Reason: Anglicans and Scripture in Late Seventeenth-Century England (Philadelphia, 1985); Henry Van Leeuwen, The Problem of Certainty in English Thought, 1630-1690 (The Hague, 1963).

24. For Lilburne see Van Leeuwen, Problem of Certainty , 40; see also Edward Stillingfleet, Origines Sacrae (London, 1662), 237-240; Seth Ward, A Philosophical Essay toward an Eviction of the Being and Attributes of God , 5th ed., 1677 (London, 1654), 90, 99-100, 102, 117.

25. Sir Matthew Hale, The Primitive Origination of Mankind (London, 1677), 129. Hale occasionally employs civil law language. He notes "That evidence at Law which taken singly or apart makes but an imperfect proof, semiplena probatio , yet in conjunction with others, like Silurus his twigs, that were easily broken apart, but in conjunction or union were not to be broken" (130). Hale's Analysis of the Laws of England (London, 1713) appears to have been influenced by the structure of Justinian's Institutes .

26. Sir Matthew Hale, The History of the Common Law of England , continue

ed. Charles M. Gray (Chicago, 1971), 163-164. For a similar statement emphasizing jurors' knowledge of the accused, the nature of the offense, and the credit of the accused and his witnesses, see Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677), 4.

27. Hale, History of the Common Law , 165. Jurors were of the vicinage and "oftentimes know the Witnesses and the Parties" (167).

28. Ibid., 164, 165, 167.

27. Hale, History of the Common Law , 165. Jurors were of the vicinage and "oftentimes know the Witnesses and the Parties" (167).

28. Ibid., 164, 165, 167.

29. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 4, sec. 4.

30. Ibid., bk. 4, chap. 4, sec. 6.

31. Ibid., bk. 4, chap. 4, sec. 5.

29. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 4, sec. 4.

30. Ibid., bk. 4, chap. 4, sec. 6.

31. Ibid., bk. 4, chap. 4, sec. 5.

29. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 4, sec. 4.

30. Ibid., bk. 4, chap. 4, sec. 6.

31. Ibid., bk. 4, chap. 4, sec. 5.

32. Geoffrey Gilbert, The Law of Evidence (London, 1756), 121-161. The 1769 and 1788 editions are almost identical. The 1791 edition by Capel Lofft was much enlarged. For a discussion of the treatise tradition, see A. W. Simpson, "The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature," University of Chicago Law Review 48 (1981): 632-680.

33. Gilbert, Law of Evidence , 1756 ed., 150-151; see also 154-155. See also Capel Lofft, 1791 ed., 1: 403-409. John Morgan's Essays Upon the Law of Evidence , 2 vols. (London, 1789) is very similar to Gilbert. He notes one witness is sufficient to prove any single fact, although the concurrence of two or more corroborate the proof. He emphasizes the importance of observing the quality, age, education, understanding, behavior, and inclination of the witnesses. The credit of witnesses was to be judged from their state and dignity in the world. Their skill, knowledge, memory, and moral condition were also important. The lowest proof was the oath of one witness. Two witnesses were "one step higher" than one witness and were sometimes required by law. 1: 9, 12, 46-47, 293-294, 296. For a discussion of witness credibility in connection with the grand jury see Sir John Somers, The Security of English-Men's Lives (London, 1681), 38, 142. See also Joseph Keble, An Assistance to Justices of the Peace (London, 1683), 264; George Stanhope, The Duty of Witnesses. A Sermon (London, 1701). Stanhope, a chaplain to the king, employs the concept of moral certainty and suggests that two witnesses are usually required (26). The sermon was preached at the Maidstone Assizes before L. C. J. Holt and was published at the request of the high sheriff of Kent.

34. William M. Best, The Principles of the Law of Evidence , 6th ed. (London, 1875), 18-19, 20, 21, 22. See also 24.

35. Ibid., 102.

36. Ibid., 749.

34. William M. Best, The Principles of the Law of Evidence , 6th ed. (London, 1875), 18-19, 20, 21, 22. See also 24.

35. Ibid., 102.

36. Ibid., 749.

34. William M. Best, The Principles of the Law of Evidence , 6th ed. (London, 1875), 18-19, 20, 21, 22. See also 24.

35. Ibid., 102.

36. Ibid., 749.

37. John H. Wigmore, "History of the Hearsay Rule," Harvard Law Review 17 (1904): 436-458; R. W. Baker, The Hearsay Rule (London, continue

1950); Edward M. Morgan, Some Problems of Proof under the Anglo-American System of Litigation (New York, 1956), 106-140.

38. In 1650, jurors in Bennett v. Hartford were told that if they give evidence, it should be done in open court. Baker, Hearsay Rule , 10, citing (1650) Style 233. We do not yet know about the evolution of the concept that jurors were not to know facts on personal knowledge and "should be in a state of legal ignorance." Best, Principles of the Law of Evidence , 117. Hearsay evidence was rejected by Somers, in connection with grand jury "verdicts." Somers, Security of English-Men's Lives , 141.

