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<e- 
 sumptionibus* '. They have a great variety of rules, 
 which we have no knowledge of: for example, 
 Regulte sunt, quod inimicus contra inimicum non 
 admittatur, nee amasius pro amasid ; quod magis 
 credatur testibus senioribus quam junior ibus, clericis 
 quam laicis, masculis quam foeminis, virgini quam 
 viduce, affirmantibus quam negantibus, etiam quod 
 affirmantes sint laid, et negantes sint clerici, and 
 ten thousand similar rules and distinctions, which 
 the Law of England has thought it better to be 
 without. 
 
 Besides that different nations will vary in the 
 laws of evidence, the same country at different 
 times will alter their laws upon that subject. If 
 the best could be ascertained, they ought ever to 
 remain invariable ; and it is much to the credit of 
 the English system of evidence, that it is confirmed 
 by the experience of ages : it is almost entirely 
 derived from times anterior to the most ancient of 
 our statutes ; for, except two or three alterations 
 
 which 
 
 * The Commentary of Matthaeus, in the Chapters de Proba- 
 tionibus, is the only book upon evidence, in the Civil Law, that 
 I have had occasion to look into, which can be read with 
 pleasure.
 
 which have been made by Parliament,, it is wholly 
 founded upon the unwritten, or common law. 
 
 I am not so much in love with my subject, as to 
 be blind to its defects, and not to be ready to ac- 
 knowledge that our law of evidence is capable of 
 great improvement. It is only necessary to men- 
 tion a single instance. 
 
 If a sentence of excommunication is pronounced 
 against any man for contumacy, or some trifling 
 spiritual offence, the public justice of the nation is 
 deprived of the benefit of his testimony, till that 
 sentence is reversed. And the property, liberty, 
 and life of an innocent man may be lost for want of 
 the evidence of one, whose veracity by such a sen- 
 tence, in the opinion of mankind, is not in the 
 smallest degree contaminated ; and whose word 
 will pass for as much upon 'Change the day after 
 the sentence is pronounced, as on the day before ; 
 yet, pending the existence of the sentence, in no 
 court of justice can he be heard upon his oath. 
 
 Whatever policy there might be in this rule in 
 ancient times, it has "long since ceased ; and it is 
 now an obstruction to public justice in the temporal 
 courts, without being any furtherance of it in the 
 spiritual. But it -is not the fault of judges or 
 lawyers, that such a nonsensical ridiculous law 
 
 D should
 
 34 
 
 should exist : it is as irrevocable as, fate, till it is 
 abrogated by the united authority of the King, 
 Lords, and Commons*. 
 
 Having endeavoured to distinguish between the 
 forms of Parliament and of other courts, and the 
 general law to which all of them must be subject, 
 and to prove that the authorities which have been 
 referred to apply only to the special pleading, or 
 the formal part of the administration of justice, 
 I shall now proceed to produce such positive autho- 
 rities as I have been able to collect, and such argu- 
 ments as my own mind has suggested, to support 
 the proposition which I maintain, viz. That the 
 House of Lords are bound by the same law of 
 evidence which is received, or ought to be received, 
 in all other courts. I say ought to be received in 
 all other courts ; for it must be admitted, that there 
 are several decisions upon evidence, as upon every 
 other subject, which are of equivocal authority, 
 and may, perhaps with propriety, be questioned, 
 
 both in the House of Lords and in every other 
 
 f 
 
 court 
 
 * This was written in the year 1792 ; and in the year 1813 
 this objectionable law of evidence was removed ; when it was 
 enacted, by the 53 Geo. III. c. 1 27, that no sentence of excom- 
 munication shall be pronounced by the Ecclesiastical courts in 
 cases of contempt or disobedience of their order, and that 
 persons excommunicated shall in no case incur any civil penalty 
 or diss
 
 court in the kingdom. If the four Judges of the 
 respective courts of Westminster Hall were infallible, 
 and never pronounced an erroneous decision, 
 appeals, re-hearings, and writs of error, would cease 
 to fill a considerable portion of our books. Points 
 of evidence, upon which there is a diversity of 
 opinion, can only be fixed and ascertained by the 
 dernier ressort the House of Lords. But what I 
 advance is this, viz. That whatever the Lords, upon 
 an appeal, would determine to be the evidence of 
 the inferior courts, they are bound to declare that 
 to be the law of evidence in their own court, in all 
 judicial cases. Perhaps every Lord of Parliament 
 is in the Commission of the Peace : whatever then 
 any Peer, upon full consideration, and the best 
 information, would pronounce to be evidence when 
 he is acting by his own fire-side as a Justice of the 
 Peace, or presiding at the Quarter Sessions, that, 
 upon the most important and most solemn occasion 
 in full Parliament, he is bound to declare to be 
 evidence. We often hear it asked with a con- 
 temptuous tone of triumph, Shall the House of 
 Lords, a tribunal erected by the Constitution, to 
 try and condemn the Governors of Provinces, the 
 Ministers of the Crown, and Princes of the Royal 
 Blood, be bound by those paltry rules of evidence 
 by which at the Old Bailey they convict a pick- 
 pocket, or try at Hicks's Hall a petty assault and 
 battery ? But let us not be imposed upon by high- 
 D 2 sounding
 
