UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY DISSERTATION, SHEWING THAT THE HOUSE OF LORDS, IN CASES OF JUDICATURE, AllE BOUND BY THE SAME RULES OF EVIDENCE THAT ARE OBSERVED BY ALL OTHER COURTS. The Second Edition. WITH OBSERVATIONS UPON THE SUBJECTS OF LAW WHICH HAVE ARISEN IN THE mil of pafng mttr |9enaitte AT PRESENT PENDING AGAINST THE QUEEN OF ENGLAND. BY EDWARD CHRISTIAN, OF GRAY'S INN, ESQ. /' BARRISTER, PROFESSOR OF THE LAWS OF ENGLAND IN THE UNIVERSITY OF CAMBRIDGE, AND CHIEF JUSTICE OF THE ISLE OF ELY. LONDON : PRINTED FOB. MESSRS. CLARKE, PORTUGAL STREET; MESSRS. R1VJNGTON, ST. PAUL'S CHURCH YARD, AND WATERLOO PJLACE; AV0 HATCHARD, PICCADILLY. 1820. r C4U3A It. WATTS, I'rinter, Crown Court, Temple Bar. xi 5 I V) PREFACE, THE following Dissertation was written more than twenty-eight years ago : and the Author trusts that the Observations he has subjoined upon the subjects of Law connected with the present Bill of Pains and Penalties will be thought equally true, and well-founded, as far as they are applicable to every species of Trial, which can be brought before the High Court of Parliament, even twenty-eight years after the present time. He has that perfect confidence in the justice and wisdom of the Two Houses of Parliament, and also in the sound sterling sense of the People of England, that he cannot entertain a doubt, but, when the reasons for the final conclusion of the present momentous subject (whatever it may be) are fairly and fully communicated to the world, it will be received with the general approbation of the Public. Field Court, Gray's Inn, Nov. \, 1820. A DISSERTATION, &c. &c. IN a Pamphlet, which I published in the course of last winter (viz. in 179' )> containing the result of my inquiries concerning the effect of a dissolution of Parliament upon an unfinished Impeachment, the following observations were introduced*. " Since * The first time I appeared before the Public as a writer upon Law, was in the year 1/Q1 ; when I published a Pamphlet with the title of " An Examination of Precedents and Principles, by which it appears that the Impeachment of Warren Hastings, Esq. is abated by the dissolution of Parliament." I had, at the first, the modesty not to prefix, my name to it ; but finding that the authorities were approved by Lord Thurlow and the leading Lawyers of the day, I was induced to declare myself the author. It was answered by the Hon. Spencer Perceval, then at the Bar. Mr. Pitt, the Prime Minister, adopted Mr. Perceval's side of the question : but how far the Profession adhered to my doctrine, will amply appear from the following paragraphs, which were published with this Treatise in 1792. The important question, whether an impeachment was de- termined by a dissolution of Parliament after having under- gone a discussion for three days in the House of Commons, was decided' in the negative j the numbers being 143 and 30: and B it " Since the commencement of the present Im- peachment, a monstrous doctrine has been urged, which, if established, would arm the House of Lords with a despotic power, and might eventually prove it must ever be considered as a most remarkable occurrence in the Legal history of this country, that in the minority were the votes of his Honour the Master of the Rolls, the Attorney and Solicitor General, six King's Counsel, one Serjeant, and several other Barristers of distinguished eminence. When the same question was agitated in the House of Lords, it was again decided in the same manner ; the numbers being there 66 and 18; and the Loid Chancellor, and the Lord Chief Justice of the King's Bench, voted in the minority. Previous to any public investigation of this question, the author of this Dissertation was induced to collect and examine the authorities upon the subject, and to publish as his decided opinion, that an impeachment was terminated by a dissolution of Parliament*. From the strenuous support which this side of the question received from the most learned part of the Profession of the Law, and from an attentive consideration of all that great abili- ties and industry have produced on the other, he must ever look back at that opinion with pride and satisfaction. But for the conclusion which we Professional men were obliged to draw from an unprejudiced examination of the subject, we have * Vide an Examination of Precedents and Principles, by Ed. Christian. 2d edition. At that time the Master of the Rolls was Sir Richard Pepper Arden; the Attorney and Solicitor General, Sir Archibald Macdonald and Sir John Scott ; the Chancellor, Lord Thurlow ; Lord Chief Justice of the King's Bench, Lord Kenyon. prove fatal to our liberty and constitution ; which is, that they are not bound, like inferior courts, by the rigid and inflexible rules of evidence, but may admit, at their discretion, any species of informa- tion which they may think necessary for the inves- tigation of truth. " But I trust that the Lords will always have wisdom and virtue to reject such pernicious propo- sitions, and will remember, that, in their character of judges, it is their province jus dicere, and not jus dare"\. " The rules of evidence, likes the rules of mo- rality, are presumed to be founded, in the best sense possible, have been treated with a degree of obloquy unparalleled in the history of England. We have even been charged with waging war against the liberties and constitution of the coun- try. We may have been mistaken ; but the principle, which directed us to that conclusion, is fixed, I trust, upon too solid a foundation in our minds, ever to be shaken by the civium ardor prava jubentium. \ "This may be thought to be expressed with an unbe- coming vehemence. It is a doctrine which I have frequently been obliged to reprobate among the circle of my friends j and I introduce it here, to enforca that universal principle, that the spirit and substance of English liberty consist in the strict ad- herence to rules and the letter of the Law ; and the more we introduce of arbitrary discretion, the more we shall approximate to the dstestable maxims of the Eastern Governments." B 2 4 possible, in reason arid wisdom matured and con- firmed by the experience of ages ; and in all cri- minal proceedings, both in the highest and lowest courts, whether at the Quarter Sessions, or in the High Court of Parliament, and in the Court of the Lord High Steward, they are, and ought to be, pre- cisely the same. " And my Lord Coke solemnly cautions Par- liaments * ( to leave all causes to be measured by the golden and streight metwand of the Law, and not by the uncertain and crooked cord of dis- cretion.' " But though each of the two Houses of Par- liament may do many acts, from which there is no remedy or appeal, yet I trust that they will always have such a conscientious regard to the extent of their privileges and jurisdiction, that they will never adopt the maxim, That they can do no wrong, because they can do wrong with impu- nity." Some time subsequent to the publication of that Pamphlet, I was surprized to hear that a Gentleman of the first celebrity for talents in this country had declared, in the House of Commons, f he could not suffer * last. 41. suffer so erroneous and dangerous a doctrine to pass unnoticed, especially as it came from one whose duty it was to instruct the rising generation in the true principles of the Law and Constitution of England,' and that in a speech of considerable length he had endeavoured to prove and establish that the House of Lords are not bound by the laws of evidence, like other Courts*. I am not insensible of the honour to be thought of sufficient consequence that any error of mine should deserve the animadversions and correction of one, who is regarded as a Pillar of the State, and whose peculiar and anxious care it has long been to provide, Ne quid respublica detrimenti capiat. But the zealous and faithful sentinel, who would shed his best blood in the defence of the citadel, may know little of its internal structure, or how each part contributes to the security and happiness of the whole f- The * See the debates of the House of Commons in the Morning Chronicle of the J5th of February, 17Q1. f 1 he author of the argument against what I had so inci- dentally advanced upon Evidence before the House of Lords, was the Right Honourable Edmund Burke. It is the only error, which I am at present acquainted with, that he ever committed ; and it is one of such a magnitude, that The imputation of ignorance and temerity in denying the truth of a proposition, which I have always heard with astonishment ; and the apprehen- sion to the community, if it is false, when sanc- tioned by a name of such respectability ; have in- duced me to compile this Dissertation, and to ob- trude my opinion once more upon the Public. It is perhaps a melancholy consideration to this country, that men of the greatest abilities generally imagine that it certainly affords me some pride and exultation that it has fallen to my lot to correct it ; for I never met with any reader of this Dissertation, who did not declare that he was convinced by it. The talents displayed by that wonderful man, in resisting the progress of Revolutionary madness and wickedness, and in pre- dicting their fatal consequences, had the extraordinary semblance of divination. In a publication I am now printing upon the Rights and Liberties of Englishmen, after making use of a splendid quotation from his works, I have thought it my duty to subjoin the following note : " I should most earnestly recommend to every student, who is ambitious of obtaining distinction by making himself useful to his country, to peruse attentively the works of the Right Hon. Edmund Burke, and the works which contributed to his cele- brity. I have been assured by his most confidential friends, that the Scriptures lay constantly upon his table, and that he declared that he read all Cicero's works over every year. From such a course of studies we may expect all that can adorn hu- man nature, and can support and improve, for the liberty and happiness of the subjects, every human government. imagine that they can comprehend the most im- portant of all sciences by intuition, and that they possess more refined and exalted ideas of law and justice than those who are daily concerned in the administration of them ; for it has been a common custom of late to ridicule the authority of our Pro- fession, and to pronounce that whatever we presume to suggest is nothing but special pleading and Old- Bailey practice*. But those who are firm in their principles, and steady * Far be it from me to treat such important departments of the Law of England with disrespect. When forms are essen- tial to the administration of justice, the distinction between form and substance is idle and superfluous. Forms are the scales, without which justice could not equally be distributed: if these were disregarded, uncertainty and confusion would be inevitable. But when forms cease to answer the ends pro- posed, they ought to be altered by Parliament : our judges cannot legislate. With regard to the Old Bailey, though I have never had occasion to attend there professionally, yet I can declare that I have never heard that any thing was attempted by the Gentle- men of the Profession who practise there, which the severest of the Judges would decline, if he were at the bar, and the case required it. And as a learned Recorder and his Majesty's Judges preside upon the bench, and the prisoners are tried by respectable juries from the city of London according to the Law of England, one may fairly conclude that justice is ad- ministered there with as much purity as in any Court under heaven. steady to their purpose, will never sacrifice the liberty of their country to the popularity of the day, or cut the Law of England, like a birth-day suit, to the fashion of the times. We must bear patiently to be taunted with our inferiority in every debate, in which from our pro- fession it is expected we should excel. We have not the choice which Dr. Johnson, in his younger years, was eager to adopt : " When I was a boy," says he, " I used always to chuse the wrong side of a debate ; because most ingenious things, that is to say, most new things, could be said upon it." An Orator, who is not confined by the rules and authorities of Law, can find a thousand entertaining arguments to support what