39. See Barbara Shapiro, Probability and Certainty in Seventeenth-Century England (Princeton, 1983), 21, 274.

40. Hale, Primitive Origination of Mankind , 128.

41. Locke, Essay Concerning Human Understanding , bk. 4, chap. 14, sec. 10.

42. Wigmore, "History of the Hearsay Rule," 435, 445, 454. Edward M. Morgan, "Hearsay Dangers and the Application of the Hearsay Concept," Harvard Law Review 62 (1948): 180-181; Baker, Hearsay Rule , 7-9.

43. Edward Waterhouse, Fortescue Illustratus (London, 1663), 350.

44. Even after the hearsay exclusion was established, hearsay was considered acceptable if used to confirm or corroborate other testimony. This principle was employed in Raleigh's trial of 1603. It is to be found in Gilbert's Law of Evidence and was accepted until the end of the eighteenth century. Wigmore, "History of the Hearsay Rule," 443, 447. Several eighteenth-century texts connected the hearsay rule with the best evidence rule. Baker, Hearsay Rule , 15.

45. Best, Principles of the Law of Evidence , 377.

46. See Alessandro Giuliani, "The Influence of Rhetoric on the Law of Evidence and Pleading," Juridical Review 62 (1969): 216-251. For a more general discussion of rhetoric and English law, see D. S. Bland, "Rhetoric and the Law Student in Sixteenth-Century England," Studies in Philology 53 (1957): 498-508; R. J. Schoeck, "Rhetoric and Law in Sixteenth-Century England," Studies in Philology 50 (1953): 110-127; Wilfred Prest, "Dialectical Origins of Finch's Law," Cambridge Law Journal 36 (1977): 326-352. See also V. P. Mortari, "Dialectica e giurisprudenza: Studio sui trattati di dialettica legale del sec. XVI," Annali di Storia del Diritto 1 (1957): 293-401.

47. Quintilian, Institutes of the Orator (London, 1777), bk. 4, chap. 9.

48. Ibid.

47. Quintilian, Institutes of the Orator (London, 1777), bk. 4, chap. 9.

48. Ibid.

49. For a similar treatment in Cicero, see De partitione oratoria , Loeb Classical Library, vol. 4. Cicero considers the qualities of persons, e.g. continue

health, appearance, age, sex, intellectual abilities, moral character, emotional dispositions, social condition, education, occupation, associates, power, and wealth. The place and time (day, night, season) of the event are to be considered, as are the traces (weapon, blood, crying out). Also to be considered were trembling and changing color. Consideration of these circumstances of an action could lead to the discovery of probability. For a somewhat more elaborate treatment, see Cicero, De inventione , Loeb Classical Library, vol. 2.

50. For examples of this tradition see Tancred, Ordo iudiciarius ; William Durantis, Speculum iudiciale ; Albertus Gandinus, Tractatus de maleficiis ; Thomas de Piperata, Tractatus de fama ; Julius Clarus, Practica criminalis ; Joannes Menochius, De praesumptionibus, conjecturis, signis et indiciis, commentoris (1608); Antonius Matthaeus, De criminibus ; Prosper Farinaccius, Praxis et theorica criminales ; Josephus Mascardus, Les conclusiones probationum .

51. See Richard Fraher, "Conviction According to Conscience: The Medieval Jurist's Debate Concerning Judicial Discretion and the Law of Proof," Law and History Review 7 (1989): 23-88; Giorgia Alessi Palazzola, Prova legale e pena: La crisi del sistema tra evo medio e moderno (Naples, 1979). See also James Franklin, "The Ancient Legal Sources of Seventeenth-Century Probability," in The Uses of Antiquity in the Scientific Revolution , ed. S. Gaukroger, pub. forthcoming.

52. See Fraher, "Conviction According to Conscience," passim; Palazzola, Prova legale e pena , 61-66, 79-81; John Langbein, Torture and the Law of Proof (Chicago, 1977); Mirjan Damaska, "The Death of Legal Torture," Yale Law Journal 87 (1978): 866. The concept of half proof appears c. 1200 in the writing of Glossator Azo. Franklin, "Ancient Sources," citing Azo, Lectura super Codicem , bk. 4, tit. 1 (reprint, Turin, 1966), 254.

53. Bartolus pointed out that transient facts cannot be notorious. Fraher, "Conviction According to Conscience," 51-54. See also Damaska, "Death of Legal Torture," 867.

54. Fraher, "Conviction According to Conscience," 55-56. See also Palazzola, Prova legale e pena , passim.

55. The efforts of judges of the Parlement of Paris to gain control over and limit the use of torture by provincial judges not only reduced the use of judicial torture but also increased reliance on circumstantial evidence—evidence which constituted less than "legal proof." See Alfred Soman, "Criminal Jurisprudence in Ancien-Regime France: The Parlement of Paris in the Sixteenth and Seventeenth Centuries," in Crime and Criminal Justice in Europe and Canada , ed. Louis A. Knafla (Waterloo, Canada, 1981), 43-75, and "La justice criminelle aux XVIe-XVIIe siècles: continue

Le Parlement de Paris et les sièges subalternes," in La faute, la repression et le pardon: Philologie et histoire jusque à 1610 , vol. 1 (Brest, 1982), 16-52. Soman's research complements that of John Langbein. See Langbein, Torture and the Law of Proof . See also Damaska, "Death of Legal Torture," 860-883. The Carolina appears to insist on the necessity of full legal proof, but sixteenth-century Germany as well as France used the poena extraordinaria (867).

