[It is somewhat remarkable that almost the earliest, and perhaps the most popular work, on the excellence of the British Constitution, should have proceeded from the pen of a foreigner. John Louis De Lolme, the author of "The Constitution of England; or an Account of the English Government ;-in which it is compared, both with the Republican Form of Government, and the other Monarchies of Europe," was born at Geneva, in 1745. He came to England in the hope of attaining literary and political distinction. His writings were successful; but be died in much poverty in 1807.]

WHEN a person is charged with a crime, the magistrate, who is called in England a justice of the peace, issues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him he must then hear him, and take down in writing his answers, together with the different informations. If it appears, on this examination, either that the crime laid to the charge of the person who is brought before the justice was not committed, or that there is no just ground to suspect him of it, he must be set absolutely at liberty; if the contrary results from the examination, the party accused must give bail for his appearance to answer to the charge, unless in capital cases; for then he must, for safer custody, be really s committed to prison, in order to take his trial at the next sessions.

But this precaution, of requiring the examination of an accused person, previous to his imprisonment, is not the only care which the law has taken in his behalf: it has farther ordained, that the accusation against him should be again discussed, before he can be exposed to the danger of a trial. At every session the sheriff appoints what is called the grand jury. This assembly must be composed of more than twelve men, and less than twenty-four; and is always formed out of the most considerable persons in the county. Its function is to examine the evidence that has been given in support of every charge: if twelve of those persons do not concur in the opinion that an accusation is well grounded, the party is immediately discharged; if, on the contrary, twelve of the grand jury find the proofs sufficient, the prisoner is said to be indicted, and is detained in order to go through the remaining process.

On the day appointed for his trial, the prisoner is brought to the bar of the court, where the judge, after causing the bill of indictment to be read in his presence, must ask him how he would be tried; to

which the prisoner asnswers, By God and my country; by which he is understood to claim to be tried by a jury, and to have all the judicial means of defence to which the law entitles him. The sheriff then appoints what is called the petit jury: this must be composed of twelve men chosen out of the county where the crime was committed, and possessed of a landed income of ten pounds a year; their declaration finally decides on the truth or falsehood of the accusation.

As the fate of the prisoner thus entirely depends on the men who compose this jury, justice requires that he should have a share in the choice of them; and this he has through the extensive right which the law has granted him, of challenging, or objecting to, such of them as he may think exceptionable.

These challenges are of two kinds. One, which is called the challenge to the array, has for its object to have the whole panel set aside; it is proposed by the prisoner when he thinks that the sheriff who formed the panel is not indifferent in the cause; for instance, if he thinks he has an interest in the prosecution, that he is related to the prosecutor, or in general to the party who pretends to be injured.

The other challenges are called to the polls (in capita): they are exceptions proposed against the jurors, severally, and are reduced to four heads by Sir Edward Coke.

In fine, in order to relieve even the imagination of the prisoner, the law allows him, independently of the several challenges above-mentioned, to challenge peremptorily, that is to say, without showing any cause, twenty jurors successively.

When at length the jury is formed, and they have taken their oath, the indictment is opened, and the prosecutor produces the proofs of his accusation. But, unlike to the rules of the civil law, the witnesses deliver their evidence in the presence of the prisoner: the latter may put questions to them; he may also produce witnesses in his behalf, and have them examined upon oath. Lastly, he is allowed to have a counsel to assist him, not only in the discussion of any point of law which may be complicated with the fact, but also in the investigation of the fact itself, and who points out to him the questions he ought to ask, or even asks them for him. *

Such are the precautions which the law has devised for cases of common prosecutions; but in those for high treason, and for misprision of treason, that is to say, for a conspiracy against the life of the King, or against the State, and for a concealment of it,-accusations which suppose a heat of party and powerful accusers, the law has provided for the accused party farther safeguards.