he has advanced ; and by appealing to the passions and good sense of his audience, he is sure to conciliate the favour and gain the applause of the vulgar and undiscerning. But the Lawyer must rely entirely upon his case and his authority ; which though it sometimes may be absurd and perquam durum, yet will admit of one argument sufficiently convincing with men of sense, that it is the lex scrip ta, or the law of the land. Of late we have forgotten those venerable records, which my Lord Coke says it cheers one to think 9 think of, and which are the noble declarations of the rights of Englishmen. But let us ever remember, that in the first of our written laws we find, Nullus liber homo capialur, vel imprisonetur, out disseisiatur de libero tenemento suo, vel likerta- tii'us, vel liberis consueludinibus suis, out utlagetur, aut exulel aut aliquo modo destruatur, nee super eum iL'imus, nee super eum mittemus, nisi per LEGALE JUDICIUM PARIUM SUORUM, VEL PER LEGEMT TERR.E. Magna Charta. Who that has the spirit of an Englishman can read this without involuntarily pressing his hand upon his heart, and imprecating the vengeance of Heaven upon the violators of it. Notwithstanding the coarseness of the language, how poor and feeble is the verbiage of the modern declarations of Rights, compared with this first Great Charter of the liberties of Englishmen. But it has been dis- covered, that our ancestors have been guilty of a gross error ; and what they thought they had trans- mitted to us as a treasure, is in fact an incumbrance and a nuisance. For how can the Lex Terrce be consistent with reason, justice, or liberty, which would put an end to a trial that had continued three years, or which would confine the prose- cution 10 cution of that trial to the narrow rules of evidence observed in the inferior courts. Those who are unwilling to admit that the House of Lords upon the present occasion should be tied down to laws and rules, seem to have an illustrious instance for their argument, " I beseech you Wrest once the laws to your authority ! To do a great right, do a little wrong." But Shakspeare, that great master of nature (and the best Governments are most conformable to nature*, or to the particular circumstances under which men are placed by nature) will always be found to make his best and wisest characters ex- press the truest and justest sentiments of law, liberty, and government. He firmly and boldly answers, * It is not my intention to make any insinuation in favour of that contemptible expression ' The Rights of Man,' which, in my humble opinion, is disgraceful to the theory and philosophy of an enlightened people. It leaves a convenient ambiguity to sedition, to interpret it either the rights of a savage or a civilized man ; and in one sense at the least it is equally subversive of the best Governments, as the worst. When men flock together, government is as necessary and as natural to the state of man, as raiment and habitations. This note stood thus in the first edition. I have not changed my opinion upon the subject j but the Reader will soon see it largely explained and illustrated in a work I have now in the press. 11 answers, and in the character too of a Lawyer " It must not be : there is no power in Venice Can alter a decree established. "Twill be recorded for a precedent, And many an error by the same example Will rush into the State : it cannot be.'' One of the great sources of liberty is the cer- tainty of the Law ; in which the subject can repose with confidence and security, as he foresees the certain consequences of all his actions. It is the peculiar characteristic of the English Government to abhor discretion ; which is equally slavery, whether it be pronounced by one, or the majority of 70U. A power to dispense with law is alike dangerous and detestable, whether it be vested in the King, or any other part of the Go- vernment less than the supreme power of the State collected in the King, Lords, and Commons. No sentiment has yet been uttered in or before the National Assembly of France more worthy of a great and a free people than this, viz. Let the track of the Law be pursued, though it should lead over burning ploughshares*. This * A declaration made before the National Assembly by the citizen soldiers of Sainte Opportune, Oct. 7, l/Ql. Since that time to the present year 1820, this is the only sentence which I have seen worth importing from France. This noble maxim I should wish to have written, in conspicuous characters, in every court and place in the kingdom where legal judgments and resolu- tions are to be pronounced. We are frequently entertained by eloquent de- clamations upon liberty and substantial justice ; but the enthusiasm of the orator is apt to hurry him beyond the bounds of utility, and the practicability of human affairs. He can paint the distant laud- scape in all the colouring and beauty of art and nature, but he cannot find his way to those pleas- ing objects before his eyes, of which he gives us so agreeable a representation. I should have imagined, previous to any investi- gation of the question, that, in a country governed by equal laws, no proposition could be more simple and evident than this, viz. that the guilt and inno- cence of every subject must be manifested by the same media of proof, or by the same rules of evidence : and that one might have been war- ranted in closing the controversy, by declaring, that contra negantem principia non est disputandum. When a proposition is so clear that no clearer proposition can be brought in support of it, it is self evident, and incapable of demonstration ; for all human reasoning is a gradual progression from undeniable 13 undeniable truths, or, by certain steps, to what without such aid would be uncertain and obscure. And nothing can be more irksome to an author, than to be obliged to undertake the proof of a doc- trine, of which he hardly conceives a doubt can be entertained ; as he must necessarily apprehend that he will incur the imputation of puerility and frivolity, or insult the understanding of his reader. Before I proceed to the consideration of the law of Evidence, which is perhaps the most beautiful and philosophical branch of English jurisprudence, I think it not foreign to my purpose to give a short explanation of the policy of laws, and the general rules which are essential to the admini- stration of public justice. > It has been asked, Fir bonus est quis ? and it was answered by one unacquainted with the distinction between the private practice of morality and the public administration of justice, Qui consul ta patrum, qui leges juraque servat : and therefore it might justly be replied, Sed videt hunc omnis domus, vicinia tola Introrsura turpera, speciosum pelle decora*. Religion * Hor, Epist. Lib. I. Epist.lfr 14 Religion and morality enjoin us to cherish a spirit of good-will and benevolence, and to dis- charge the reciprocal obligations of society. If their voice were heard, and their precepts in every instance observed, Government would be a super- fluous pageant, and the Law a dead letter. But such is the imperfection of human nature and hu- man establishments, that it is impossible but that offences ivill come ; yet it is the wisdom and object of every Government, but particularly of that con- stitution under which we have the happiness to live, to endeavour to diminish their number in as great a degree as the nature of things will admit. Where perfection is denied, prudence consists in aiming at the best that is practicable ; and true ex- cellence, in attaining it. The prevention of injus- tice, or the maxim, Of two evils chuse the least, is the principle which pervades almost the whole system of English jurisprudence. A man is as much bound by every religious and moral consideration to discharge a debt or com- pensate an injury after six years, as he was the mo- ment after he had contracted the one, or had been guilty of the other ; but the Law permits him to do an act of great injustice by pleading a limitation of time in bar to the demand for satisfaction. Those who made this law had found, by experience, that, for want of such a defence, much dishonesty was was practised in claiming and recovering debts which either had been discharged, or which had never existed : and though such a plea, by a person who is conscious he has never satisfied a fair and righteous demand, is as great an act of villainy, yet the Legislature of this country wisely thought, that by the introduction of such a statute* the sum of injustice would be considerably diminished. It was not intended as a weapon of offence, but a shield to protect. Paper, parchment, and sealing-wax can give no efficacy to the moral obligation of a promise or contract ; but when verbal engagements were carried into execu- tion by our courts of justice, it was discovered that much villainy and perjury were committed by swearing to contracts which never had ex- isted, or where the terms of them were quite different from those sworn to : and though he who denies a real contract is not a much better man than he who swears to a false one, yet the Legis- lature thought that less injustice, upon the whole, would be done, if many of the most important contracts in society were not enforced by courts of justice, unless a written instrument was produced as the most certain evidence of their existence j\ The * 21 Jac. I. c. 16. f 29 Car. II. c. 3. An act for prevention of frauds and perjuries. The same principle prevails in a great part of the Common Law. The moralists tells us, thatjides ser- vanda est, or, That every man is bound to keep a promise which has been accepted, or has raised expectation : but it is a maxim both of the Roman Law, and the Common Law of England, Ex nudo pacto non orilur aclio, or, That no simple contract can be enforced in a court of justice which is made without an equivalent ; which is technically called, cons ideration; the law having wisely deemed, that less injury would be done to society if courts of justice took no cognizance of rash and preci- pitate promises : and it afforded a strong presump- tion that all promises were made without due con- sideration or deliberation, when no reciprocal be- nefit accrued to him who had made the promise.* If a gentleman were paying his addresses to a lady where there was no disparity in their circum- stances or impropriety in their union, it could scarce be considered a violation of morality if he should give a bond, note, or promise to any person who could promote his success : but a slight know- ledge of human nature, or an experience of the world, would soon instruct us, that any person, even * Bat where an engagement is entered into with the solemni- ties of a sealed instrument, it precludes the presumption of a want of due consideration, and no equivalent is necessary. This is called, A special contract, or A contract by specialty. 