,
considering the age wherein he lived; that is, Chancellor Fortescue
in 'Praise of the Laws of England,' page 59. This is a very
ancient writer on the English law. His words are:--

"Indeed, one would rather, much rather, that twenty guilty persons
escape punishment of death, than one innocent person be condemned
and suffer capitally."

Lord Chief-Justice Hale says:--

"It is better five guilty persons escape, than one innocent person
suffer."

Lord Chancellor Fortescue, you see, carries the matter further, and
says:--

"Indeed, one had rather, much rather, that twenty guilty persons
should escape than one innocent person suffer capitally."

Indeed, this rule is not peculiar to the English law; there never
was a system of laws in the world in which this rule did not
prevail. It prevailed in the ancient Roman law, and, which is more
remarkable, it prevails in the modern Roman law. Even the judges in
the Courts of Inquisition, who with racks, burnings, and scourges
examine criminals,--even there they preserve it as a maxim, that
it is better the guilty should escape punishment than the innocent
suffer. _Satius_ _esse_ _nocentem_ _absolvi_ _quam_ _innocentem_
_damnari_. This is the temper we ought to set out with, and these
the rules we are to be governed by. And I shall take it for granted,
as a first principle, that the eight prisoners at the bar had better
be all acquitted, though we should admit them all to be guilty, than
that any one of them should, by your verdict, be found guilty, being
innocent.

I shall now consider the several divisions of law under which the
evidence will arrange itself.

The action now before you is homicide; that is, the killing of one
man by another. The law calls it homicide; but it is not criminal in
all cases for one man to slay another. Had the prisoners been on the
Plains of Abraham and slain a hundred Frenchmen apiece, the English
law would have considered it as a commendable action, virtuous and
praiseworthy; so that every instance of killing a man is not a crime
in the eye of the law. There are many other instances which I cannot
enumerate--an officer that executes a person under sentence of
death, etc. So that, gentlemen, every instance of one man's killing
another is not a crime, much less a crime to be punished with death.
But to descend to more particulars.

The law divides homicide into three branches; the first is
"justifiable," the second "excusable,"