56. Palazzola, Prova legale e pena , 46-47. The same categories are to be found in Summa de ordine judiciario of Damoso, cited in Palazzola (47-48). James Franklin suggests that canonists and civilians developed gradations of proof from the Digest and that the violent-probable-light grading of presumptions can be found by the 1150s. In the mid-thirteenth century, Aquinas identified three varieties of suspicion. "One is violent, to the contrary of which proof is not admitted, as when someone is found alone with a woman, naked on a bed, in a secret place, at a time apt for intercourse. The second is the probable ( probabilis ). . . . Third is the rash, which arises from a light conjecture . . . although the first kind does not have the certainty of something actually sensed, or the certainty of demonstration, it does have certainty sufficient for proof in law. For the same kind of certainty is not required in all things, as is said in Aristotle's Ethics ." Quoted in Franklin, "Ancient Sources," 12. Aquinas also mentioned the half proofs of the lawyers.

57. Ibid., 115-117. Menochius also indicates that judges might condemn on the basis of presumption in the absence of full proof if penalties were diminished. Similar treatments are to be found in the treatises of Alciatus, Carpzov, and Matthaeus.

56. Palazzola, Prova legale e pena , 46-47. The same categories are to be found in Summa de ordine judiciario of Damoso, cited in Palazzola (47-48). James Franklin suggests that canonists and civilians developed gradations of proof from the Digest and that the violent-probable-light grading of presumptions can be found by the 1150s. In the mid-thirteenth century, Aquinas identified three varieties of suspicion. "One is violent, to the contrary of which proof is not admitted, as when someone is found alone with a woman, naked on a bed, in a secret place, at a time apt for intercourse. The second is the probable ( probabilis ). . . . Third is the rash, which arises from a light conjecture . . . although the first kind does not have the certainty of something actually sensed, or the certainty of demonstration, it does have certainty sufficient for proof in law. For the same kind of certainty is not required in all things, as is said in Aristotle's Ethics ." Quoted in Franklin, "Ancient Sources," 12. Aquinas also mentioned the half proofs of the lawyers.

57. Ibid., 115-117. Menochius also indicates that judges might condemn on the basis of presumption in the absence of full proof if penalties were diminished. Similar treatments are to be found in the treatises of Alciatus, Carpzov, and Matthaeus.

58. Cesare Beccaria, An Essay on Crimes and Punishment , 1983 ed., Brookline, Mass. (1764), 54-55.

59. See Paul Foriers, "La conception de la preuve dans l'école le droit natural," in La Preuve: Deuxième partie: Moyen âge et temps modernes . Recueils de la Société Jean Bodin pour l'histoire comparative des institutions (Brussels, 1965), 169-192.

60. Marcus, "Tudor Treason Trials," 702, citing 2 State Trials , 15.

61. Henry Bracton, On the Laws and Customs of England , ed. and trans. Samuel E. Thorne, 4 vols. (Cambridge, Mass., 1968), 4: 330. An edition appeared in 1640.

62. Ibid., 2: 386; see also 2: 404.

61. Henry Bracton, On the Laws and Customs of England , ed. and trans. Samuel E. Thorne, 4 vols. (Cambridge, Mass., 1968), 4: 330. An edition appeared in 1640.

62. Ibid., 2: 386; see also 2: 404.

63. The bloody sword example of violent presumption was a standard of medieval jurists. Some Romano-canonist medieval lawyers, however, suggested the possibility of self-defense or other explanations. Ullmann, "Medieval Principles of Evidence," 86.

64. Sir Edward Coke, The First Part of the Institutes of the Lawes of continue

England: or, A Commentary upon Littleton (1628), sec. 1, 6b. Coke indicated in connection with charter, or feoffments, that where the witnesses were dead, violent presumption of continual and quiet possession "stands for a proofe." The bloody sword example of presumption also appears in William Staunford, Les plees del coron (London, 1557), 11b.3, c. 14. This volume is based primarily on Bracton and the yearbooks. There were 6 editions before 1600.

65. See Sir Edward Coke, Third Part of the Institutes of the Lawes of England (Philadelphia, 1853), chap. 104, 232.

66. Thus Coke noted that no presumptions were to be admitted against presumptions of law (ibid.). Wrongs shall never be presumed (ibid., 373). The Anglo-American presumption of innocence may be derived from this maxim.

67. An alternative approach was to reduce the standard further and allow half proofs for conviction. Jean Bodin advocated this approach to proof in witchcraft cases.

68. For several decades after the statutes both the common people and the governing classes believed in the possibility of witchcraft. Without the willing participation of accusers, justices of the peace, grand juries, judges, and juries, the processes of arrest, examination, indictment, trial, and punishment could not have occurred. For discussion of witchcraft in England, see Alan Macfarlane, Witchcraft in Tudor and Stuart England (London, 1979); Keith Thomas, Religion and the Decline of Magic (New York, 1979); C. L'Estrange Ewen, Witch Hunters and Witch Trials (London, 1929); Shapiro, Probability and Certainty , 194-226. See also Christina Larner, "Crimen Exceptum? The Crime of Witchcraft in Europe," in Crime and the Law: The Social History of Crime in Western Europe Since 1500 , ed. V. A. C. Gatrell, et al. (London 1980), 49-75; Brian Levack, The Witch-hunt in Early Modern Europe (London, 1987).