17 even a servant, who has access to a young lady, might make such an impression upon her mind, by bestowing unmerited praise upon one of her ad- mirers, and depreciating the good qualities of another, as that she might easily be induced by such influence to give a preference to the least de- serving, or be inveigled into a miserable marriage with a necessitous adventurer. And therefore all such engagements our law has wisely declared to be absolutely null and void. Lord Thurlow, in his argument upon Resignation Bonds, in the House of Lords, declared to this effect ; " That marriage- brokage bonds were not set aside, because they must be attended with fraud ; for that certainly was not the case in Scott v. Hall, in Shower's Par- liamentary Cases, which was a marriage between parties in every respect suitable to one another; and the bond was not set aside on account of any particular mischief in that case, but professedly because such a practice was full of great incon- venience ; and the policy of law ought to prevent it, because the practice was pram exempli^" The case is the same with regard to bargains to purchase any public office ; for though many of those contracts might be agreeable to strict abstract justice, yet the universal permission of them would be f From a MS. Note. C 18 be more injurious to society than the universal rejection. Lord Loughborough, speaking of one of them, observes, " That this agreement resting on private contract and honour, may perhaps be fit to be executed by the parties, but can be only enforced by considerations which apply to their feelings, and is not the subject of an action. The law encourages no man to be unfaithful to his pro- mises, but legal obligations are from their nature more circumscribed than moral duties*." It were endless to pursue this principle through all the branches of our jurisprudence in which it prevails. This will suffice to exhibit its nature and extent. It is, in truth, though it leads to different conclu- sions, the same principle of convenience and expe- diency, which is the only foundation of all the rules of private justice and abstract morality : Atque ipsa utilitas justi prope mater et aequi.f But * Henry Blackstone's Reports, p. 327. f I have conversed with many pious divines, eminent preachers, and excellent classical and mathematical scholars, who have had the most erroneous notions of the usefulness and expediency of general laws, and of the science of moral and legal justice. The errors they generally fall into, are the application of use- fulness to the individual person, instead of benefit to all man- kind j the application of usefulness of a single action, instead of the usefulness of the rule or law, to which all actions are to be conformable j and the supposition that every individual is to 19 But those rules, which we learn by experience to be essential to the regulation of society, to distin- guish them from the precepts of the moralists, we denominate sound policy, which is nothing more than another name for good government. And here I cannot forbear to mention, that it is the prin- ciple upon which Mahomet has prohibited all gaming, and the use of wine : " They will ask thee concerning wine and games of hazard ; say unto them, They are a great sin, but yet they are of utility to men, but the evil they cause is greater than the benefit they yield*." Though we do not find in the Koran that spirit of benevolence f which characterizes the Scriptures, yet in the legislation of the pretended prophet we frequently perceive the mind of a Hale or a Hardwicke. If to be his own judge, and the legislator of the rules of his own actions : for they might with as much propriety think that every one might be the framer of his own Acts of Parliament. Several of the first scholars of the age have approved of my explanation of this important subject, inserted in Christian's Charges, p. 31(5. * Koran, chap. ii. f It is a striking sentiment of an elegant historian, Mr. Gibbon, "That benevolence is the foundation of justice j since we are forbid to injure those whom we are bound to assist." Vol.V.p.215. This is far better expressed in the Scriptures : Love, or Benevolence, worketh no ill to his neighbour ; therefore love is the fulfilling of the Law. It was unfortunate to the world, C 1 20 If we examine the laws of evidence, we shall soon discover that they are established upon this grand and fundamental principle of sound policy ; or that they are intended to be such as, (to use an expression of the mathematicians,) that the sum of justice may be a maximum, or rather the sum of injustice a minimum. They are fixed at that deli- cate point, which is best calculated for the convic- tion of guilt, and the protection of innocence. Two learned and celebrated foreigners, Montes- quieu and Beccaria, have censured our laws ; be- cause in an accusation of every crime, except treason and perjury, the prisoner may be found guilty upon the testimony of one witness. l The witness who affirms, and the prisoner who denies,' say they, leave the proof in equilibrio ; ' and it is ne- cessary to have another witness, to make the scale preponderate*.' I cannot world, and to his own reputation, that that historian should have been a disbeliever in the divine authority of a work which I have employed my feeble pen to prove is the voice of Infinite Wisdom, and is itself an everlasting miracle. See Christian's Charges, p. 333. * Les loix qui font perir un homme sur la deposition d'un seul temoin, sont fatales a la liberte. La raison en exige deux, parcequ'un temoin, qui affirme, et un accuse> qni nie, font un partage, et il faut un tiers pour le vuider. Mont. V Esprit des Loix, liv. xii. ch. 3. Piu 21 I cannot forbear to pronounce, that this is an idle trifling conceit, and unworthy of those who are ambitious of the title of Philosophers. The Law of England is established upon more solid grounds. Melancholy and deplorable is the instance, when an innocent man falls a sacrifice to the laws ; but long experience has shewn the wis- dom of the rule, and has proved that it is founded upon the surest basis, the salus populi, or the safety of society. The maxim, that it is better that a certain de- gree of guilt should escape, than that a proportion of innocence should suffer, has its limit. Even the cautious Lord Chief Justice Hale fixes it only at five to one ; " for it is better/' says he, " five guilty persons should escape unpunished, than one innocent person should die *." But Piu d'un testimonio e necessario, perche fin tanto che un asserisce, ed altro nega, niente v'e di certo, e prevale il diritto che ciascuno ha d'essere creduto innocente. Bee. These trifles please by their epigrammatic quaintness, and the neatness of the language in which they are expressed. If they deserved an answer, one might observe the balance is fallacious ; for between him who has all to gain and nothing to lose, and him who has nothing to gain but all to lose, both here and hereafter, the odds are wonderful indeed !^ * P. C. vol. II. ch, 38. 22 But in the barbarous times of our history, those whose opposition had excited the displeasure, or whose possessions tempted the rapacity of the Crown, were generally murdered by the sword of justice ; as it was not difficult to find one perjured villain who would swear to the guilt of an innocent man. To remedy, in some degree, this enormous grievance, a law was enacted in the benign reign of Edward the Sixth*, which provided that no person should be convicted of treason but upon the evidence of two lawful witnesses : the Legislature at that time thinking that less injustice would be the consequence, if every traitor should escape, who might have been convicted by one fair witness, than if every innocent subject should be exposed to the perjury of one assassin. Having thus premised that the protection of innocence is not less the object of the laws of evidence than the punishment of guilt, I shall now proceed to the consideration of that which is the immediate scope of this Dissertation ; viz. to prove that these laws are invariably the same in all judicatures. And in the discussion of this question, I shall endeavour to produce such observations, arguments, and authorities, as will be as applicable to all future impeachments, as the present ; except so * 5 & 6 Ed. VI. c. ii. 23 so far as I shall be obliged to take notice of argu- ments on the other side, drawn from the peculiar circumstances of the present case. Indeed, I have rarely had an opportunity of attending the trial, and I have not perused any printed account of it : therefore, if any proposition, which I may have occasion to advance, should seem to bear a parti- cular reference to what has passed in the present impeachment, it is imputable to accident, and not to design f. All the reasons and authorities which I am about to produce, equally affect the defendant and the prosecutors. The partiality shewn to the former by the Civil Law is unknown to the Law of England. In the Civil Law, there were various distinctions in favour of the defendant. Matthaeus, a learned Professor f No expression whatever is meant to be applied to the facts, or to extenuate or aggravate the circumstances of the present accusation. If I were intentionally to use any such expression, I should think myself guilty of a libel upon the public justice of the nation j but if any abstract proposition of law is advanced by the defendant, his Counsel, the honourable Managers of the House of Commons, the noble Lord who pre- sides at the trial, or by the House of Lords unanimously, I conceive that I and every subject in this country have a right to examine it, and animadvert upon it with decency ; and the only penalty we could incur, might be the imputation of pre- sumption and absurdity. Professor of the Civil Law in the University of Utrecht, tells us, Inter crimen et innocentiam tres apud interpretes differentias reperio ; Prima, quod accusator criminis probandi causa testes non possit producers ad perpetuam ret memoriam, reus possit probandte innocentitf gratia. Secunda, quod crimen uno teste probari non possit, innocentia possit*. Tertia, quod crimen non probetur nisi per testes ex- ceptione majores, innocentia etiam per testes minus idoneos, imd per quamlibet semiplenam probationem. Postremd, inter accusatorem et reum hoc quoque agnoscunt discrimen quod accusatori causa cognitd abolitio concedatur, et venia omittendi accusationem. Reo autem defensionibus suis renunciare non liceat, nee volenti perire concedatur. Matthseus de Cri- minibus, Tit. xv. c. 7. And Farinacius, in his Tractatus de Testibus, states, that Regula est quod testibus ad favorem rei deponentibus magis credatur quam deponentibus ad favorem actoris, etiam quod dicti testes rei sint minus idonei. Quaest. LXV. 5 Reg. But these distinctions have never been intro- duced into the Law of England ; for, far from shewing any favour to the defendant in the exami- nation of witnesses, we can scarce hear without horror, * This is true in our Law, in cases of treason and perjury. horror, that the ancient law of this country did not permit him, when his life was in danger, to produce any witnesses whatever. And it was one good trait in the character of the sanguinary Queen Mary, that she first granted the indulgence to prisoners to call witnesses in their favour : but though by her own authority she directed the judges to receive their testimony, she could not empower them to administer an oath to the pri- soner's witnesses ; and as they were not sworn nor subject to the penalties of perjury, little credit would be given to their assertions : and it was not till the first year of Queen Anne that it was enacted, that, in cases of treason and felony, the witnesses for the prisoner should be sworn and examined in the same manner as the witnesses for the Crown*. But still, if an innocent man cannot prove his innocence by the strict rules of evidence, it is a misfortune which he must bear with resigna- tion, and he can only hope for relief from the cle- mency of his Sovereign. The Law of England, like the law of nature, acts by general, not by partial rules. It will not work a miracle, either for the protection'of innocence, or extermination of guilt : " When * 1 Ann. stat. ii. c. p. 26 " When the loose mountain trembles from on high, Shall gravitation cease, if you go by 5 Or some old temple, nodding to its fall, For Chartres' head reserve the hanging wall." POPE. And if there is a general law in this country, which can be supported by clear authority, that the House of Lords are, not bound in cases of judi- cature by those rules of evidence which are adhered to in the other Courts, there is an end of the ques- tion ; and reasons and abstract arguments to the contrary would be unavailing and superfluous. But I declare, that, in the extent of my reading, I have never met with the least suggestion to that effect. In the argument which I alluded to at the be- ginning of this Dissertation, I understand the fol- lowing authority was cited from the Rolls of Par- liament : En ycest parlement, toutz les seigneurs si bien espiritels come temporels alors presenlz clamerent come lour Libertee et Franchise, que les grosses ma- tires moevez en cest parlement, et a movers en autres parlementz en temps a venir, tochantz pieres de la terre, serroient demesnez, ajuggez, et discus par le cours de parlement, et nemye par la Loy Civile, ne par la commune ley de la terre, usez en autres plus las courtes du royalme : quell daym, liberte, et ' franchise 27 franchise le Roy lour benignement alloua et ottroia en plein parlement. 