 36 
 
 sounding words, and an affectation of unmeaning 
 mystery and sublimity. It matters not which 
 court precedes ; but they must follow each other, 
 till they establish a permanent and invariable con- 
 formity. Nor is there any circumstance which 
 can give us more satisfaction and delight, in con- 
 templating the Law of England, than to be con- 
 vinced that it pays no regard to rank or station ; 
 and that the life and liberty of a Prince and a 
 porter are equally under its protection, and, when 
 public justice demands it, are equally exposed to 
 hazard and danger, .fj u'^jvu:: tvs )o ***' 
 
 It will scarce, I presume, be asserted, that there 
 is a difference in the law of evidence before the 
 House of Lords in Parliament, whether the pro- 
 ceeding is by indictment or by impeachment ; for in 
 both cases all the Lords are the Judges both of law 
 and fact ; and every Peer for treason and felony 
 may be either impeached or indicted. Nor do I 
 imagine that it will be contended that there is a 
 difference in the court of the Lord High Steward, 
 in which the prosecution must commence by an 
 indictment, and where the Steward is the sole judge 
 of points of law and evidence, and the Peers are 
 triers of fact only. Whether a Peer is tried upon 
 an indictment in the court of the High Steward, 
 or in the high court of Parliament, depends 
 entirely upon the contingency of the sitting of 
 
 Parliament :
 
 37 
 
 Parliament : and it cannot reasonably be supposed, 
 that whether a Peer is impeached or indicted in 
 full Parliament for the same crime, his chance of 
 conviction or acquittal should be altered ; and 
 therefore I conclude, in all these cases, that the 
 evidence must be the same. Having never heard 
 or seen any distinction suggested, I shall take that 
 for granted ; and shall mention those judicial cases 
 in the two courts, in which I find points of evidence 
 argued and decided upon the same principles which 
 would have been the ground of decision in every 
 inferior court. 
 
 In all cases of judicature before the House of 
 Lords, it has been the ancient practice for the 
 twelve Judges to be constantly present ; and ques- 
 tions which arose upon evidence have always been 
 referred to them for their opinions. From what 
 sources they should draw their information, but 
 from the lucubrationes viginti annorum in the 
 Common Law, and their experience in the inferior 
 courts, I can form no conjecture. 
 
 I see one of our learned Judges has, in fact, 
 declared, that what is decided upon evidence in the 
 House of Lords, in an impeachment, is an authority 
 for the inferior courts ; and consequently so far, if 
 there is a consistency in the House of Lords, the 
 evidence in both must be uniformly the same. 
 
 I mean
 
 38 
 
 I mean Mr. J. Buller, who, in the last edition of 
 the Law of Nisi Prius, in the chapter upon 
 evidence, refers to Mr. Hastings 's case before the 
 House of Lords as an authority upon one point*. 
 
 ,<";,; -j^v; > '>-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 qu<e peperit : contingens, cujus conse- 
 quentia probabilis est, veluti ccedem fecisse, qui 
 cruentatus est ; Atalantam virginem non esse, quod 
 
 cum 
 * Har. St. Tr. vol. XI. 426.
 
 .< 64 
 
 cum adolescentibus spatietur sola per sylvas. In the 
 first case, one fact is a certain demonstration of the 
 other ; but in the second, the circumstances must 
 frequently lie, when they charge with murder a 
 person stained with blood, or Atalanta, from such 
 companions and conduct, with a want of chastity. 
 But he proceeds to observe ; Conlingentia verd quan- 
 quam singulajidem nonfaciant,plura tamen conjuncta 
 crimen manifestare possunt. Rem uno atque altero 
 exemplo declarabimus. Occisus est Kalendis Mcevius : 
 Titius perempti inimicus fuit ; eidem stepius non 
 solum inlerminatus, sed et insidiatus est. Cum de- 
 prehenderetur iisdem Kalendis in loco ctedis cruen- 
 tatus, cum gladio cruento, ad mensuram vu/neris 
 facto, toto vultu expalluit, interrogates nil respondit, 
 trepidb fugit. Hie singula quidem argumenla iiifir- 
 mtora sunt, universa tamen ccedis auctorem Titium 
 evidenter designant, recttque Duarenus dixit, non 
 dubitaturum se hunc reum carnifici jugulandwn dare. 
 Tit. xv. c. 6. Yet Duarenus might have con- 
 demned and executed an innocent man. Every 
 one of these circumstances mus- be proved by posi- 
 tive witnesses, who may be either wicked or mis- 
 taken ; but even if they are pure and correct, the 
 conclusion we draw from the facts disclosed may 
 be erroneous. 
 