69. Gifford thus invoked civil law standards for conviction. George Gifford, "Dialogue Concerning Witches and Witchcraft," in The Witchcraft Papers , ed. Peter Haining (1593; reprint, London, 1974); Thomas Cooper, The Mysterie of Witchcraft (London, 1617), 276-278.

70. John Cotta, The Trial of Witchcraft (London, 1616), 85. Cotta's work was dedicated to Sir Edward Coke and the legal profession. Reginald Scot, Discoverie of Witchcraft (1584; reprint, London, 1964), 42; see also 40-43. Scot, who considered most confessions to be "idle, false, inconstant and of no weight," came close to denying that witchcraft existed (61).

71. Dalton, Country Justice , 1618 ed., 273, 1 cap. 107. Convictions for witchcraft, however, had fallen off sharply by 1620 except for a brief flurry in the 1640s.

72. E.g., Richard Bolton, A Justice of the Peace in Ireland (Dublin, 1683), 95. break

73. Robert Filmer, An Advertisement to the Grand Jurymen of England Touching Witchcraft , 1680 ed. (London, 1653), preface, 308. Perkins's categorizations of proofs into "less sufficient" and "more sufficient" were, according to Filmer, used erroneously because his less sufficient really "meaneth insufficient." Indeed his "unsufficient sufficient proofs" were weaker and worse than his presumptions, which he confesses are "no proofs at all." Perkins's "less sufficient proofs" included proofs of red hot irons, scratching the suspected, and burning items belonging to the suspected. Perkins's "more sufficient proofs" were confession and the testimony of two witnesses (306, 309, 312).

The language of vehement suspicion and presumption also appear in the literature of colonial American witchcraft. Late seventeenth-century New Englanders appear to have been familiar with and perhaps puzzled by these concepts. In one case there was "just ground of vehement suspicion," but this was not deemed "Legally guilty according to Inditement." When the same party was brought to trial again a few years later (1680), the court decided the evidence was insufficient for indictment but was sufficient for punishment. There was "not full proof" that the individual was a witch, but "The Court vehemently suspects her so to be." The accused was imprisoned. In another case in which an individual was acquitted, the court indicated that the accused was "suspiciously Guilty of Witchcraft, but not legally guilty, according to lawe and evidence wee have received." When the evidence was strong, but insufficient, the accused might be required to pay court costs and might be punished. Carol F. Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New England (New York, 1989), 56, 59, 60.

74. 1 State Trials , 1053, 1054, 1065, 1070, 1071. See also Trial of Udall (1590), 2 State Trials , 1281.

75. 2 State Trials , 18. In the 1606 trial of Henry Garnet the judge referred "to many apparent proofs, and evident presumptions" while the defendant, like Campion a few years earlier, asked that the jury not credit things where there was "no direct proof" nor "to condemn him by circumstances or presumptions." 2 State Trials , 253, 256.

76. Keith Thomas, "The Puritans and Adultery: The Act of 1650 Reconsidered," in Puritans and Revolutionaries , ed. Donald Pennington and Keith Thomas (Oxford, 1978), 279, citing Daniel Taylor, Certain Queries (London, 1651), 9-10, and William Sheppard, England's Balme (London, 1657), 159-160. Adultery had previously been under the jurisdiction of the ecclesiastical courts. The act of 1650 resulted in very few convictions (280).

77. The English also received some instruction on the principles of the civil law from such English works as Robert Wiseman's Law of Laws, or the Excellency of the Civil Law (London, 1657). Wiseman introduced continue

the standard distinction between direct and indirect proofs. He indicated that the civil law did not require "direct and positive proof" but would admit of "strong and forcible presumptions also, that by arguments of conjecture drawn from one thing to another, brings forth the certainty of the things in issue." Wiseman, Law of Laws , 1686 ed., 27, citing Wiesenbach. With appropriate reference to Menochius on presumption, he indicates that presumptions might have the same force as proofs. He explained, however, that no proof, presumptive or direct, was sufficient without the testimony of two witnesses and cited the Romano-canon maxim that the testimony of one witness in serious crimes was the same as that of no witnesses at all (37). See also Waterhouse, Fortescue Illustratus , 260.

For further discussion of the civil law and the civilians in England, see Brian Levack, The Civil Lawyers in England, 1603-1641: A Political Study (Oxford, 1973); Theodore Plucknett, "Roman Law and English Common Law," 24-50; Peter Stein, "Continental Influences in English Thought, 1600-1900," in La Formazione Storica del diretto moderno in Europa , ed. L. S. Olschki (Florence, 1977), 1105-1125; Dafydd Jenkins, "English Law and the Renaissance, Eighty Years On: In Defense of Maitland," Journal of Legal History 2 (1981): 107-142; Gino Gorla and Luigi Moccia, "A 'Revisiting' of the Comparison between 'Continental Law' and 'English Law,'" Journal of Legal History 2 (1981): 143-156; Luigi Moccia, "English Attitudes to the 'Civil Law,'" Journal of Legal History 2 (1981): 157-169; J. H. Baker, "English Law and the Renaissance," Cambridge Law Journal 44 (1985): 46-61. See also articles by Daniel R. Coquillette cited in Chapter 3 and bibliography.