11 Ric. II. n. 7 It is difficult to say what was the intent of this resolution of the House of Lords, confirmed by the assent of the King ; but from the complexion of the times, it is probable it was to veil some pro- ceeding which they were afraid would not bear examination. To be convinced that these were times of great violence, we need not travel beyond the records of Parliament ; for in the twenty-first year of the same reign of Richard the Second, all the proceedings of the Parliament held in the eleventh year were declared null and void ; but the transactions of the twenty-first were, in the first of Henry IV., rescinded and annulled, and those of the eleventh were again revived and re-established. Allowing it then, as we must, to be a Par- liamentary authority, let us consider its effect and import. It must be granted, that it signifies that the course or practice of Parliament may be dif- ferent from the common law as administered in the inferior courts. But still it can only amount to a confirmation of a different practice, where from other evidence and authority it appears that a different practice prevails. We must therefore inquire in what instances the course of Parliament and the course of other courts vary. And it is certainly certainly established by the cases of Lord Wintoun and Dr. Sacheverel, that the charge or crime need not be stated in an impeachment with the same degree of technical accuracy, or attention to the rules of special pleading, which are required by the law in all indictments. In Dr. Sacheverel's case, it was determined, that by the law and usage of Parliament, in prosecutions by impeachment for high crimes and misde- meanours, by writing or speaking, the particular words supposed to be criminal are not necessary to be expressly specified in such impeachment : though all the Judges were of opinion they must be expressly stated in an indictment, and in an information*. In Lord Wintoun's impeachment, the Lords de- cided it was riot necessary that the treasonable acts should be stated to be done on a certain day, which cannot be dispensed with in an indictment ; but they held, that stating them to be done in or about the months of September, October, and No- vember, was sufficient in an impeachmentf. These authorities have been mentioned, in order to infer that the laws of evidence are not obligatory upon * Har. St. Tr. vol. V. p. 828. f Ib. vol. VI. p. 5O. upon the House of Lords ; but with all deference, in my opinion, they have a tendency to prove directly the reverse. The principal object of the forms of special pleading, or of stating the charge with technical accuracy, was, and is still, to inform the court and the parties what was intended to be proved, that neither side might travel out of the record, and sur- prize the other with evidence which he did not come prepared to resist. If then this is founded in reason, and there could be any variation in the laws of evidence, the prin- ciples of justice and the spirit of our law would require, that in proportion to the laxity of pleading in the statement of the crime, there ought to be a greater strictness and scrupulosity in the admission of the evidence to support it. It is remarkable, that in Lord Wintoun's case, Lord Cowper, who was High Steward upon the occasion, addressed Lord Wintoun thus : " Your Lordship is the first that, on an impeachment for high treason, will have had the benefit of a good law, made in the first year of the late Queen, (since the Revolution,) whereby in all trials for high treason, as well as other capital offences mentioned in the Act, the witnesses produced on the part of the prisoner are to be examined on their oaths. So that your witnesses 30 witnesses will become entitled, in respect of the obligation under which they give their testimony, to the same degree of credit as the witnesses produced against you will be." This address of my Lord Cowper clearly proves that the House of Lords, previous to this time, in cases of judicature, fol- lowed the practice of the other courts, in not per- mitting the prisoners to be sworn. The difference between the forms of Parliament and the general law of the land, has been well de- scribed by Lord Chief Justice Vaughan ; for it is said, when he was a member of the House of Commons, he told them, " That they were not bound by the forms of law, but they were tied to the rules of law*." The laws of evidence are not the rules of any particular court ; for when new jurisdictions are established, of which description were once the courts of Nisi Prius and courts of Quarter Sessions, no direction with regard to evidence need be given in the statute creating the new jurisdiction, unless a difference is intended ; for the whole law of evidence will immediately attach upon that new judicature. The rules of evidence are essential to the manifestation of the crime ; and as the crime is denned and limited by the law, so is the evidence, or the demonstration of the * Har. St. Tr. vol. V. p. 66. 31 the crime ; and there is as strong reason that evidence should be the same in all courts, as that the definition of the crime should be the same in all courts. Evidence differs from form, just as the demonstrations in Newton and Euclid differ from the language, print, and materials, in which they are communicated. Those demonstrations are a series of propositions eternally and universally true, whether they are written in Greek, Latin, French, or English, whether upon paper or parchment, in folio or duodecimo ; so the laws of evidence, which are presumed to be the best and essential demon- strations of guilt or innocence, ought to be eter- nally and universally the same, whatever may be the forms by which the administration of justice is regulated. It is true, that in different nations the laws upon evidence will vary as much (or perhaps more) as the laws respecting crimes, or contracts, or any other subject of legislation ; but still each country must suppose that its own system is the most conformable to the standard of reason, or to the result of their experience. In the Civil Law, the Regulte, Ampliaticnes, Limitationes, and Sublimitationes, and the various commentaries upon them, are swelled to dimen- sions which would far exceed those of all the English Statutes at large put together. Among these may be reckoned the voluminous and pon- derous 32 derous treatises of Farinacius de Testibus, Mas- cardus de Probationibus, and Menochius de Pr '>-v||* jjfl jji , '"ri-:";.-'M>"> In the case of the Earl of Somerset, who was tried for murder before the court of the High Steward, Lord Bacon calls evidence the lantern of justice j". 'fV'Jf t;ii((*- The first case that I shall mention, is that of the Earl of Bristol J. On the 6th of February, 1 626, the Earl was accused of high treason before the House of Lords in Parliament, by the King's Attorney General. On the 8th of May following, the Earl petitioned the House to move his Majesty to decline his accusation ; being of that nature, that if it were well founded it could only be supported by the testimony of his Majesty, from conversations which had passed between the King and the Earl. On the next day the Lords proposed the following questions to the Judges, which they were desired to take into their consideration, and to deliver their opinions to the House :- 'cifl 1st. Whether, in case of treason or felony, the King's testimony is to be admitted or not. 2d. Whe- * P. 297. f Harg. St. Tr. vol. I. 351 J Vide Journals of the House of Lords. 39 2d. Whether words spoken to the Prince, who afterwards is King, make any alteration or not. On the 13th of May, the day appointed for the Judges to deliver their opinions, the Lord Chief Justice informed the House, that he had received a message from Mr. Attorney General, viz. " That it was his Majesty's pleasure that we should forbear to give an answer to these general questions ; but that in any particular case or question, which may arise in the course of the cause of the Earl of Bristol, and wherein the Lords desire our opinions, that, upon mature deliberation, we deliver the same according to our consciences. His Majesty assuring himself, that in all things we will deliver ourselves with that justice and evenness between his Majesty and his people, as shall be worthy of our places." But as the trial was not prosecuted before the Par- liament was dissolved, I apprehend that no judicial answer has ever yet been given to these important questions. But the whole of the conduct of the House of Lords, the Attorney General and the Judges, pre- clude all supposition that the House had any dis- cretion with regard to the admissibility of the testi- mony of the King. And I should presume, that, for various reasons, no doubt can be entertained, even if the King alone should should see treason, murder, 40 murder, or any other committed, that neither in the House of Lords, nor in any other court in this kingdom, could he be admitted a witness to support a criminal prosecution*. In the year 1631, the Earl of Castlehaven was tried before the court of the Lord High Steward, as a principal in assisting in a rape upon his own wife. And one question referred to the Judges was, " Whether the wife in this case might be a witness against her husband for the rape. The answer was, She might : for she was the party wronged ; otherwise she might be abused. In like manner, a villain (vassal) might be a witness against his Lord in such casest-" The legality of this answer has been controverted ; but, from its generality, it is evident that it was not intended to be confined to the court of the Lord High Steward!. In * Three reasons may be briefly stated. He would be a witness in his own cause ; he would be interested in the for- feitures and fines ; and he would be exempt from the penalties of perjury. 2 Hale P. C. 282. f Har. St. Tr. vol. I. 38/. J In all cases now, where the crime is a violence done to the person of the other, the husband may be evidence against the wife, and the wife against the husband. This was held by all the Judges, in the case of Jagger, who was convicted at York, upon the evidence of his wife, of an attempt to poison her. Spring Assizes, 1797. 41 In 1699, the Earl of Warwick was tried upon an indictment before the House of Lords, for the murder of Richard Coote, Esq. : he offered, in his defence, a witness who had been convicted of man- slaughter, in killing the deceased Coote, but who had not been burnt in the hand, nor obtained a pardon under the great seal, though \he pardon had actually passed the privy seal. The Lords, far from thinking they had any discretion to admit him, if he was not legally competent, referred his case to the consideration of the Judges ; who were unanimously of opinion that he was an inadmissible witness, upon which he was immediately rejected*. No case can be imagined of greater hardship, or where the letter of the law could be more repug- nant to reason and substantial justice. From the rejection of this evidence, the Earl might have been found guilty of the foul crime of murder. He was convicted of manslaughter ; and if he had had the benefit of this person's testimony, he might perhaps have been honourably acquitted. The dis- tinction was absurd and disgraceful in the extreme ; for one would have supposed, that if he had been branded in the hand, his condition would have been more infamous, and his testimony less worthy of credit : but an Act of Parliament having- declared that no one convicted of felony should be admitted a witness until he had obtained his Clergy and had been * Harg. St. Tr. vol. V. 170. 