Note 493 — Book XIV.

This is a most singular part of the Code of the age when Glanville lived. The obligation upon a man to defend himself, when another starts forward to accuse him, seems the necessary result of men living together in a state of society, and, as coeval with society itself, is strongly enforced by the municipal Laws of every Nation. This seems to have been the object of the punishment peine forte et dure. That singular institution shewed a strong, but rough, hand in the Legislature, more capable of directing its laws to a good and wise end, than nice or happy in selecting the means. The proceeding was naturally abolished as the Law became more refined—more humanized. As to the passage of our Author’s text now before us, it receives some light from Bracton—a suggestion, for which I am indebted to Mr. Reeves’s valuable work. Bracton speaks of an Indictment per famam patriæ, which, in all probability, was the same proceeding our Author alludes to. The foundation of that proceeding was a presumption entertained by good and grave men who deserved credit, and not the flying report of common conversation. (143. a.) But the subject receives additional elucidation from the Norman Code. In criminalibus tamen manifestis seu notoriis maliciis quos famâ publicâ seu fide dignorum testimonium nunciant culpabiles, non expectato Juris ordine debent arrestari et carceribus mancipari. (Grand Cust. c. 4. and 68.) In Mr. Kelham’s translation of Britton’s Pleas of the Crown, (page 18. Note 15.) the Reader will find the valuable record of an Indictment on suspicion. The Reader may also be referred to Bracton 143.—LL. Hen. 1. c. 45.—Mirror c. 2. s. 22. and Fleta L. 1. c. 21.