78. Coke, Third Part of the Institutes , chap. 104; Sir Matthew Hale, Historia Placitorium Coronae (London, 1734), 239. The recent effort to interpret Hale's willingness to accept less than normal evidence in cases of witchcraft and rape as the result of his hostility to women fails to take into account that these crimes fell into the traditional category of infrequently witnessed crimes. See Gilbert Geis, "Lord Hale, Witches and Rape," British Journal of Law and Society 5 (1978): 26-44. But see David Lanham, "Hate, Misogyny and Rape," Criminal Law Review 7 (1983): 148-166.

79. The Trial of John Giles (London, 1681), 144, 54.

80. The Trial of Dover , in Howell, 6 State Trials , 13, 559.

81. The True Narrative , Old Bailey Trials, 2.

82. Ibid., 3.

81. The True Narrative , Old Bailey Trials, 2.

82. Ibid., 3.

83. 7 State Trials , 726.

84. An Account of . . . The Tryal of Mr. Edward Fitzharris (London, 1681), 1. break

85. Trial of Carr (London, 1681), 14.

86. Ibid., 22-23.

85. Trial of Carr (London, 1681), 14.

86. Ibid., 22-23.

87. Gilbert Burnet, The Life and Death of Sir Matthew Hale (London, 1682), 192.

88. Giles Dunscombe, Trials Per Pais: or the Law of England Concerning Juries by Nisi Prius (London, 1702), preface. Numerous editions appeared between 1665 and 1793.

89. William Hawkins does not discuss circumstantial evidence but refers to violent presumptions of guilt in the context of bail. Those under violent presumption of guilt, e.g., those taken with the thing stolen or those known as notorious thieves, ought not be bailed for a "fresh felony whereof there is probable evidence against them." William Hawkins, A Treatise of the Pleas of the Crown (London [in The Savoy], 1724), 2:98.

90. Argument from something like circumstantial evidence was common in the writings of natural theologians attempting to prove the existence of God from his effects or works. For the best-known late seventeenth-century example, see John Ray, The Wisdom of God Manifested in the Works of the Creation (London, 1691). This mode of thought, typical of the late seventeenth and early eighteenth centuries, culminates in the work of Bishop Butler. Butler emphasized that the "Weight of circumstantial evidence" was "very often altogether as convincing, as that which is the most express and direct." Joseph Butler, The Analogy of Religion, Natural and Revealed to the Constitution and Course of Nature (London, 1736), 272.

91. The Trial of Josh Hill , 11 State Trials , 172.

92. 13 State Trials , 55.

93. Blackstone appears to equate circumstantial evidence with presumption. William Blackstone, Commentaries on the Laws of England , 4 vols. (London, 1765-1769), 3: 371.

94. The Trial of Mary Blandy , in Howell, 18 State Trials , 1186, 1187. See also "The Trial of John Woodburne," Collection of State Trials (London, 1741), 378.

95. 18 State Trials , 1229, 1292, 1293, 1296, 1297, 1298, 1299, 1300, 1301.

96. Ibid., 1314, 1316.

95. 18 State Trials , 1229, 1292, 1293, 1296, 1297, 1298, 1299, 1300, 1301.

96. Ibid., 1314, 1316.

97. William Wills, An Essay on the Principles of Circumstantial Evidence , 1857 ed. (London, 1838), 44, citing Donellan's case; see also 45-46. See also A Defense and Substance of the Trial of John Donellan (London, 1781).

98. William Paley, The Principles of Moral and Political Philosophy , 9th ed., Boston, 1818 (London, 1795), 354-355. Nine editions had been issued by 1818. break

99. Ibid., 355.

98. William Paley, The Principles of Moral and Political Philosophy , 9th ed., Boston, 1818 (London, 1795), 354-355. Nine editions had been issued by 1818. break

99. Ibid., 355.

100. Quoted in Wills, Circumstantial Evidence , 44, from Edmund Burke, Works , 2: 623. For a discussion of the relative value of direct and indirect (circumstantial) evidence, see 42-50. For a discussion of the eighteenth-century preference for circumstantial evidence and its impact on the development of the novel, see Alexander Welsh, "Burke and Bentham on the Narrative Potential of Circumstantial Evidence," New Literary History 21 (1989-1990): 607-627.

101. Francis Snyder, "Using the Criminal Law," in Policing and Prosecution in Britain, 1750-1850 , ed. Douglas Hay and Francis Snyder (Oxford, 1989), 47. There were also criminal gangs who staged crimes that they intended to be discovered so that gang members could testify against those whom they had ensnared into participating in the staged felony. See Ruth Paley, "Thief-takers in London in the Age of the McDaniel Gang, c. 1745-1754," in Policing and Prosecution , 301-343. See also David Philips, "Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England, 1760-1860," in Policing and Prosecution , 113-170.

102. Jean Domat, Civil Law in Its Natural Order , trans. W. Strahan, 2 vols. (Boston, 1853), 1: 790, 791.

103. Ibid., 1: 817. See also 1: 795. The indicia were facts; conjecture and presumptions were what was reasoned about these facts. See also Foriers, "La conception de la preuve dans l'école le droit natural," 169-192.