42 been burnt in the hand, this statute equally operated upon all courts, the highest and the lowest ; and this monstrous absurdity, so shockin & to one's feelings and understanding, could only be extinguished by the authority of the Legislature, from which it had originated. But it continued to be the law of this country from the 1 8th year of Queen Elizabeth to the 1 Qth year of his present Majesty's reign *. This * 18 Eliz. c. 7. ip Geo. III. c. 19. I have expressed myself strongly in the ( text against the dis- tinction ; but yet all Judges and all courts must adopt it, till a change is made by the Legislature. The reason of such incon- gruities can easily be assigned, by tracing the history of the law. By the common law, every conviction and judgment of treason or felony rendered the person attainted incapable of giving evidence in a court of justice. The Clergy claimed an exemption from all punishment by the temporal Judge, and claimed also the same privilege for every person who could read, (qui legit ut clericus,) and for as many murders, manslaughters, robberies, and larcenies, as they should commit. This, by the 4 Hen. VII. c. 13, was, in the case of laymen who could read, confined to the first conviction for felony, and the offender was burnt in the hand. But still he was claimed by the Clergy, and he was tried again by them in an absurd manner ; and if he obtained a purgation, which he seldom failed to do, he was restored to his credit, and could give evidence, and purchase lands. The 18 Eliz. c. 7- alludes to this, and enacts, That no one shall 43 This witness was rejected by the House of Lords, at a time, when, if he had been admitted, he would not have been sworn ; for when Lord Mohun the next day was tried for the same murder, the Lord High shall be delivered as usual to the Ordinary ; but after Clergy allowed, and burning in the hand, he shall be delivered out of prison. But the statute provided he may be imprisoned one year longer: Lord Hale has said "If a man be convict of felony, and prays his Clergy, and is burnt in the hand, he is now a competent witness ; for by the statute of 1 8 Eliz. c. 7> it countervails a purgation and a pardon, and he is thereby enabled afterwards to acquire goods. Hob. 288. Searle and Williams." 2 Hale P. C. 288- It follows then, as a clear legal deduction, that no one con- victed of felony can be a witness in any court, unless he has been burnt in the hand, or has obtained the King's pardon. Except that, by the 4 Geo. I. c. 11. for grand larceny, the Judge, at his discretion, for burning in the hand may substitute transportation for seven years. By the 19 Geo. III. c. 74, for every other Clergyable felony the court may, at their discretion, for burning in the hand sub- stitute a fine, or whipping not more than three times 5 except, a person convicted of manslaughter cannot be whipped. In all these cases the substituted punishment has the same effect as burning in the hand. It follows then, after transportation for grand larceny, or after whipping, or the payment of a fine, for any other felony, or in general after suffering the punishment, the offender may be admitted as a witness, but not before. These are unanswerable legal conclusions, which Justices, Judges, House of Lords, and Lord High Stewards, are equally bound to admit. Petty larceny is a species of felony, and the person convicted of High Steward addressed his first witness thus : ff Though you are not upon your oath, yet you are as much obliged in justice and conscience to speak the exact truth, as if you was upon your oath ; therefore have a care what testimony you give." When this noble Lord had the misfortune to be tried for the murder of William Mountford, a few years before, the Marquis of Carmarthen, the Lord High Steward, thus addressed him : " My Lord, you are a very young man, and therefore it is to be hoped you cannot so early have had your hands in blood ; and the same reason, because you are so Jj'..\; i>t'i7""X' young, of it was rendered infamous or incompetent to give evidence. The punishment^by the common law was whipping, and impri- sonment to any extent, at the discretion of the court. By the 4 Geo. L c. 1 1, the court may either whip or transport for seven years ; but t in this case the convict of petty larceny always remained incompetent j so that a gentleman making a will to devise real property, called, as one of the three credible wit- nesses, a servant who had lived in his house many years with credit, to attest the will. The testator died, and his heir dis- covered that this servant many years before had been convicted at the Quarter Sessions of petty larceny, some trifling theft. In consequence of this, the will was declared void, which in- duced Lord Alvanley to bring in an Act (the 31 Geo. III. c. 35), by which it is enacted that no person shall be incompetent in consequence of being convicted of petty larceny. So it is a common practice, when a prisoner is so convicted, to produce him as a witness against the receiver of the stolen goods. But in that case the receiver can only be indicted for a misdemeanour, and the witness's evidence ought to be corro- borated, as in the case of an accomplice. Note to Second Edition. 45 young, may perhaps make you conceive that you are under some greater disadvantage in making your defence than you would be, if your experience had been longer : but to remove any misappjehen- sion you can have of that kind, it is very proper to put your Lordship in mind, that you have the good fortune to be tried for this fact in full Parliament^ where no evidence will be received but such as must be manifest and plain, beyond all contra-* diction, so that you have nothing to fear here but your own guilt*." At the trials of the Earl of Warwick and Lord Mohun, for the murder of Mr. Coote, Lord Somers presided as Lord High Steward. Though he was the principal author of the Revolution, yet that great lawyer never adopted the modern new-fangled false distinctions between the Law and the Constitu- tion ; but he addressed the Earl of Warwick in the following elegant and emphatic' language. fc Your Lordship is called upon to answer this charge before the whole body of the House of Peers assembled in Parliament. It is a great misfortune to be accused of so heinous an offence ; and it is an addition to that misfortune, to be brought to answer as a criminal before such an assembly, in defence of your estate, your life, and honour : but it ought to be a support to your mind, sufficient to keep * Har. St. Tr. vol. IV. 512. 46 keep you from sinking under the weight of such an accusation, that you are to be tried before so noble, discerning, and equal Judges, that nothing but your own guilt can hurt you : no evidence will be received but what is ivarranted by law ; no weight will be laid upon the evidence, but what is agreeable to justice 7 ." Here that illustrious character nobly discriminates between the admissibility of evidence warranted by law, and that discretion and substan- tial justice which each was bound to exercise and discharge, according to the effect and operation of that evidence upon his conscience. In Lord Macclesfield's impeachment, the Counsel for the noble Earl called a witness to prove what he had heard thirty-five years ago, from a person who was dead. The managers objected to the evidence ; upon which the Earl of Macclesfield, who had lately been Lord Chancellor of Great Britain, observed : " My Lords, what we are giving evidence of, is of a thing transacted thirty-five years ago ; the parties are all dead : he is about to give you an account of what he did, and was said to him at that time by his master in transacting that affair. If that person that said it were now alive, to be examined to it himself before your Lordships, it would not be evidence without examining him ; but if dead, what he said concerning this fact may be given in evidence : it is concerning the party's own own act, and what he told him at the time it was doing. Therefore we hope they will not oppose this evidence, which, in the nature of the thing, is all that possibly can be now given." Lord Trevor rose, and observed, " If there be a difference in opinion between the noble Lord and the managers, they must withdraw : I will tell my opinion, that such an hearsay evidence is no evidence*." Upon which it was no longer persisted in. But in this case, where the noble Earl and his Counsel were making experiments, there is not the least intima- tion that the House of Lords were not bound by the rules of the inferior courts. In the Duchess of Kingston's trial, upon an indictment before the high court of Parliament, two points of evidence were determined, and by several learned Lords were argued upon those principles which are common to every court in the kingdom : one was, that a surgeon who obtains any information, even of the most delicate nature, as of the birth of a child in consequence of his profession, has no privilege, but is bound to disclose it in a court of justice : another was, that a noble Lord, to whom the most confidential communi- cations had been made, could not, from any etiquette of honour, or motives of delicacy, be protected from revealing them, as far as was necessary liar. St. Ti. 644. 48 necessary for the purposes of justice. And when the Counsel shewed a willingness, not to wound the feelings of the noble Lord, and to wave the testi- mony, Lord Radnor declared, " I am afraid your Lordships, by your acquiescence, have admitted a rule of proceeding here, which would not be ad- mitted in any inferior court in the kingdom. I de- sire therefore to ask the noble Lord, whether he knows any matter of fact relative to that marriage." Lord Barrington answered, " My Lords, if I do, I cannot reveal it, nor can I answer the question without betraying private conversation." But after some debate, that noble Lord was obliged to dis- close all the private conversation which he remem- bered upon the subject*. It is related of Xenocrates the Athenian, that so high was his character for honour and veracity among his countrymen, that when he was produced as a witness, the judges would not permit him to be sworn : but this is a compliment which cannot be paid by any English court of justice f. Our maxim is, In judicio non nisijuratis creditur. And though the Constitution reposes such confidence in the * Har. St. Tr. vol. XL f Athenis aiunt, quum quidam apud eos, qui sancte gra- viterque vixisset, jurandi caussa ad aras accederet, (ut mos Graecorum est,) una voce omnes judices ne is juraret recla- masse j quum spectati viri noluerint religione videri potius, quam veritate, fidem esse constrictam. Cic. Oratio pro Ballo. 49 the purity and integrity of the Peers, as to permit them to give their verdict upon their honour, yet in their own House, and in every other court, they must give their testimony upon oath. Lord Barrington was sworn in the Duchess of Kingston's trial, and the Bishop of Oxford in Lord Maccles- field's*. I have * If any Peer should embrace the tenets of the Quakers, it would he very clear, that in no inferior court, in a criminal case, could he be heard upon his honour or affirmation. It has been determined, after much solemn argument, that though the evidence of an Atheist cannot be received, as the religious solemnity of an oath can have no obligation upon his mind, yet the evidence upon oath of men of every religion, who be- lieve in a Supreme Being, or a Governor of the Universe, may be received in an English court of justice, and that the oath may be administered according to the ceremonies of their religion. Upon the authority of this decision, I con- ceive there could be no doubt but the deposition of a Gentoo might be received in the present impeachment. The decision is that of Owychund v. Barker, in \ dlkyns's Reports, 2] j where it appears, that pursuant to an order of the Court of Chancery, of the 4th of December 1739, a commission went to the East Indies ; and on the 12th of February 1/42, the Com- missioners ceitified, that, among other witnesses for the plaintiff, they had examined Ramkissenseat and Ramchurnecoolerage, and several others, subjects of the Great Mogul, being persons who profess the Gentoo religion, and that they were solemnly sworn in the following manner; viz. "The several persons being before us, with a Brahmin or Priest of the Geptoo reli- gion, the oath prescribed to be taken by the witnesses was interpreted to each witness respectively ; after which they did E severally 50 I have now enumerated all the questions upon evidence which I have found discussed in trials before the House of Lords; and ITmve stated them, in order to shew that they have been determined upon those general principles of law which prevail in every other court in the kingdom ; and that in none of those important cases is there any sugges- tion that the Peers possessed a discretionary authority with regard to evidence. In the eighth year of William III. a bill of in- dictment for high treason was found against Sir John Fenwick : but before he was brought to trial, one of the witnesses, upon whose evidence before the Grand Jury the bill was found, disappeared, so that Sir John Fenwick must necessarily have been acquitted in any court of law. But a Bill of Attainder was passed, in which it was enacted, that Sir John Fenwick should be subject to all the pe- nalties of a conviction in a court of justice, and in consequence severally with their hands touch the foot of the Brahmin or Priest of the Gentoo religion, being also before us with another Brahmin or Priest of the same religion ; the oath prescribed to be taken by the witnesses was interpreted to him ; after which Ne.enderam Surmah, being himself a Priest, did touch the hand of the Brahmin, the same being the usual and most solemn form in which oaths are most usually administered to witnesses who profess the Gentoo religion, and the same manner in which oaths arc usually administered to such witnesses in the courts of justice, erected by letters-patent of the late King at Calcutta." 