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First, no person can be questioned for any treason, except a direct attempt on the life of the King, after three years elapsed since the offence. 2. The accused party may, independently of his other legal grounds of challenging peremptorily, challenge thirty-five jurors. 3. He may have two counsel to assist him through the whole course of the proceedings. 4. That his witnesses may not be kept away, the

This last article, however, is not established by law, except in cases of treason; it is done only through custom and the indulgence of the judges.

judges must grant him the same compulsive process to bring them in, which they issue to compel the evidences against him. 5. A copy of his indictment must be delivered to him ten days at least before the trial, in presence of two witnesses, and at the expense of five shil lings; which copy must contain all the facts laid to his charge, the names, professions, and abodes, of the jurors who are to be on the panel, and of all the witnesses who are intended to be produced against him.

When, either in cases of high treason, or of inferior crimes, the prosecutor and the prisoner have closed their evidence, and tlie witnesses have answered to the respective questions both of the bench and of jurors, one of the judges makes a speech, in which he sums up the facts which have been advanced on both sides. He points out to the jury what more precisely constitutes the hinge of the question before them; and he gives them his opinion both with regard to the evidences that have been given, and to the point of law which is to guide them in their decision. This done, the jury withdraw into an adjoining room, where they must remain without eating and drinking, and without fire, till they have agreed unanimously among themselves, unless the court give a permission to the contrary. Their declaration or verdict (veredictum) must (unless they choose to give a special verdict) pronounce expressly, either that the prisoner is guilty, or that he is not guilty, of the fact laid to his charge. Lastly, the fundamental maxim of this mode of proceeding is, that the jury must be unanimous.

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And as the main object of the institution of the trial by jury is to: guard accused persons against all decisions whatsoever from men ing vested with any permanent official authority, it is not only a settled principle that the opinion which the judge delivers has no weight but such as the jury choose to give it; but their verdict must besides comprehend the whole matter in trial, and decide as well upon the fact, as upon the point of law that may arise out of it: in other words, they must pronounce both on the commission of a certain fact, and on the reason which makes such fact to be contrary to law.

If the verdict pronounces not guilty, the prisoner is set at liberty, and cannot, on any pretence, be tried again for the same offence. IỀ the verdict declares him guilty, then, and not till then, the judge, enters upon his function as a judge, and pronounces the punishment which the law appoints. But, even in this case, he is not to judge according to his own discretion only; he must strictly adhere to the letter of the law; no constructive extension can be admitted; and, however criminal a fact might in itself be, it would pass unpunished if it were found not to be positively comprehended in some one of the cases provided for by the law. The evil that may arise from the impunity of a crime, that is, an evil which a new law may instantly stop, has not by the English laws been considered as of magnitude sufficient, to be put in comparison with the danger of breaking through, a barrier on which so materially depends the safety of the individual. For the farther prevention of abuses, it is an invariable usage that

the trial be public. The prisoner neither makes his appearance, nor pleads, but in places where every-body may have free entrance; and the witnesses when they give their evidence, the judge when he deli, vers his opinion, the jury when they give their verdict, are all under the public eye. Lastly, the judge cannot change either the place, or the kind of punishment ordered by the law; and a sheriff who should take away the life of a man in a manner different from that which the law prescribes, would be prosecuted as guilty of murder.

In a word, the constitution of England, being a free constitution, demanded from that circumstance alone (as I should already have but too often repeated, if so fundamental a truth could be too often urged) extraordinary precautions to guard against the dangers which unavoidably attend the power of inflicting punishments; and it is par ticularly when considered in this light, that the trial by jury proves an admirable institution.

MEMOIR OF CAPT. COOK, THE FAMOUS CIRCUMNAVIGATOR.