 So that, in circumstantial evidence, there must, 
 of necessity, be more chances for error than in 
 
 positive
 
 65 
 
 positive evidence. If any number of witnesses 
 should swear they saw the prisoner draw a reeking 
 sword from the side of a dead man, we have not 
 the same degree of certainty that he either mur- 
 dered or killed him, as if the same witnesses had 
 sworn they had seen him run it through his body. 
 It affords a violent presumption, but still it might 
 have been the friendly act of an innocent man, who 
 had accidentally passed that way after the murder 
 was committed : or even if it was the prisoner's 
 own sword, it might have been snatched from his 
 side and plunged into the body of the deceased by 
 some one who had escaped ; or the deceased might 
 have borrowed it, and have fallen upon it himself. 
 All human testimony is nothing more than a high 
 probability ; and it is true that circumstantial 
 evidence in one case may produce a higher degree 
 of it, or may more nearly approach to certainty, than 
 direct and positive evidence in another*. Human 
 
 testimony 
 
 * That both positive and circumstantial evidence may fail, 
 will appear from the following cases. The first is in the Chronicle 
 of the Gentleman's Magazine for Oct. 177 2 The other is 
 from the fifth volume of Causes Celebres, p. 438, where several 
 more trials of the same nature are related. 
 
 Sept. 14, 1772. Came on at the sessions in the Old Bailey, 
 the trial of one Male, a barber's apprentice, for robbing Mrs. 
 Ryan, of Portland-street, on the highway, on the 17th of June 
 last. The witnesses swore positively to the identity of the lad, 
 and the whole court imagined him guilty. He said nothing in 
 
 his
 
 66 
 
 testimony is so far distinct from certainty, that it 
 admits of all the degrees of probability, and by 
 
 some 
 
 his defence, but that he was innocent, and his evidences would 
 prove it. His evidences were the books of the court ; to which 
 reference being made, it appeared that on the day and hour 
 when the robbery was sworn to be committed, the lad was on 
 his trial at the bar where he then stood, for another robbery, in 
 which he was likewise unfortunate enough to be mistaken for 
 the person who committed it ; on which he was honourably 
 acquitted. 
 
 Voici un autre fait, dont j'ignore 1'epoque, et qui m'a ete 
 transmis par la tradition. Avant qu'oneut rebati cette longue 
 suite de maisons qui bordent la place Saint Michel a Paris, en 
 face de la rue Sainte Hyacinthe, une marchande veuve et agee 
 occupoit, au meme endroit, une petite boutique, avec une 
 arriere boutique, ou elle couchoit. Elle passoit, dans le quar- 
 tier, pour avoir beaucoup d'argent amasse. Un seul gartjon 
 composoitj depuis long-terns, tout son domestique. II couchoit 
 a un quatrieme etage, dont 1'escalier n'avoit point de commu- 
 nication avec 1'habitation de sa maitresse ; il etoit oblige, pour 
 s'y reudre, de sortir dans la rue ; et lorsqu'il s'alloit coucher, il 
 fermoit la porte exterieure de la boutique, et emportoit la clef, 
 dont il etoit seul depositaire. 
 
 On voit, un matin, la porte ouverte plutot qu'a 1'ordinaire, 
 sans qu'on remarquat aucun mouvement qui annon^at que la 
 marchande, ou son gar$on fussent leves. Cette inaction donna 
 de 1'inquietude aux voisins. Cependant on ne remarque 
 aucune fracture a la porte : mais on trouve un couteau ensan- 
 glante, jelte au milieu de la boutique, et la marchande assassinee 
 dans son lit, a coups de couteau. Le cadavre tenoit, dans une 
 main, une poignee de cheveux j et dans Tautre une era vate 
 Aupres du lit, dtoit un coffre qui avoit eie force. 
 
 On
 
 67 
 
 some philosophers has been considered according 
 to the mathematical principles of the doctrine of 
 
 chances 
 
 On saisit le gargon de boutique ; il se trouve que le couteau 
 lui appartient. La cravate que tenoit la marchande etoit a lui. 
 On compare ses cheveux avec ceux qui etoient dans 1'autre main; 
 ils se trouvent les memes. Enfin la clef de la boutique etoit 
 dans sa chambre ; lui seul avoit pu, moyennant cette clef, entrer 
 cbez la marchande, sans fracture. D'apres des indices ainsi 
 cumules, et si concluants, on lui fait subir la question ; il 
 avoue, il est rompu. 
 
 Peu de terns apres, on arrete un garden marchand de vin, 
 pour je ne sgais quel autre dclit. II declare, par son testament 
 de mort, que lui seul est coupable de 1'assassinat commis & la 
 Place Saint Michel. Le cabaret ou il servoit etoit attenant a la 
 demeure de la marchande gorgee. II etoit familierement lie 
 avec le gargon de boutique de cette marchande j c'etoit lui qui 
 mettoit ordinairement ses cheveux en queue ; quand il peig- 
 noit, il avoit soin de ramasser ceux que le peigne detachoit, et 
 dont il avoit peu-a-peu forme la poiguee qui s'etoit trouvee 
 dans les mains du cadavre. II ne lui avoit pas ete difficile de 
 se procurer une des cravates et le couteau de son camarade, et 
 de prendre, avec de la cire, 1'empreinte de la clef de la boutique, 
 pour en fabriquer une fausse. 
 
