under William the Third, but as to felony only
as late as the year eighteen 'thirty-six. It had
been fitfully relaxed during the eighteenth
century, prisoners' counsel being sometimes only
forbidden to address the jury, sometimes
forbidden also to cross-examine or examine
witnesses. There are lawyers living, who now see
their error, by whom this barbarous injustice
was fought for, as a precious relic of the wisdom
of the past. With about equal reason on their
side, there are lawyers now—Mr. Stephens
himself among them—who argue against the
substitution of an open Court of Appeal in Criminal
Cases, for the informal secret inquiry by the
Home-office. Only the other day, a cruel
murderess at Glasgow saved her life by adding, after
conviction, breach of the ninth commandment
to breach of the sixth. Against the maintained
conviction of the judge and jury who tried
her, she not only obtained this advantage
privately from the Home-office, but also procured
a sort of government endorsement of her lie
against an innocent old man, on unsworn
evidence privately taken, which the House of
Commons has since forced into publication, and
which proves to be so utterly worthless that, if
publicly sworn to in a court of justice, and
untouched by rebutter or by cross-examination, it
would have left the original conviction wholly
unaffected. No legal theorizing can get over
one such fact in support of the necessity of a
public Court of Criminal Appeal, in which
rehearing shall be strict and just to every side,
and any new evidence produced shall publicly
be weighed and sifted.

The modern law of the arrest of criminals—
consolidated not more than a dozen years ago—
makes no provision for the collection of evidence
or for the examination of suspicious persons,
nor does it impose on the police any particular
responsibility. Justices of the peace, whose
office was first established five hundred and three
years ago, can grant a warrant upon information
that any private person, interested or
disinterested, is at liberty to swear; and the
whole object of the law is in that case to ensure
the appearance of the suspected person.
Accusation is a voluntary matter, free to all; the
police are not under any legal obligation to accuse,
and are entrusted with no special authority.
No law constitutes them a detective force. As
for the magistrate, he brings peculiar responsibility
upon himself if he should venture to initiate a
prosecution.

Now, as to the definition of crimes and punishments
at different periods of our history.
Bracton's list was of treason, treasonable
forgery (of the king's seal or coinage), homicide,
mayhem—which meant an act disabling another
from self-defence—thus it was mayhem to knock
out a front tooth, but not mayhem to knock out
a grinder—arson, theft, and the lighter
misdemeanors.

The old definition of high treason was very
vague, and included appropriation without grant
of free warren in one's own land, or taking the
king's venison or fish. More recently there
have been temporary enactments, as when it was
made treason to publish objection to the marriage
between Henry the Eighth and Anne Boleyn, or
when Rouse the cook was boiled to death as a
traitor for poisoning many persons in Lambeth
Palace. As regards the sovereign, the present
conception of treason is a forcible resistance to
the law as represented by the royal authority.

Latitude of interpretation to stretch old
definitions to the size of modern needs, occurs
also in dealing with a murderer. There was an
early distinction between manslaughter, which
did not, and that worst sort of murder which did,
consist in the deliberate resolve of one person to
kill another and his doing it. "Malice
aforethought" seemed to be a convenient test of the
distinction between these two classes of homicide,
and that definition was accordingly adopted.
But it presently appeared that there were
wanton and sudden murders, without evidence of
grudge, as sudden killing by robbers of a stranger
who resists, and like crimes of deep dye, in
which "malice aforethought" could not be
directly proved. To meet such cases, the
doctrine of "implied malice" was invented, and
it is now murder with malice aforethought if a
person shooting at a hen, with the intent to steal,
should kill accidentally a person whom he did
not see.

Theft in old time could only be very direct
and simple. There is extant, a return made
towards the end of the reign of Edward the First
of the personal property in Colchester, and four
neighbouring townships, for the purpose of
assessment. There were no banks, and what
money a man had was in his house; yet the
largest sums of money possessed in the town
were one of thirty shillings, and one of ten
shillings—equal to twenty-five times as much in
present value. The return, otherwise, is of
brazen pots, drinking-cups, tablecloths, quarters
of rye and barley, bullocks, calves, and sucking-
pigs. Theft of such goods could only be direct
and obvious. A knotty point afterwards arose
as to the cutting down and carrying off of trees
on a man's land, trees not being movables;
afterwards it was held that a box of charters
was not movable, because charters related to
land, and "the box followed the nature of the
charters."

Another difficulty arose as civilisation spread
its more complex machinery over the land.
Taking out of possession was essential to
larceny; but debts, money due on bond, bills,
notes, &c., were not in possession, and therefore
were not capable of being taken out of possession.
The old principle and the old definition were as
usual considered sacred. But when it appeared
that servants robbed their masters with impunity
because they only stole what was entrusted to
them voluntarily, the law made theft by
servants, felony; and for the next two hundred
years, lawyers interpreted by arguing that the
possession of the servant is, under particular
circumstances, the possession of the master, so
that for a man to take out of his own possession
as a servant is to take out of his master's