51 consequence of this Act of Parliament he suffered death. In the examination of witnesses before the House of Commons, previous to the passing of the Bill, there was great debate, whether the House was bound by the rules of evidence. The speeches ,of the principal speakers are preserved in the fourth volume of the State Trials : among these is that of Mr. Methuen, who, I have no doubt, is Paul Methuen, Esq., who was afterwards Queen Anne's ambassador to Lisbon, and who concluded an im- portant treaty with Portugal ; he was also high in office in the next reign of George the First. The speech which is assigned him, proves him to be a man of great abilities, and deserving of the cha- racter which is given him in the dedication of the seventh volume of the Spectator. He distinguishes between Bills of Attainder, and cases of judicature in Parliament, by observing, that " 'Tis said you are trying of Sir John Fenwick, that you are Judges, and that you are both Judges and jury, and that you are obliged to proceed according to the same rule, though not the methods of Westminster Hall, secundum al/egata et probata. But the state of the matter, as it ap- pears to me, is, that you are here in your legis- lative power, making a new law for attainting of Sir John Fenwick, and for exempting his particular case, and for trying of it, (if you will use that word, E 2 though 52 though improperly ;) in which case the methods differ from what the law requires in other cases ; for this is never to be a law for any other after- wards. Methinks this being the state of the case, it quite puts us out of the method of trials, and all the laws that are for limiting rules for evidence o at trials in Westminster Hall and other judicatures: for it must be agreed, the same rules of evidence must be observed in other places as well as West- minster .Hall, / mean Impeachments, and it has always been so taken*." Here then is the express authority of a man of learning and talents, and which was not contradicted by any gentleman that followed him. And it would have been of great importance to those who adopted that side of the debate, to have corrected him with regard to im- peachments and cases of judicature ; for if the two Houses of Parliament are not bound by the rules of evidence in judicial proceedings, a multo fortiori argumento, they would not be bound in their legislative characters']". I have * Har. St. Tr. vol. IV. 310. f- In this original Dissertation, the object of the author was only to prove that the House of Lords was bound, in cases of judicature, by the same rules of evidence as in the inferior courts. In the Appendix, I shall endeavour to shew, that when wit- nesses are examined, in either House, to affect the rights and honour of an individual, the same rules of evidence precisely ought to be observed. 53 I have now stated all the authorities which I have met with in the course of this investigation ; and I have never any where discovered the least intimation that the House of Lords could deviate from the rules of evidence observed by other courts, except in an impeachment which perhaps the gene- rality of my readers will be best acquainted with ; I mean the impeachment of Quinbus Flestrin, the Man Mountain, intended to have been tried in the High Court of Parliament of Lilliput. After an impeachment was resolved upon, and articles drawn up against Quinbus Flestrin, for having extinguished the flames in the Empress's apartment in a manner which, by the laws of Lilliput, amounted to high treason ; he was secretly in- formed of it by one of his party in the Cabinet, who added, " That his sacred Majesty and Council, who are your judges, were in their own consciences fully convinced of your guilt, which was a sufficient argument to condemn you to death, without the formal proofs required by the strict letter of the law." Though there can be little doubt but Swift intended this humorous impeachment as a satire upon some of the impeachments which were nu- merous in the reign of Queen Anne, yet I con- ceive that this part of his wit was unprovoked, and that no thought had ever occurred to the managers of those impeachments to dispense with the formal proofs required by the strict letter of the law. But 54 But notwithstanding the two Houses of Par- liament have deviated from the rules of evidence, in passing Acts to deprive the subject of his life and honour, yet it is now the constant and invariable practice of both Houses of Parliament, in every Divorce and Turnpike Bill, to examine witnesses according to the law of evidence. One of the Counsel for the Bishop of Rochester cites a me- morable and noble instance of the Lord Digby, and which clearly proves what evidence he thought ought to be adduced to support an impeachment. I shall repeat the words of the learned gentleman, Mr.Wynne. " Lord Digby had been one of the most violent managers in the impeachment of the Lord Strafford ; and yet, when that proceeding was waved, and a Bill of attainder brought in, he spoke as violently against it. Though he was still of opinion (he said) that that Lord was the same dangerous Minister, and great apostate to the Commonwealth, who must not expect to be pardoned in this world till he was dispatched to another, yet he had rather lose his hand than put it to that dispatch. He put them in the mind of the difference between prosecutors and judges ; and how unbecoming that fervour was in them, now they were judges, which perhaps might be commendable in them as prosecutors. That when he gave his consent to the accusation, he was assured his crimes would have been fully and legally proved ; which if they had, he could have condemned him with 55 with innocency, as he had prosecuted him with earnestness : but as the case then appeared, no man could satisfy his conscience in the doing of it. The Parliament, it is true, had a judicial and legis- lative capacity : the measure of the one ought to be legally just, the other political and prudential : but these two capacities were not to be confounded in judgment ; they were not to piece up (says he) the want of legality by matters of convenience, to the ruin of a man by a law made ex posteriori." I think an argument has been urged, from the peculiar circumstances of the present impeach- ment, which is something of this nature ; viz. that where the crimes have been committed at so great a distance from the place of trial, and when so great an interval of time has elapsed, if you should expect the same strict proofs as in ordinary cases, the greatest criminals might escape with impunity. Protesting, as I ever shall, that the laws of evidence are as unextendible and incom- pressible as adamant ; but granting, for the sake of argument, that they could admit of a variation, I should contend, and I trust with success, that, from the reason assigned, the conclusion ought to be directly the reverse; and that the spirit of both English law and English liberty, under such cir- cumstances, would demand their restriction, rather than their relaxation. For, according to the principles 56 principles of our law, caution and scrupulosity ought to be shewn, in the admission of evidence, in proportion to the difficulty which the defendant has to repel it, if it is fabricated. This is the principle, as I have mentioned before, of all sta- tutes of limitation ; which provide, that after a cer- tain time no evidence whatever shall be admitted to affect the defendant. And the same reason which induced the Legislature to enact, that no subject should be convicted of treason but upon the testimony of two witnesses, induced them also to declare, that no one should be prosecuted for any treason, except for an attempt to assassinate the King, unless he is indicted within three years after the commission of the crime*. Lord Chief Justice Hale strongly urges attention to this principle in the trial of rapes. " It is true," says he, " rape is a most detestable crime, and therefore ought severely and impartially to be pu- nished with death ; but it must be remembered, that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent. tf I shall never forget a trial before myself of a rape in the County of Sussex. " There * 7 mu. in. c. 3. 57 " There had been one of that county convicted and executed for a rape in that county, before some other Judges, about three assizes before, and I suppose very justly : some malicious people seeing how easy it was to make out such an accusation, and how difficult it was for the party accused to clear himself, furnished the two assizes following with many indictments of rapes, wherein the par- ties accused with some difficulty escaped." He then relates a case which happened at the second assizes following, (it is rather too long to give the whole of it in his own words,) " Where an ancient wealthy man, of about sixty-three years old, was indicted for a rape, which was fully sworn against him by a young girl of fourteen years old, and a concurrent testimony of her mother and father and some other relations. The ancient man, when he came to his defence, alleged that it was true the fact was sworn, and it was not possible for him to produce witnesses to the negative ; but the prisoner then convinced the court and jury that he had long laboured under a disorder which rendered him perfectly incapable of committing a crime of that nature." Lord Hale then relates other similar cases ; and observes, " I only men- tion these instances, that we may be the more cau- tious upon trials of offences of this nature, wherein the court and jury may with so much ease be imp 58 imposed upon, without great care and vigilance ; the heinousness of the offence many times trans- porting the judge and jury with so much indigna- tion, that they are over-hastily carried to the con- viction of the person accused thereof, by the con- fident testimony, sometimes of malicious and false witnesses*." What my Lord Chief Justice Hale recommends in these cases, is equally applicable to every other species of accusation, viz. That the care and vigi- lance of the court ought to be greater, according to the ease of fabricating evidence, and the difficulty in repelling itf. But besides this shield which justice, with a parental care, spontaneously presents against the designs of wickedness, perhaps some caution might be necessary to check a natural pro- pensity in the mind of man to magnify whatever we know imperfectly, or where we have no fear of contradiction. This, though perhaps a common- place observation, seems to have been a favourite sentiment of one of the most comprehensive minds of antiquity ; I mean Tacitus. Vt quis ex longinquo revenerat f miracula narralant, vim turbinum, * P. C. vol. I. 636. f- There is one melancholy instance in an impeachment, where a venerable Peer, Lord Stafford, lost his life by the per- jury of Titus Gates and his infernal associates. 59 turbinum, et inauditas volucres, monstra maris, amhi- guas hominum et belluarum formas. An. II. 24. Cuncta, ut ex longinquo, aucta in deterius adfere- bantur. An. II. 82. Juvit credulitatem nox, et promptior inter tene- bras affirmatio. Ib. Gnarus mojora credi de absentibus. Hist. II. 83. Omne ignotum pro magnifico. Vita Agric. 