 To this note in the first edition, I now think it proper to 
 make the following addition : 
 
 In the Morning Herald of the 27th of September 1820, the fol- 
 lowing case is stated as having occurred in Ireland. A servant 
 of a bleacher had stolen property from a bleaching-ground, to a 
 great extent. The master offered one hundred pounds reward 
 to any one who could discover the thief. The servant, to 
 obtain the hundred pounds reward, and to remove all suspicion 
 from himself, borrowed a penknife from a young man in the 
 
 p 2 neighbourhood ;
 
 68 
 
 chances and combinations. In the second volume 
 of the Miscellanea Curiosa, the first Paper (said to 
 
 be 
 
 neighbourhood ; then invited him to come to see him in the 
 night, and persuaded him to bring his father's lantern, to light 
 him home. The poor young man so came; and after supping 
 with him, the designing villain told him that he had left acci- 
 dentally his penknife in the bleaching-ground, and explained 
 to him exactly where he might find it, on his return home. 
 
 The unsuspecting young man went as he was directed ; but 
 the servant immediately informed his master that some one was 
 going with a light to the bleaching-ground. They followed 
 with guns, and as the young man was stooping for the knife, 
 he was shot dead. A web of cloth being half cut through with 
 the young man's own knife, which was known in the neigh- 
 bourhood to be his ; his father's lantern also being known ; and 
 cloth and yarn being placed in heaps, ready to be carried away; 
 constituted such a concurrence of circumstances, that no one 
 doubted but this innocent young man had been deservedly 
 shot. It was not stated how the real truth was discovered. 
 
 Such diabolical machinations no administration of justice 
 can ever entirely extirpate. But to the honour of English 
 Judges and Juries, I have never heard of the execution of any 
 man found guilty upon circumstantial evidence, where it could 
 be proved afterwards that he was innocent. If it did some- 
 times so happen, it would do no discredit to our laws and 
 Government. I have been sorry to see lately, that those who 
 wish to degrade every part of the Law of England, insinuate 
 or assert that it is unjust and cruel to condemn men to punish- 
 ment upon circumstantial evidence. All human testimony, 
 positive or circumstantial, never can amount to absolute cer- 
 tainty, but only to that degree of probability which is called 
 moral probability. I presume it is so called, because wise and 
 
 good
 
 69 
 
 be written by Dr. Halley) is entitled, A Calculation 
 of the Credibility of Human Testimony-, in which 
 
 that 
 
 good men th<nk it morally right to act upon it. Infinite mis- 
 chief and ruin would result, if we turned loose again upon 
 society all murderers and malefactors, who could only be 
 brought to punishment by circumstantial evidence. We must 
 all act to the best of our knowledge and judgment for the 
 protection of others and ourselves : we must not sit still, as 
 Dr. Johnson is said to have done, in a state of lowness of spirits, 
 declaring that he would not walk across the room for fear he 
 should kill a fly. 
 
 What I have said respecting the execution of an innocent 
 man, must be confined to modern times j for Lord Chief 
 Justice Hale has related some such cases which had existed in 
 his time: and he observes upon them, " I would never convict 
 any person of murder or manslaughter, unless the fact were 
 proved to be done, or at least the body found dead, for the 
 sake of two cases" which he relates, where the prisoner in each 
 was found guilty and executed, and the person charged to be 
 murdered afterwards appeared and gave an account of his 
 absence. 2 Hale P. C. 290. 
 
 I cannot conclude this note without animadverting upon 
 the highly reprehensible manner in which several Clergymen 
 conduct themselves, in pressing, almost torturing, prisoners, 
 before execution, to confess their crimes. I should advise them 
 to confine their pious exhortations and influence to prepare the 
 convicts for the government of another world; but not to injure 
 greatly the government in this, by inducing the unthinking 
 multitude to believe that he must have suffered wrongfully, 
 who at the last moment persisted in . declaring his innocence, 
 after so many urgent importunities to lead him to confess his
 
 70 
 
 that learned philosopher shews, that if we could 
 determine the probability of the credit of each 
 
 witness, 
 
 Another interesting case of that kind I have read, though 
 I am unable to inform the reader where it is to be found. But 
 the circumstances stated were these. A gentleman, who lived 
 near Epping Forest, was guardian to his niece, a young lady of 
 great fortune} to which, upon her death, he was entitled to, as 
 her heir or next of kin. They were seen walking together 
 into a very lonely part of the forest : he was seen there drag- 
 ging her upon the ground ; and she was heard, in a beseeching 
 voice, to say, " My dear uncle, do not kill me ! do not kill 
 me !" The report of a gun was soon afterwards heard near 
 the place. The uncle returned home without his niece, 
 giving no satisfactory account of her disappearance. He was 
 tried for the murder of her, found guilty, and executed. 
 
 The niece sometime afterwards returned, and gave this true 
 account of the whole transaction. 
 
 She was in love with a young man, whom her uncle would 
 not give his consent that she should marry : she walked into 
 the forest with him, went down upon her knees to supplicate 
 his consent : she used the words proved, she held fast his 
 hands, and he, to disengage himself, dragged her upon the 
 ground : when they were separated, he returned hastily to his 
 house : she saw a gamekeeper immediately afterwards kill a 
 woodcock j and she ran down a path to a place where her lover, 
 by agreement, was waiting with horses ; which conveyed them 
 to an English port, where they embarked for Holland, and 
 had no opportunity of hearing of the uncle's trial before their 
 return to England. 
 