102. Jean Domat, Civil Law in Its Natural Order , trans. W. Strahan, 2 vols. (Boston, 1853), 1: 790, 791.

103. Ibid., 1: 817. See also 1: 795. The indicia were facts; conjecture and presumptions were what was reasoned about these facts. See also Foriers, "La conception de la preuve dans l'école le droit natural," 169-192.

104. Domat, Civil Law , 1: 792-793.

105. Ibid., 1: 818.

106. Ibid., 1: 791, 795, 818. Domat did not deviate from the two-witness rule.

104. Domat, Civil Law , 1: 792-793.

105. Ibid., 1: 818.

106. Ibid., 1: 791, 795, 818. Domat did not deviate from the two-witness rule.

104. Domat, Civil Law , 1: 792-793.

105. Ibid., 1: 818.

106. Ibid., 1: 791, 795, 818. Domat did not deviate from the two-witness rule.

107. Robert Joseph Pothier, A Treatise on the Law of Obligations or Contracts , trans. William Evans, 2 vols. (Philadelphia, 1826), 1: 49, 60, 83, 100. Evans also suggests that the English become more receptive to the learning embodied in American cases and legal analysis. Evans was slightly defensive. While expressing deference to the judiciary, which he obviously thought too conservative and too reliant on precedent, he insisted on the "freedom of rational inquiry" to examine the "correct principles of legal reasoning." While "no friend to wanton innovation," he hoped to modify the law in some areas (1: 100-101).

108. Ibid., 2: 473.

109. Ibid., 2: 474, 477.

107. Robert Joseph Pothier, A Treatise on the Law of Obligations or Contracts , trans. William Evans, 2 vols. (Philadelphia, 1826), 1: 49, 60, 83, 100. Evans also suggests that the English become more receptive to the learning embodied in American cases and legal analysis. Evans was slightly defensive. While expressing deference to the judiciary, which he obviously thought too conservative and too reliant on precedent, he insisted on the "freedom of rational inquiry" to examine the "correct principles of legal reasoning." While "no friend to wanton innovation," he hoped to modify the law in some areas (1: 100-101).

108. Ibid., 2: 473.

109. Ibid., 2: 474, 477.

107. Robert Joseph Pothier, A Treatise on the Law of Obligations or Contracts , trans. William Evans, 2 vols. (Philadelphia, 1826), 1: 49, 60, 83, 100. Evans also suggests that the English become more receptive to the learning embodied in American cases and legal analysis. Evans was slightly defensive. While expressing deference to the judiciary, which he obviously thought too conservative and too reliant on precedent, he insisted on the "freedom of rational inquiry" to examine the "correct principles of legal reasoning." While "no friend to wanton innovation," he hoped to modify the law in some areas (1: 100-101).

108. Ibid., 2: 473.

109. Ibid., 2: 474, 477.

110. Geoffrey Gilbert, The Law of Evidence , London, 1756 ed., 160-161. In John Morgan's Essays upon the Law of Evidence , 2 vols. (London, 1789), treatment is identical to Gilbert's. 1: 9-10, 47.

111. Gilbert, Law of Evidence , London, 1795 ed., 304. Only two types continue

of presumption, "violent" and "probable," are listed because "light" and "rash" presumptions are worth nothing. Law of Evidence , 1756 ed., 160-161. The use of the categories in pretrial examination may explain how magistrates came to exercise discretion and drop weak cases. See p. 179.

112. Gilbert, Law of Evidence , ed. Capel Lofft, 4 vols. (London, 1791), 1: xxxvi; 1795 ed., 314-315.

113. Gilbert, Law of Evidence , 1756 ed., 159-161; 1769 ed., 160, 161.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

119. Richard Kirwan, Logick, or an Essay on the Elements, Principles and Different Modes of Reasoning (London, 1807), 238. Logick was dedicated to Lord Norbury, Chief Justice of Common Pleas in Ireland.

120. James Gambier, A Guide to the Study of Moral Evidence (Boston, 1834), 105.

121. Thomas Gisborne, An Enquiry into the Duties of Men in the Higher and Middle Classes of Society (London, 1794), 227-229.

122. Daniel McKinnon, The Philosophy of Evidence (London, 1812), vi, vii, 27.

123. Ibid., 55, 56, 57, 63-64. Hearsay was excluded not only for the practical reason that one could not cross-examine, but also because it did not "import a probability of sufficient strength to command" belief or to be "received as a satisfactory proof of the truth" (65). See also James Glassford, An Essay on the Principles of Evidence and Their Application to Subjects of Judicial Inquiry (Edinburgh, 1820), 582-592, 638-680. Glassford's study, intended for the general reader, attempts to incorporate the practice of English and Scottish law.

122. Daniel McKinnon, The Philosophy of Evidence (London, 1812), vi, vii, 27.

123. Ibid., 55, 56, 57, 63-64. Hearsay was excluded not only for the practical reason that one could not cross-examine, but also because it did not "import a probability of sufficient strength to command" belief or to be "received as a satisfactory proof of the truth" (65). See also James Glassford, An Essay on the Principles of Evidence and Their Application to Subjects of Judicial Inquiry (Edinburgh, 1820), 582-592, 638-680. Glassford's study, intended for the general reader, attempts to incorporate the practice of English and Scottish law.

