The Waverley novels, by Sir Walter Scott, complete in 12 vol., printed from the latest English ed., embracing the author's last corrections, prefaces & notes.

448 ~ WAVERLEY NOVELS.
But it was not required of him, by the law, that he should bring precise
proof of the murder, or of the prisoner's accession to it. It was the very
purpose of the statute to substitute a certain chain of presumptive evidence
in place of a probation, which, in such cases, it was peculiarly difficult to
obtain. The jury might peruse the statute itself, and they had also the
libel and interlocutor of relevancy to direct them in point of law. He put
it to the conscience of the jury, that under both he was entitled to a verdict
of Guilty.
The charge of Fairbrother was much cramped by his having failed in the
proof which he expected to lead. But he-fought his losing cause with courage
and constancy. He ventured to arraign the severity of the statute under
which the young woman was tried. " In all other cases," he said, " the first
thing required of the criminal prosecutor was, to prove unequivocally that
the crime libelled had actually been committed, which lawyers called proving
the corpus delicti. But this statute, made doubtless with the best intentions,
and under the impulse of a just horror for the unnatural crime of infanticide,
ran the risk of itself occasioning the worst of murders, the death of an innocent person, to atone for a supposed crime which may never have been committed by any one. He was so far from acknowledging the alleged probability of the child's violent death, that he could not even allow that there was
evidence of its having ever lived."
The King's Counsel pointed to the woman's declaration; to which the
counsel replied-" A production concocted in a moment of terror and agony,
and which approached to insanity," he said, " his learned brother well knew
was no sound evidence against the party who emitted it. It was true, that
a judicial confession, in presence of the Justices themselves, was the strongest of all proof, in so much that it is said in law, that' in confitenterm nullce
sunt partes judicis.' But this was true of judicial confession only, by which
law meant that which is made in presence of the justices, and the sworn
inquest. Of extrajudicial confession, all authorities held with the illustrious
Farinaceus, and Matheus,' confessio extrajudicialis in se nulla est; et quod
nullumr est, non potest adminiculari.' It was totally inept, and void of all
strength and effect from the beginning; incapable, therefore, of being bolstered up or supported, or, according to the law-phrase, adminiculated, by
other presumptive circumstances. In the present case, therefore, letting the
extrajudicial confession go, as it ought to go, for nothing," he contended,
"the prosecutor had not made out the second quality of the statute, that a
live child had been born; and that, at least, ought to be established before
presumptions were received that it had been murdered. If any of the assize,"
he said, "should be of opinion that this was dealing rather narrowly with
the statute, they ought to consider that it was in its nature highly penal,
and therefore entitled to no favourable construction."
He concluded a learned speech, with an eloquent peroration on the scene
they had just witnessed, during which Saddletree fell fast asleep.
It was now the presiding Judge's turn to address the jury. He did so
briefly and distinctly.
"It was for the jury," he said, "to consider whether the prosecutor had
made out his plea. For himself, he sincerely grieved to say, that a shadow
of doubt remained not upon his mind concerning the verdict which the inquest had to bring in. He would not follow the prisoner's counsel through
the impeachment which he had brought against the statute of King William
and Queen Mary. Ile and the jury were sworn to judge according to the
laws as they stood, not to criticise, or to evade, or even to justify them. -Ia
no civil case would a counsel have been permitted to plead his client's case
in the teeth of the law; but in the hard situation in which counsel were
often placed in the Criminal Court, as well as out of favour to all presumptions of innocence, he had not inclined to interrupt the learned gentleman,
or narrow his plea. The present law, as it now stood, had been instituted