30. These authorities, I trust, will suffice to con- vince us that we ought not to supply by imagination the deficiency of legal evidence ; and that it is not consonant either to justice or sound reason, to ex- tend the laws of evidence, or to be content with a slighter degree of proof, because the scene of action is laid in India. But, to obviate the complaint of the want of the best evidence in trials for crimes committed in India, the Parliament has provided, by an Act passed in the thirteenth of the present King, that the Speaker of the House of Commons, or the Chancellor, may send a Commission to India for the examination of witnesses, and that deposi- tions obtained in consequence shall be good evidence in any Parliamentary inquiry in this country. We 60 We frequently hear it observed, that it is the law of England, that when you cannot obtain the best evidence, you shall receive the next best evidence which the nature of the case will admit. This certainly is the law of England. But it signifies nothing more, than that if you have not the best legal evidence, you shall resort to the next legal evidence. Evidence may be divided into primary and secondary, but the secondary evidence is as accurately defined and limited by the law as the primary ; but you shall never resort to hearsay, to interested witnesses, to copies of copies, &c. &c. because from no circumstances whatever can they ever become legal evidence : if there are excep- tions, they are such as are as much recognised by the law as the general rule ; and where boundaries and limits are established by the law for every case which can possibly occur, it is immaterial what we call the rule, and what the exception. With regard to the present Impeachment, I have heard an argument of this kind advanced, that though our rules of evidence may be very fit and proper to try a mnrder, rape, robbery, or a single action, they are perfectly unavailing and inappli- cable when the whole history of a man's life is put in issue ; and that this is a case far beyond the comprehension of the contracted vulgar minds of lawyers. By thus enveloping the argument in a mystery, 61 mystery, which \ve have no power to penetrate, if it does not give pretensions to a victory, it at least prevents the disgrace of a defeat : it brings to one's mind those heroes in Homer, who, when they are hard pressed, are carried from the field by some guardian Deity, wrapt in a cloud. But as far as I can comprehend the premises of this argument, I should again draw a different conclusion, and should reply upon that obvious principle which I have mentioned before, that the less prepared a defendant can be to repel an attack, the more scrupulous and circumspect ought his judges to be, in their attention to the attempts of the assailant. But without resorting to this observation, which probably will be treated with contempt, as a prin- ciple of special pleading, I should contend, that, with respect to the law of evidence, it is perfectly immaterial whether one act or ten thousand acts are put in issue. The history of a man's life is a continuation of single acts ; and each act must be proved by the same description of evidence, as if upon that act alone depended the acquittal or con- viction of the defendant. Whether it is the immediate criminal act, or an act which affords an inference or presumption of guilt, the proof must be exactly the same. If we are to prove that the prisoner rode a white horse (or any other similar circumstance) the same day on which a robbery was committed by a highwayman mounted on a white 62 white horse, we must prove it precisely by the same description of witnesses and evidence as we must prove the act of robbery itself. So if we ransack the history of a man's life, whatever actions we bring forward, whether criminal in themselves or inferences of criminality, these must all be proved by the same sort of evidence. If we are to prove that he issued a murderous mandate, like King Tarquin, by cutting off the head of a poppy, we must prove that act by precisely the same evidence by which we should have proved that he cut off the head of a man : perhaps it might require some additional facts or circumstances to explain it, or to shew that it was the cause of the criminal effect. What I have advanced so far upon circumstantial evidence is this, viz. That facts, from which guilt is to be inferred, must be established by the same species of evidence as the immediate or principal acts of criminality ; but the inference to be col- lected from those facts must be left, in every court, to the judgment arid consciences of those, whose province it is to pronounce upon the guilt or inno- cence of the party accused. Mr. Baron Mounteney, in summing up the evidence in the trial between James Annesley, Esq. and the Earl of Anglesea, makes this observation : " I remember to have heard it laid down, by one of the greatest men who ever sat in a court of judicature, viz. That circumstances were 63 were in many cases of greater force, and more to be depended upon, than the testimony of living witnesses." " Witnesses, Gentlemen, may either be mistaken themselves, or wickedly intend to deceive others : God knows, we have seen too much of this in the present cause, on both sides. But circumstances, Gentlemen, naturally and necessarily arising out of a given fact, cannot lie*." We hear this observation everywhere echoed ; " Circumstantial evidence is the best ; for circum- stances cannot lie." But if we would give our- selves the trouble to bestow a little consideration upon the subject, I think we shall be convinced that circumstantial evidence is not the best, and that circumstances can lie. There are circum- stances which cannot lie, where the conclusion or inference is necessary and unavoidable ; but where the conclusion or inference is contingent, circum- stances may lie, that is, we may draw an erroneous conclusion from the given facts. The learned Matthseus clearly describes this distinction : Argumentum porro necessarium vel contingens est : necessarium, cujus consequentia necessaria est, veluti coivisse earn quJJ 70 (AZV VOfMfAOV, OUCCtlOV SIVKl' 70 05 avouov, (Btaiov. 2t)v 7u vofty ovv sx&hsve diiv 7ov dtx>oi(r77]v 77/v "(Ltjfpov 7tdtffQaii. That which is conformable * It perhaps may be thus translated : " There is nothing more cruel, more pernicious, nothing that this country is less able to bear. " What can be found in that most miserable word Pro- scription, or in all the severity of the time of Sylla, which will be most extraordinary in the history of cruelty ? " I am of opinion, a punishment inflicted upon Roman Citizens by name without a trial." 101 conformable to law, is justice ; and that which is contrary to law, is force and violence. He there- fore recommended that every Judge should decide according to the law." But it will be asked. Is not this an ex-post-facto law ? That is a law, which is made to punish an action which was innocent at the time it was done, as if it had been a legal crime at that time ; as if a law were made this winter to punish severely every one who had killed a butterfly, or a swallow, in the last summer. Let us consider the nature of the crime with which the Illustrious Defendant is now charged. The celebrated statute, the 25th Ed. III. c. 2, which, for the security of the people of England, declared what actions should be high treason, and that the Judges should adjudge no other action but those specified in that statute to be treason in future, has declared, that " if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir, he shall be guilty of high treason." The statute has not explained what crime these three female subjects shall be guilty of, if they concur 102 concur in the criminal action. But it is a common law principle, more ancient than the statute itself, that he or she, who consents to the act of high treason, is also guilty of high treason. All authors therefore agree, that if the females specified, con- sent to their violation, the wives by adultery, or the eldest daughter by incontinence, they also are guilty of high treason. ;.** 'j J3i';.}g-p;*! But where they are deficient in chastity, if their paramour cannot be tried for high treason, none of the three co-operating with him can be found guilty of high treason. If they consent to a native or to a foreigner in England, they are clearly guilty of treason : but if one of these females should consent to commit adultery with a foreigner out of the kingdom, she is not guilty of treason : for if he were afterwards to come to England, he could not be tried for treason, because he was not at the time under "obedience to the laws of England. This, in the present trial, has so been held by the twelve Judges. If, in England, one of these females, like Poti- phar's wife, should solicit unsuccessfully either a native or foreigner, she would be guilty of a high misdemeanour. And if she were to act with a foreigner abroad in a manner which would amount to 103 to high treason in England, surely no Lawyer will contend that it would not be a subject for an impeachment as a high crime and misdemeanour. The dignity of the Royal Family would be dimi- nished ; the moral sentiments of all virtuous women, by the example, if not impaired, would be greatly shocked ; and the legitimate succession to the Throne might be rendered uncertain, and the peace and tranquillity of the nation endangered. If this is a crime which cannot be tried by an indictment and a jury, it is only upon the general common-law principle that every one in the case of an indictment must be tried in the county in which the crime was committed. But this does not apply to an impeachment. If, then, any one of the Illustrious Personages specified in the statute should be thought to be guilty of an adulterous intercourse with a foreigner abroad, it cannot be disputed but she might be tried in an impeachment for a high crime and misdemeanour ; and her innocence or her guilt must be made manifest to her Judges, the House of Lords, and to all the world, precisely by the same witnesses, and by the same laws of evidence, which have been admitted upon this Bill of Pains and Penalties. A Bill 104 A Bill of Pains and Penalties, conducted as this has been, is far more favourable to such an Illus- trious Defendant so accused, than a trial by impeachment. In an impeachment, each Lord must declare Guilty or Not guilty, upon his honour ; but in such a Bill as the present, each Lord declares, in every stage, Content, or Nori Content ; and several, who are fully convinced of her guilt, may, for various reasons, in every stage, declare Non Content: but he must be a horrid monster of wickedness and iniquity, who declares that he is content that a Bill shall pass to divorce and degrade such an Illustrious Female, when, from the legal evidence, he is fully convinced of her innocence. After an impeachment, the House of Commons do not enter into a fresh investigation of the sub- ject by the examination of the witnesses ; but if they are dissatisfied, by the verdict or declaration, of the guilt of the defendant, or if they wish it should proceed no further, they may refuse to demand judgment, in consequence of which no punishment can be inflicted. See Christians Edition of Blackstone. But in the Bill of Pains and Penalties, all the former witnesses, or other fresh witnesses, may be examined ; and in every stage it may be put an end to, by a majority of that House. But 105 But if ever such a Bill should pass the House of Lords, it is to be hoped and implored that the witnesses will be examined in the same dignified manner, and by the same adherence to the laws of evidence, by which they have lately been examined in the House of Lords*. Another * I was glad to see that Mr. Serjeant Onslow, a Member of the House of Commons, gave notice, that if the Bill of Pains- and Penalties came into that House, he would, before the examination of witnesses, bring in a Bill to enable the House of Commons, upon that and all future occasions, to examine witnesses upon oath. I have long represented and lamented this inability, as the greatest defect and blemish in our excellent Constitution. The books which are printed every year, of evidence given before Committees of the House of Commons, I have perused ; and several of them with much sorrow and disgust, because tney are full of ignorance and the grossest misrepresentation. I am sorry to say, that, at present, a Committee of the House of Commons to examine witnesses upon any part of our Law and Government, has the effect of a proclamation for all manner of persons to come in and abuse and degrade the laws of their country. I know several honourable men of my acquaintance, in high situations, who would not, if they could possibly avoid it, join the witnesses examined by the House of Commons. The Bill ought to provide, that every witness should be examined upon his oath, should be subject to all the penalties of perjury j and if his evidence is ever to be printed, that it should be printed and published immediately, that every honest man might have an opportunity of answering it, where it is untrue and unjust. A witness 106 Another distinction between an Impeachment and a Bill of Pains and Penalties, which perhaps may be thought favourable to the defendant, is, That the King has no power to put an end to an impeachment either by a prorogation or a disso- lution of the Parliament ; but in any stage of the proceedings, either by a prorogation or a disso- lution, he has the Constitutional power of termi- nating a Bill of Pains and Penalties. In the present Bill, I think a demand has been made for a list of witnesses to be produced, and has been refused. Upon that subject, I think every Lawyer will agree that a delivery of a list of wit- nesses is unknown, by the common law, to every species of prosecution in the temporal courts. It A witness has been known to assert one thing before the House of Commons, and to swear directly the contrary before the House of Lords. A witness before the House of Com- mons, for prevarication, may be imprisoned till the end of the Sessions. The reason of this immense defect is easily accounted for : When the House of Commons separated from the House of Lords, in the latter end of the reign of Edward the Third, the House of Lords retained the judicial power, and, as incidental to it, the power of administering an oath. But the Committees under Grenville's Act, in which they examine witnesses upon oath, adhere to rules of evidence, and do justice with the greatest propriety and dignity. 