 This case probably existed before Lord Hale's Pleas of the 
 Crown were published,, recommending no conviction before 
 the body of the deceased was found. 
 
 If
 
 71 
 
 witness, the sum or product of the whole testimony of 
 witnesses, or the probability of the guilt or innocence 
 of a prisoner, would be a strict and mathematical 
 calculation. One proposition clearly demonstrated 
 by those principles, is, that the weight or proba- 
 bility of human testimony, given any degree of 
 credibility to the witnesses, rises in a much higher 
 ratio or proportion than the number of the wit- 
 nesses : so that where the probability of the truth 
 of each witness is to the probability of his false- 
 hood, from error or corruption, as Q to 1 ; if 
 there are two, of that degree of credit, it is QQ 
 
 to 
 
 If the body of the deceased had been found, and she had 
 been shot by some other man after her uncle had left her, he 
 could have had little chance of an acquittal, even from the 
 most cautious and discreet Judge and jury of the present 
 times. 
 
 The best apparent evidence may be delusive and fallacious : 
 a theft can seldom be proved by an eye-witness ; and a very 
 great proportion of depredations would be committed with 
 impunity, if the parties charged were not convicted upon 
 circumstantial evidence. The strongest and most usual pre- 
 sumption is the recent possession of the stolen property, < not 
 answered by proof that the party became possessed of it 
 honestly. 
 
 But there is a memorable case in Holy Writ, where this 
 presumption failed ; viz. the discovery of Joseph's cup in 
 Benjamin's sack : but the authority of the case also proves 
 that wise and good men at that time acted upon such a violent 
 presumption of criminality.
 
 to 1, that their testimony is true, or that they are 
 not both wrong ; if three, 999 to 1, and so on. 
 So if fifty such witnesses should concur, the pro- 
 bability of their testimony would be a number ex- 
 pressed by 5O nines to 1 ; and that such great 
 odds should lose, would by many be regarded as a 
 greater miracle than if the sun should appear at 
 midnight, or the dead be raised to life*. Some 
 
 ingenious 
 
 * Mr. Hume's celebrated argument against miracles seems 
 to me to amount to nothing more than his own assertion, that 
 if any number of men whatever should tell him they had seen 
 a miracle, he would not believe them. But a religious mind 
 would be more inclined to think that the Creator of the 
 Universe might, for wise purposes, suspend or reverse the 
 ordinary operations of nature, than that ten thousand men 
 should concur in a falsehood. First Edition. 
 
 The stupendous work of the Creation required an inspired 
 writer to describe it j and all beyond what he has taught us, is 
 too vast for the mind of man to comprehend. But we all 
 have lived but a few years in this world, before we clearly per- 
 ceived, that in every year there is a Power or Conservator, who 
 works a miracle for the preservation of the human species. 
 We have sometimes extreme heat, sometimes extreme cold, 
 extreme rain, or drought, and many other extremes, where we 
 are all convinced that a little more would end in the destruction 
 of the race of man j but when we apprehend that the ship is 
 just going to strike upon a rock, where all embarked in it must 
 inevitably perish, we find that there is an invisible almighty 
 pilot at the helm, who steers us again from the impending 
 danger, into the main ocean of safety and comfort. 
 
 How this has been effected, no astronomer, chemist, or 
 human scholar, has yet been able to teach us. 
 
 The
 
 73 
 
 ingenious friends of mine, accustomed to disquisi- 
 tions of this nature, have drawn this conclusion 
 from these principles, viz. That no degree of nega- 
 tive testimony merely can ever totally destroy the 
 probability of affirmative testimony : as, for instance, 
 if one man asserts a fact, and another of equal 
 credit denies it, some probability remains on the 
 side of the affirmative ; as if one should affirm 
 that A had a legacy by a certain will, and if 
 another should assert he had read the will, and 
 that there was no legacy for A, yet before A him- 
 self saw the will, upon this testimony he would give 
 something for his chance. If we should suppose 
 that the holder of any ticket in the lottery is in- 
 formed by two men, each of whom is as much in 
 the habit of telling lies as truth, so that it is an 
 even chance what each asserts is true or false, and 
 if one should declare that he heard that ticket 
 called a prize of 1 OOO/., the other that he heard it 
 called a blank ; from this testimony the chance of 
 that prize would be worth 250/. Or if we suppose 
 
 that, 
 
 The Mahometan writers surpass us Christians in their 
 expressions of reverence and veneration for the Creator. One 
 celebrated Poet has said, " If you were to endeavour to re- 
 count all the blessings you have derived from your Creator, 
 even till the day of judgment, you could not mention one in a 
 thousand." And in another place : " The sun, the moon, the 
 stars, the clouds, are all employed to produce you bread ; there- 
 fore, O man, do not eat it with ingratitude." Sddi.
 