124. Thomas Starkie, A Practial Treatise of the Law of Evidence , 1833 ed., 2 vols. (London, 1824).

125. Ibid., 1: 50-51, 397n.

126. Ibid., 1: 495, 515. Joseph Chitty's Practical Treatise of the Criminal Law , 4 vols. (London, 1816) still refers to circumstantial evidence in connection with secret crimes. Because of the "obscurity" of some kinds of crimes, juries are often compelled to "receive evidence which is merely circumstantial and presumptive" (1: 458). Presumptive evidence must arise from the facts and cannot be deduced from the defendant's conduct. Chitty therefore repudiates use of the knowledge that the defendant has previously committed similar offenses (1: 450, citing Samuel M. Phillipps, Treatise on the Law of Evidence (London, 1814), 70. He refers to the "curious distinctions" of the older writers on this topic.

124. Thomas Starkie, A Practial Treatise of the Law of Evidence , 1833 ed., 2 vols. (London, 1824).

125. Ibid., 1: 50-51, 397n.

126. Ibid., 1: 495, 515. Joseph Chitty's Practical Treatise of the Criminal Law , 4 vols. (London, 1816) still refers to circumstantial evidence in connection with secret crimes. Because of the "obscurity" of some kinds of crimes, juries are often compelled to "receive evidence which is merely circumstantial and presumptive" (1: 458). Presumptive evidence must arise from the facts and cannot be deduced from the defendant's conduct. Chitty therefore repudiates use of the knowledge that the defendant has previously committed similar offenses (1: 450, citing Samuel M. Phillipps, Treatise on the Law of Evidence (London, 1814), 70. He refers to the "curious distinctions" of the older writers on this topic.

124. Thomas Starkie, A Practial Treatise of the Law of Evidence , 1833 ed., 2 vols. (London, 1824).

125. Ibid., 1: 50-51, 397n.

126. Ibid., 1: 495, 515. Joseph Chitty's Practical Treatise of the Criminal Law , 4 vols. (London, 1816) still refers to circumstantial evidence in connection with secret crimes. Because of the "obscurity" of some kinds of crimes, juries are often compelled to "receive evidence which is merely circumstantial and presumptive" (1: 458). Presumptive evidence must arise from the facts and cannot be deduced from the defendant's conduct. Chitty therefore repudiates use of the knowledge that the defendant has previously committed similar offenses (1: 450, citing Samuel M. Phillipps, Treatise on the Law of Evidence (London, 1814), 70. He refers to the "curious distinctions" of the older writers on this topic.

127. Simon Greenleaf, Treatise on the Law of Evidence (Boston, continue

1844). The editor of the 1853 edition of Coke on Littleton also noted many civilian works on evidence, the "most admired" being those of Mascardus, Menochius, Everhardus, and Farinaccius. Sir Edward Coke, The First Part of the Institutes of the Laws of England; or a Commentary upon Littleton , 2 vols. (Philadelphia, 1853), 7a, n. 1.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

134. William Wills, An Essay on the Principles of Circumstantial Evidence , 3d ed., 1857 (London, 1838).

135. William Best, A Treatise on Presumptions of Law and Fact with the Theory and Rules of Presumptive or Circumstantial Proof in Criminal Cases (Philadelphia, 1845).

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

152. Best, Principles of the Law of Evidence , 6th ed.

153. Ibid., 49-50, 82, 85. The arithmetically calculated subdivisions of half proofs had made matters worse. The Napoleonic Code (1808) was a great improvement because it had abolished the system of legal proofs and instituted "free proof" or "intime conviction" (87). Best was nevertheless critical of "conviction intime" because he thought it implied that French juries were not limited to what was produced in court.

152. Best, Principles of the Law of Evidence , 6th ed.

153. Ibid., 49-50, 82, 85. The arithmetically calculated subdivisions of half proofs had made matters worse. The Napoleonic Code (1808) was a great improvement because it had abolished the system of legal proofs and instituted "free proof" or "intime conviction" (87). Best was nevertheless critical of "conviction intime" because he thought it implied that French juries were not limited to what was produced in court.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

172. Best also draws on Bentham as well as civilian and philosophical sources. See ibid., 174ff., 201. Alexander Burrill's Circumstantial Evidence (New York, 1856) also combines discussion of the nature of knowledge with Anglo-American legal materials and the evidentiary tradition of the civilians. Bentham, Burrill argued, had been among the first "to perceive its importance and comprehend the range of circumstantial evidence and its application." He also emphasized the importance of Starkie, Phillipps, Wills, and Best. Circumstantial Evidence , iii, iv, v. Burrill hoped to reach both a professional and a general audience, the latter especially because of the role of jurors, who could not properly discharge their duties without adequate instruction.