107 It is obvious, that it might be highly inconvenient to give a list of foreign witnesses before they arrived in England ; for however they might be prevailed upon to come by honest and legal means, by assurances of protection and indemnification, it is very clear that they would be prevailed upon by a much less inducement to stay at home: and even if they yielded to dishonest practices, it is probable that they would be free from all animadversion for it in their own country. But it is indisputable, that the law of England, before the time of Queen Arine, compelled a pro- secutor in no case whatever to disclose the names of the witnesses to a defendant, except as far as the prisoner incidentally learnt them by their being sworn before a magistrate or a grand jury ; and even in these cases, a prosecutor is not obliged to call these witnesses, but may call any other wit- nesses to prove his case. But in the case of high treason by the 7th Anne> c. 21, it was enacted, that a list of the wit- nesses should be delivered. I shall conclude this subject by transcribing what that great Judge, and sincere friend to the liberty of the subject, (Sir M. Foster,) has said upon it, 108 it, and which some, perhaps, will think not inap- plicable to the present time. " I will now consider the clauses in the 7th of Queen Anne, which I before hinted at. The 1 1 th section of that Act provideth, ' That when any ' person is indicted for high treason or misprision of ' treason, a list of the witnesses that shall be pro- ' duced at the trial for proving the said indictment, f and of the jury, mentioning the names, profession, ( and place of abode of the said witnesses and e jurors, shall be given at the same time that the f copy of the indictment is delivered to the party f indicted ; and that copies of all indictments for the f offences aforesaid, with such lists, shall be delivered ' ten days before the trial, and in the presence of ' two or more credible witnesses.' fe The furnishing the prisoner with the names, professions, and places of abode of the witnesses and jury, so long before the trial, may serve many bad purposes, which are too obvious to be men- tioned. One good purpose, and but one, it may serve. It giveth the prisoner an opportunity of informing himself of the character of the witnesses and jury. But this single advantage will weigh very little in the scale of justice or sound policy, against the many bad ends which may be answered by 109 by it. However, if it weigheth any thing in the scale of justice, the Crown is entitled to the same opportunity of sifting the character of the prisoner's witnesses. " Equal justice is certainly due to the Crown and the public. For let it be remembered, that the public is deeply interested in every prosecution of this kind that is well founded. Or shall we presume that all the management, all the practising upon the hopes or fears of witnesses, lieth on one side ? It is true, power is on the side of the Crown. May it, for the sake of the Constitutional rights of the subject, always remain where the wisdom of the law hath placed it ! But in a Go- vernment like ours, and in a most changeable climate, power, if, in criminal prosecutions, it be but suspected to aim at oppression, generally dis- armeth itself. It raiseth and giveth countenance to a spirit of opposition, which, falling in with the pride or weakness of some, the false patriotism of others, and the sympathy of all, not to mention private attachments and party connexions, generally turns the scale to the favourable side, and frequently against the justice of the case." Every question which could admit of any reasonable doubt, whether it was conformable or not to the laws of evidence, has been referred to the 110 the Judges : but there was one proposition, which surely no Lawyer could think admitted of a doubt, yet, without referring it to the Judges, was decided in favour of the Defendant; viz. That her Counsel should have the liberty of calling back any witness for the prosecution, whose examination was closed by cross-examination and re-examination. That was not referred to the Judges : and I observed that the Lord Chancellor, and Lord Redesdale, who has been a Chancellor, voted in a minority against the permission. I conceive the universal practice, long firmly established in all the courts, from the Court of the Lord High Steward to the Quarter Sessions, is this, viz. That after the cross-examination, and re-examination upon that, neither side can call back a witness. But the Judge or the Court may call back a witness, to ask him a question ; and that question, I should think, ought to be confined to one that is connected with his former evidence, and which is agreeable also to the law of evidence. The Counsel on either side may suggest such a question to the Judge or the Court ; and if the Court think it will assist in promoting justice ac- cording to law, it then will adopt it, as a question originating from itself. A power beyond that might be greatly abused, either by one side or the other, or by both, more particularly in a long trial : for Ill for the most honest and honourable witness, any Peer of the House of Lords, might be called back, and asked, If he did not make declarations to a certain effect in the Pump Room at Bath, in the hearing of John Smith and William Thompson in particular : though he should deny that he ever made such declarations to them or to any one, either there or elsewhere, and he should positively swear that he never was in the Pump Room at Bath, or in any other room there, yet John Smith and William Thompson may be called to prove what he denies ; and thus the most honourable wit- ness, a Prince of the Blood Royal, might be discredited ; his country, or the cause, may lose the benefit of his testimony ; and he himself be subject to all the infamy and punishment of perjury by two men who have been actually guilty of it. These are some of the inconveniences of a departure from those laws which have long been established by the wisdom of our ancestors. The law knows no difference, whether the defendant is the wife of a King, or the wife of the lowest of his subjects. In the observance of general rules, there may be cases of hardship : the King cannot be a witness for his own daughter, or for the daughter of any other man ; so neither he nor any man can ever be witness for or against his own wife. So if the wife of the eldest son of the King, in a trial for her life, were were charged with sleeping with another man on a particular night at a distance from home, her husband could not be permitted to prove that on that night she slept in his own bosom ; or the King himself could not prove on that night she was in the bosom of his family. There is wisdom in the rule, and true liberty in its being common and equal to every subject alike. It has been said, that in the first Divorce Bill before the House of Loi;ds, in the case of the Duke of Norfolk and his wife, a list of the witnesses was previously given by the Duke to his Duchess. It appears by the Journals of the House of Lords, that, after the Bill was brought into the House of Lords, and the Duchess had put in an answer to it, her Proctor demanded that the Duke's witnesses, when they came to be sworn, should give in their names, residences, and employments, as they do in the spiritual courts : this was granted ; and on Saturday the 24th January, 1 692, all the witnesses for the Bill were sworn, and they gave their names and descriptions ; and on the following Tuesday they were examined, and their evidence taken down. Afterwards, the Duchess's witnesses were sworn in like manner, and their evidence taken shortly afterwards. This was said, at that time, to be the practice of the spiritual courts. But 113 But the case clearly proves, that at that time, in a Divorce Bill, there was no communication of the names or description of the witnesses on either side, till they came to be sworn ; and only one full day, besides Sunday, was allowed for making inquiries respecting them. Since that time, the Lords, to prevent fraud and collusion by the husband and wife, in obtaining a Bill of Divorce to dissolve the marriage contract, require that the husband shall have gained a sen- tence of divorce from bed and board in the spiritual court, on account of the adultery of his wife ; and also a verdict for damages against the seducer of the wife, in an action at law. But a sentence in the Commons, and the verdict of a jury, may be dis- pensed with in the case of private families, where they are impracticable. This being a very important part of the Bill of Pains and Penalties, I will insert what Sir William Blackstone has said upon the subject of Divorce, and what I have added in a note : " Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving it ; but for some super- venient cause, it becomes improper or impossible i for 114 for the parties to live together : as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and .with such mysterious reverence of the nuptial tye, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. And this is said to be built on the divine revealed law ; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another. The Civil law, which is partly of Pagan original, allows many causes of absolute divorce ; and some of them pretty severe ones (as if a wife goes to the theatre or the public games, without the knowledge and consent of the husband) ; but among them, adultery is the principal, and with reason named the first. But with us in England, adultery is only a cause of separation from bed and board : for which the best reason that can be given is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent ; as was the case when divorces were allowed for canonical dis- abilities, on the mere confession of the parties, which is now prohibited by the canons. However, divorces a vinculo matrimonii, for adultery, have of late 115 late years been frequently granted by act of Par- liament*." BLACKSTC^E, vol. I. p. 440. A suit in the Commons, and an action, must be dispensed with in the case of the King. He could bring no action : in his case, the trespass would be merged in the treason. A divorce a mensa et thoro would be of no avail to him, for he could not be * " To prevent divorces a vinculo matrimonii from being ob- tained in Parliament by fraud and collusion, the two Houses not only examine witnesses, to be convinced of the adultery of the wife, but they require also that the husband shall have obtained a sentence of divorce in the spiritual courts, and a verdict with damages in a court of law from some one who has had criminal intercourse with the wife.