The next authority shall be from another judge of equal character, 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," and the third "felonious." Felonious homicide is subdivided into two branches; the first is murder, which is killing with malice aforethought; the second is manslaughter, which is killing a man on a sudden provocation. Here, gentlemen, are four sorts of homicide; and you are to consider whether all the evidence amounts to the first, second, third or fourth of these heads. The fact was the slaying five unhappy persons that night. You are to consider whether it was justifiable, excusable, or felonious; and if felonious, whether it was murder or manslaughter. One of these four it must be. You need not divide your attention to any more particulars. I shall, however, before I come to the evidence, show you several authorities which will assist you and me in contemplating the evidence before us.