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WILLIAM WEMUS AND SEVEN OTHERS. 473

tion. Quod dubitas ne feceris; where you are doubtful
never act; that is, if you doubt of the prisoner’s guilt, never
declare him guilty; this ia always the rule, especially in
eases of life. Another rule from the same author is, that in
some cases presumptive evidence goes so far as to prove 4
person guilty, though there is no express proof of the fact
to have been committed by him; but then it must be very
warily pressed, for it is better five guilty persons should
eacape unpunished, than that one innocent person should die,

The next authority shall be from another judge, of equal
character, considering the age wherein he lived; that is
Chancellor Fortescue, writing in praise of the laws of Eng-
land. This is a very ancient writer on the English law. His
words are: ‘Indeed, one would rather, much rather, that
twenty guilty persons escape the punishment of death, than
one innocent person be condemned, and suffer capitally.””
Lord Chief Justice Hale says, it is better that five guilty
persons eseape, than one innocent person suffer. Lord Chan-
eellor Fortescue, you see, carries the matter farther, and
says, indeed one had rather, much rather, that twenty guilty
persons should escape, than one innocent person suffer capi-
tally. Indeed, this role 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:
Sativa esse nocentem absolvi quam insentem damnari. This
is the temper we ought to set out with, and these the roles we
are to be governed by. And I shall take it for granted, aa 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 thet any one of them should by your verdict be
found guilty, being innocent.

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