CAPTAIN JAMES Cook, the account of whose voyages forms one of the most interesting books in the language, and is read with equal ávi→→ dity by those whose warm imaginations delight in adventurous undertakings and romantic occurrences, and the more calm investigator of the various modes in which the human mind developes itself, was an native of Marton in Cleveland, a village about four miles from Great Ayton in the county of York, where he was baptized, as appears fromiz the parish register, November 3, 1728. His father was a day labourer, a in very humble circumstances; and the future Navigator was employed, till the age of thirteen, in such rural avocations as were suited to his years; at which period he was sent to school, where he manifested a strong intellect, and a peculiar fondness for figures. So little however were the anticipations of his friends in accordance with his future ce lebrity, that at seventeen years of age he was bound apprentice to a grover and haberdasher at Snaith, a small fishing town about ten miles from Whitby. The situation soon counteracted the restraints of his employment; for, though he was a faithful servant, the constant view of the bea, with the passing and re-passing of ships, unfolded a new train of ideas in his mind, and he gradually acquired such a strong at tachment to nautical subjects, that his master was induced to relinquish his services, in order that he might enter upon the more congenial employments of a sailor's life. In July, 1746, he was bound appren tice to a Mr. Walker at Whitby, and was engaged for three years in navigating between Newcastle and London, in vessels of different burthens, in the coal trade. It may easily be imagined that he would. soon become a good seaman; and he was so assiduous in the dischargė of his duty, that his master sent for him from London to assist in rigging a new vessel, knowing that he would be rejoiced at the oppor tunity of increasing his practical knowledge of every part of his

July:] Memoir of Captain Cook, the famous Circumnavigator. 331

business. His term of years with Mr. Walker being expired, he entered himself on board the Maria of Whitby, under the command of Captain Gaskin, and served for one year in the Baltic trade, and was variously employed till February, 1752; when his first masterį Mr. Walker, made him mate of one of his coal vessels called The Friendship, and three years afterwards offered to give him the com mand; but Cook was more ambitious to perfect himself in his art by entering into a different branch of service, than desirous of emolument, and he consequently declined the promotion, and entered on board a frigate of 28 or 30 guns, "having a mind to try his fortuné that way," as he expressed himself. A recommendatory letter prov cured him a situation above that of a common seaman, and his own merit more than confirmed the good opinion which the writer had expressed of his character and abilities. However, though he was at the attack on Louisburgh in 1758, we are not able to learn what station he then filled; but two years afterwards he was appointed lieutenant, which afforded him an opportunity of displaying his superior attainments; eminently qualifying him to direct those various enterprizes which laid the foundation of his future glory. Sir William Burnaby selected him, when off the Jamaica station, to carry despatches to the Governor of Jucatan, relative to the logwood-cutters in the Bay of Honduras; a service which he executed to the entire satis faction of his admiral, and of which he published an interesting account, displaying an acuteness of observation and soundness of judg ment beyond the general range of nautical authorship. To a perfect knowledge of all the duties belonging to a sea life, Cook added con siderable acquisitions in astronomical science, which eminently quali fied him for the appointment to the command of the Endeavour which had been fitted out at the suggestion of the Royal Society, and ordered to proceed into the South Seas, for the purpose of observing the transit of the planet Venus over the Sun's disk. He sailed down? the river with a captain's commission, accompanied by Mr. Green, to whom the task of observing the transit was confided, and the late Sir Jodol seph Banks, whose fondness for botanical pursuits induced him to join the expedition. On the 13th of April following, having called at Rio Janeiro in the way, they reached Otaheite, where the chief object of their voyage was to be accomplished, and occupied themselves till the 13th of July in visiting various parts of the island, collecting facts, and acquiring information for the enlargement of general science. Having this completed the immediate business before them, Captain? Cook, prompted by a laudable spirit of discovery, went in search of several islands which were supposed to o exist in the great Southern Ocean, but had never been visited by European navigators. He found-a the reward of his enterprize in the realization of his expectations;d and when the untutored savages of the new world shall in their distantz posterity be ennobled by the arts of civilization, and blessed with the to light of revealed religion, the name of Captain Cook will be regarded with sentiments of grateful veneration, and his memory cherished as