 74 
 
 that, from the morning of a certain day, an under- 
 writer would insure a ship at a premium of ten per 
 cent., but that he was afterwards informed by two 
 sailors, each of whose credibility we will estimate 
 at an even chance as before ; by one, that on that 
 day he saw the ship spring a leak and sink ; by the 
 other, that he sailed in company with that ship all 
 the day, and that he left her in the evening safe and 
 well; (here I preclude the supposition that both are 
 correct with respect to the fact, but one mistakes 
 the day ;) though these two testimonies are directly 
 opposite, yet they by no means cancel each other, 
 but they produce such an effect, that if the under- 
 writer is a man of prudence and calculation, he 
 would not afterwards insure that ship for less than 
 32^ per cent*. The demonstration of the solution 
 of these cases I must leave to those who have an 
 acquaintance with the principles, and a disposition 
 to be amused by such speculations. But it must be 
 
 admitted, 
 
 * The higher the probability of each of such opposite testi- 
 monies, the more nearly they will cancel each other, or less 
 effect will be produced. But negation merely can never 
 tota'ly destroy affirmation : the effect of an affirmation can only 
 be cancelled by an affirmation of something of a directly oppo- 
 site nature. If two persons, equally credible, should assert, one 
 that A had lost JOOO/., the other that A had won 1000/., then 
 A's situation would be of the same value it was before ; and 
 gamesters and underwriters would not object to stand in his 
 shoes.
 
 75 
 
 admitted, as we cannot with any degree of certainty 
 appreciate the credit of each witness, they are of 
 little or no use in practice, though they are unde- 
 niably true in abstract theory. But science built 
 upon a firm foundation, when properly considered, 
 never can be at variance with good sense. The 
 most honourable acquittal leaves some unfavourable 
 presumption ; for if the person tried should have 
 the misfortune to have one or two more such 
 acquittals for the same crime, it cannot be affirmed 
 that that person will stand as clear from suspicion, 
 as if he never had been tried at all ; therefore some 
 probability must remain in favour of each accusa- 
 tion, for the sum of any number of nothings would 
 
 still be nothing f. 
 
 ' 
 
 - 
 
 It is so much the general understanding of man- 
 kind that no evidence amounts to certainty, that 
 the most conscientious witnesses in all times have 
 been inclined to qualify their testimony by belief. 
 The witnesses of the present day perpetually believe, 
 where they entertain no doubt : and Cicero tells us, 
 F^eterum in testimoniis dicendis ea fait di/igenlia ac 
 religio, quod inscientia multa versaretur in vita, ut, 
 
 arbitrari 
 
 \ In looking into the Civil Law books, I find in Farinacius, 
 Quaest. LXV. n. 201. " Plus (inquiunt Doctores) creditor duobus 
 affirmantibus quam mille negantibus:" and Muscardus calls this, 
 Regula ilia vulgaris, vol. I. conclu. 7.
 
 arbitrari se, testes dicerent, etiam quod ipsi vidissent. 
 Lib. IV. Acad. Quest. 
 
 In the consideration of circumstantial evidence, 
 I have stated that the circumstances must be proved 
 by living witnesses or positive testimony : but 
 there is a species of testimony which is called the 
 evidentia rei : though this must be introduced by 
 positive evidence, yet, when produced, it speaks for 
 itself, and requires no explanation. Of this nature 
 may be mentioned two cases which have happened, 
 within a few years, upon the Northern circuit. In 
 one case, a person was found shot by a ball ; and 
 the wadding of the pistol stuck in the wound, and 
 was found to be part of a ballad called Sweet Poll 
 of Plymouth, which corresponded with another part 
 found in the pocket of the prisoner. The other 
 also was a case of murder ; and in the head of the 
 deceased there was a chip or splinter, which 
 exactly fitted the cavity in a bludgeon, from which 
 a piece had been lately broken ; which bludgeon the 
 prisoner carried in his hand when he was appre- 
 hended. Though this account of the two pieces 
 of the ballad, and two pieces of the bludgeon, 
 must be proved by positive testimony, yet the 
 court and jury are as competent judges of the 
 fitness and correspondence of the parts as the 
 witnesses. Cui adsunt testimonia rerum, uid opus 
 est verbis ? 
 
 These
 
 77 
 
 These were certainly strong corroborations of 
 other circumstances ; but if they had stood alone, 
 they would have deserved little consideration ; for 
 if the ballad and the bludgeon had been thrown 
 away by the murderers, they were objects likely to 
 draw the attention of an innocent man, who would 
 naturally have put one in his pocket, and have 
 carried the other in his hand*. 
 
 Mr. 
 