As I noted in Chapter 1, James Thayer, in A Preliminary Treatise on Evidence at the Common Law (Boston, 1898), differed from most of his predecessors in that he was less sympathetic to grounding the law of evidence in epistemology and logic, and he sharply differentiated the evidentiary tradition of law from that of the natural sciences. He differed from his predecessors as well in his willingness to employ civilian concepts. Indeed, he viewed the development of the doctrine of presumptions in England primarily as a nineteenth-century one. Preliminary Treatise , 343n. Presumptions, for Thayer, operated in advance of argument or evidence "or irrespective of it, taking something for granted; but assuming its existence." Presumptions were neither argument nor evidence but were a means of shortening argument and inquiry. Much of the law was expressed presumptively in the form of prima facie rules (314, 315). Thayer thus again marks something of a break with the systematizing continue

philosophical orientation of early nineteenth-century writers and signals a return to a more insular Anglophile point of view.

1. There has been some unhappiness with the fact that contemporary jurors, lawyers, and even judges are no longer familiar with the concept of moral certainty which typically accompanies the verbal formulation of the beyond reasonable doubt doctrine.

2. Also in place, although without doctrinal support, has been the centuries-long practice of jury nullification, in which juries who disapprove of the consequences of overwhelming evidence simply refuse to render a guilty verdict. See Thomas Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago, 1985).

3. Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass., 1983). Berman gives surprisingly little attention to the law of evidence. See also Mirjan Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, 1986).

1. See Lorraine Daston, Classical Probability in the Enlightenment (Princeton, 1988); Lorraine Daston, "Mathematics and the Moral Sciences: The Rise and Fall in the Probability of Judgments, 1785-1840," in Epistemological and Social Problems of the Sciences in the Early Nineteenth Century , ed. H. N. Jahnke and M. Otte (Dordrect, 1981), 287-309. See also Ian Hacking, The Emergence of Probability: A Philosophical Study of the Early Ideas About Probability (Cambridge, 1975); L. Kruger et al., eds., The Probabilistic Revolution , vol. 1 of Ideas in History (Cambridge, Mass., 1987), 100-125; Daniel Garber and Sandy Zabell, "On the Emergence of Probability," Archive for History of the Exact Sciences 21 (1979): 33-53; L. E. Maistrov, Probability Theory: A Historical Sketch , trans. K. S. Kotz (New York, 1974), 57, 57n; James Franklin, "The Ancient Legal Sources of Seventeenth-Century Probability," in The Uses of Antiquity in the Scientific Revolution , ed. S. Gaukroger (pub. forthcoming).

2. Daston, Classical Probability , 6-8, 299-304, 351.

3. Paul Foriers, "La conception de la preuve dans l'école le droit natural," in La Preuve: Deuxième partie: Moyen âge et temps modernes . Recueils de la Société Jean Bodin pour l'histoire comparative des institutions (Brussels, 1965), 169-192. break

4. "On the Measure of the Force of Testimony in Cases of Legal Evidence," Philosophical Transactions of the Royal Society 21 (1699): 361.

5. Daston, Classical Probability , 205. Richard Kirwan's Logick , 2 vols. (London, 1807), which refers to Capel Lofft's edition of Gilbert's Law of Evidence , attempted to do probability calculations of witness testimony. Kirwan concluded that the credibility of witnesses of high credibility could be calculated at nine-tenths and was superior to three witnesses of doubtful credit. Logick , 2: 309ff., 316, 324-325, 354. See also Augustus de Morgan, "An Essay on Probabilities," in the Cabinet Encyclopedia (London, 1838).

6. Daston, Classical Probability , 297, 297n, 372-373.

7. Thomas Starkie, Practical Treatise on the Law of Evidence , 2 vols., 1833 ed. (London, 1824), 1: 505, 506n; see also 496n-498n. See also James Glassford, An Essay on the Principles of Evidence and Their Application to the Subjects of Judicial Inquiry (Edinburgh, 1820), 42ff., 184-201.

8. William Wills, An Essay on the Principles of Circumstantial Evidence , 1857 ed. (London, 1838), 22-24.

9. William Best, A Treatise on Presumptions of Law and Fact with the Theory and Rules of Presumptive or Circumstantial Proof in Criminal Cases (Philadelphia, 1845), 205-208; Best, The Principles of the Law of Evidence (London, 1875), 87-93, 93n, 94 n. 10.

For twentieth-century attempts to apply probability theory and find mathematical equivalents for "beyond reasonable doubt," see Lawrence Tribe, "Trial by Mathematics: Precision and Ritual in the Legal Process," Harvard Law Review 84 (1971): 1329-1393; C. M. A. McCauliff, "Burdens of Proof, Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?" Vanderbilt Law Review 35 (1982): 1293-1335; Kenneth S. Brown and Douglas G. Kelley, "Playing Percentages and the Law of Evidence," University of Illinois Law Forum (1970): 23; J. Kaplan, "Decision Theory and the Fact Finding Process," Stanford Law Review 20 (1968): 1065. See also Jonathan Cohen, The Probable and the Provable (Oxford, 1977); Sir Richard Eggleston, "Sixth Wilfred Fullegar Memorial Lecture 'Beyond Reasonable Doubt,'" Monash Law Review 4 (1977): 1-19; Sir Richard Eggleston, "The Probability Debate," Criminal Law Review (1980): 678-688; Rita Simon and Linda Mahan, "Quantifying the Burdens of Proof," Law and Society Review 5 (1971): 319-342. break