ly was I do not
know. There would seem to be some reason in allowing defendants to
defend themselves, _at their own charges_, without exposing themselves
to amercement in case of failure.]

[Footnote 100: When any other witnesses than freeholders were required
in a civil suit, I am not aware of the manner in which their attendance
was procured; but it was doubtless done at the expense either of the
state or of the witnesses themselves. And it was doubtless the same in
criminal cases.]

[Footnote 101: "All claims were established in the first stage by the
oath of the plaintiff, except when otherwise specially directed by the
law. The oath, by which any claim was supported, was called the
fore-oath, or 'Praejuramentum,' and it was the foundation of his suit.
One of the cases which did not require this initiatory confirmation, was
when cattle could be tracked into another man's land, and then the
foot-mark stood for the fore-oath."--_2 Palgrave's Rise and Progress_,
&c., 114.]

[Footnote 102: Among the necessary expenses of suits, should be reckoned
reasonable compensation to counsel, for they are nearly or quite as
important to the administration of justice, as are judges, jurors, or
witnesses; and the universal practice of employing them, both on the
part of governments and of private persons, shows that their importance
is generally understood. As a mere matter of economy, too, it would be
wise for the government to pay them, rather than they should not be
employed; because they collect and arrange the testimony and the law
beforehand, so as to be able to present the whole case to the court and
jury intelligibly, and in a short space of time. Whereas, if they were
not employed, the court and jury would be under the necessity either of
spending much more time than now in the investigation of causes, or of
despatching them in haste, and with little regard to justice. They would
be very likely to do the latter, thus defeating the whole object of the
people in establishing courts.

To prevent the abuse of this right, it should perhaps be left
discretionary with the jury in each case to determine whether the
counsel should receive any pay--and, if any, how much--from the
government.]

CHAPTER IX.

THE CRIMINAL INTENT.

It is a maxim of the common law that there can be no crime without a
criminal intent. And it is a perfectly clear principle, although one
which judges have in a great measure overthrown in pr