 * An accomplice may be admitted a witness against a pri- 
 soner indicted for a crime ; but he is only admitted in a case 
 where there is not sufficient evidence to convict both, or all, 
 without his testimony. But as he is swearing to save himself, 
 or, as it is said, with a halter about his neck, which he might 
 be disposed to slip off, and put about the neck of the first inno- 
 cent man he met, all courts of justice direct the jury to acquit 
 the prisoner, unless the evidence of the accomplice is con- 
 firmed or corroborated by some material testimony from a 
 witness free from all suspicion. The law is the same at the 
 Quarter Sessions as at the Assizes ; but as Justices of the 
 Peace frequently mistake what is a circumstance to confirm the 
 evidence of the accomplice, I will explain it by a case which 
 actually happened to myself, several years ago, when 1 attended 
 a Quarter Sessions where very experienced Magistrates pre- 
 sided. I had a brief for the prisoner, and an accomplice was 
 produced as a witness : he proved that the prisoner and himself 
 resolved to rob the warehouse of the prosecutor, which was a 
 room up stairs ; for that purpose they took a ladder from a 
 neighbouring yard ; they placed it against the window of the 
 room, they took out a pane of glass, opened the casement, 
 and went in ; they took several articles, some of which they 
 put into a green bag ; but being alarmed, they made their 
 
 escape,
 
 78 
 
 Mr. Justice Blackstone says, that <f light or rash 
 presumptions have no weight or validity at allf-" 
 
 This 
 
 escape, and left the green bag behind them, containing various 
 articles which he particularly described. Several witnesses 
 were called to prove that there was a ladder in the place the 
 accomplice stated, that it had been removed to the prosecutor's 
 warehouse, that a pane of glass was taken out, the window 
 found open, and a green bag and every thing was proved exactly 
 as the accomplice had described. I, as counsel for the prisoner, 
 suggested to the court that all this was no evidence of corro- 
 boration with regard to the prisoner ; it proved no connexion 
 with the prisoner ; it affected him no more than any other 
 man ; it would be equally true if any gentleman at the bar or 
 upon the bench had been indicted ; 
 
 Mutato nomine, de te 
 
 Fabula narratur. 
 
 But the Justices, with one voice, declared, that they had never 
 heard so clear and satisfactory a corroboration. The prisoner 
 was found guilty, and transported. t 
 
 All this would have been true, if the witness had committed 
 the crime alone, or with any other man. I state this par- 
 ticularly for th6 use of Justices of the Peace. Though I do not 
 find this distinction made by the best authors upon evidence, 
 yet I have great confidence that it will be approved by the 
 Judges. In a late case of a sheep-stealer, tried before myself 
 at Ely, an accomplice was called, who stated that he and the 
 prisoner went to the prosecutor's field on a certain night and at 
 a certain hour ; they caught a sheep, they dug a hole, they 
 stabbed the sheep, and let the blood run into the hole; they 
 skinned the sheep, and took out the entrails - } the skin and the 
 
 entrails 
 
 f Vol. III. 371.
 
 79 
 
 This, I humbly conceive, is not quite correct : singly, 
 they ought to have no validity upon the rnind of 
 the court ; but every circumstance which affords a 
 presumption, however light, must be received : 
 though it adds but a drop to the ocean, it will 
 have validity according to its weight ; and a number 
 of such presumptions may become of importance, 
 or, ^in the words of Matthseus, Possunt diversa 
 genera ita conjungi, ut quce singula non nocerent, ea 
 universa tanquam grando reum opprimant. 
 
 By these general observations upon the nature of 
 positive and circumstantial evidence, I may per- 
 haps be thought to have wandered from my subject ; 
 but I make this application of them, that whatever 
 
 is 
 
 entrails they concealed in a certain part of a ditch, and hid the 
 knife. Witnesses were called, to prove that every thing was 
 found as this witness had described. I held this evidence was 
 no confirmation : but a respectable witness proved that he was 
 out that night ; it was moonlight, and he could clearly distin- 
 guish the witness and the prisoner together, going ifbm their 
 homes towards the pioecutor's held: that, I told the jury, was 
 a circumstance of the strongest confirmation, and upon that 
 they found the prisoner guilty. 
 
 In the horrid and sanguinary conspiracy of Thistlewood and 
 his associates, accomplices were called to state the design and 
 plan ; but they were confirmed by their being all found with 
 arms a short time before the conspiracy was to be carrit-d into 
 execution, and by various other circumstances: so that the 
 conclusion of no trial was ever so satisfactory to all mankind.
 
 80 
 
 is abstractedly and mathematically true in one 
 place, must be so also in another ; and that to 
 assert that Peers and Commoners should have dif- 
 ferent rules of evidence, would be as great an 
 outrage against all science and good sense, as that 
 they should reckon by different rules of arithmetic. 
 
 But something of this kind has been advanced, 
 That ordinary rules may be invariably observed in 
 ordinary cases ; but cases of extraordinary enor- 
 mity of guilt, from their very nature, ought not to 
 be limited and confined by rules which were only 
 intended for common occurrences. Here again 
 I should draw directly the contrary conclusion * ; 
 and should contend, if the law would admit of 
 restriction or relaxation, that the evidence ought 
 to be more strict in proportion to the magnitude 
 of the accusation. In this I am fortified by an 
 authority pregnant with good sense ; though I do 
 not know to whom to ascribe it, having omitted to 
 mark the reference when I extracted it ; but it 
 wants not the sanction of a name. " It is a 
 common but well-founded maxim, that in propor- 
 tion to the greatness of a crime, ought the strength 
 
 of 
 
 * Being obliged to draw a different conclusion from every 
 argument that I have yet heard, I should suspect myself of 
 -f'mdice or perverseness, if I did not find that ~ "'as supported 
 authorities.
 
 81 
 
 of the proof of it to be. The higher a crime is, 
 and the deeper it draws its consequences, so much 
 the clearer and stronger ought the evidence of it 
 ,to be." 
 
 Whatever is more rare and extraordinary, either 1 
 in the actions of mankind or the appearances of 
 nature, will require so much stronger proof to 
 induce us to believe its existence. When an incre- 
 dible story was related at Rome, it was a proverbial 
 saying, " I should not believe it, though Cato should 
 assert it." It requires proof of a higher nature to 
 convince us that a woman of the age of fifty-one, 
 like Lady Jane Douglas, had been delivered of 
 twins, than that such an event had happened to a 
 young woman of the age of twenty-one or thirty- 
 one. 
 
 It perhaps may be observed, that the Peers, 
 from their superior education, might safely be 
 entrusted with evidence which it would be dangerous 
 to relate in the hearing of a jury ; that their 
 enlarged and enlightened minds would more easily 
 discriminate the reality of truth from what bore 
 but the semblance of it. Education, it is true, in 
 this country is regarded as one of the best orna- 
 ments of nobility, and it is one of the first advan- 
 tages of fortune to be able to purchase it in the 
 greatest perfection. But as men of rank and 
 
 G fortune
 
 82 
 
 fortune generally associate with those who are 
 above the temptation of admitting even a thought 
 of fraud and design, they are less experienced in 
 the artifices of the world, and become liable to be 
 imposed upon in proportion to the superior purity 
 and integrity of their characters: 
 
 o j 
 
 " For oft tho' Wisdom wake, Suspicion sleeps 
 At Wisdom's gate, and to Simplicity 
 Resigns her charge ; for goodness thinks no ill, 
 Where no ill seems." MILTON. 
 
 But notwithstanding these benefits from educa- 
 tion and situation in life., yet it must be admitted 
 that the minds of a Peer and a Commoner are 
 formed by the same hand, and constructed of the 
 same materials. In the inferior courts, a prisoner 
 or defendant may object to, or challenge, such a 
 number of the jury, as to be almost secure that he 
 is tried by his peers, who are omni exceptions mc/jores, 
 and who are brought from the neighbourhood, in 
 order that they may be acquainted with the credit 
 and characters of the witnesses. But in the House 
 of Lords no challenge can be admitted ; and every 
 Peer who has not been pronounced non compos 
 mentis under a writ of De idiotd inquirendo, or a 
 commission of lunacy, may decide upon the estate, 
 life, and honour of an English subject. And high 
 and reverend as the law deems the honour of a 
 nobleman, and as far as ambition and human 
 
 passions
 
 83 
 
 passions will admit,, it may be exempt from suspi- 
 cion and reproach ; yet it will scarce be thought 
 scandalum magnatum, if we should suppose that 
 there are few impeachments where the defendant 
 would not wish the absence of many of his judges, 
 or that others might be substituted in their room. 
 In the inferior courts, the law of evidence is the 
 most essential part of that great bulwark of our 
 liberty, the judicium parium, or the trial by jury. 
 Each juryman is solemnly sworn, that he will a 
 true verdict give, and a true deliverance make, 
 according to the evidence. Break down the bar- 
 riers of evidence, and the security of that trial is 
 gone. Though it is a common observation, that 
 the mind of man is fond of authority, yet the 
 Lords will check this propensity in extending the 
 admissibility of evidence, when they consider that 
 they are more particularly the objects of trial in 
 their own court, and that by such extension each 
 might perish by his own law ; or as it has been 
 said of Bills of attainder, that, like Sisyphus's 
 stone, it might roll back upon their own heads. 
 The impeachment of a commoner before the 
 Lords may be considered in the same degree the 
 judicium fiarium, as the trial of a Peer by a jury. 
 The Lords, if not impeached, in all cases of mis- 
 demeanour, as for libels, perjury, &c. must be tried 
 like a commoner before a jury ; and the authorities 
 are strong, that a commoner never can be 
 G 2 impeached
 
 84 
 
 impeached before the House of Lords for any crime 
 higher than a misdemeanour. 
 
 If the House of Lords could deviate from the 
 rules of evidence by a hair's breadth, they might 
 leave them at an infinite distance. There can be 
 no medium. For who shall fix and determine, 
 when they shall decide according to the law, and 
 when by their will and pleasure ? Every thing 
 would be debated and voted ; and what was admitted 
 in the evening might be rejected in the morning. 
 If a father and a son, a Peer and a Commoner, 
 were engaged in the same treason, murder, or 
 capital crime, they would be tried by different 
 proofs, and perhaps meet with different fates. The 
 Lords might even surpass Dionysius in refinement 
 in tyranny, and might condemn to death the wife 
 or the son of a king upon the testimony of a 
 dream. Indeed, one of our Queens, Anna Boleyn, 
 was convicted of high treason, in the Court of the 
 Lord High Steward, upon evidence not much 
 better*. 
 
 Articles 
 
 * One of the charges against this unhappy Queen was, that 
 she had said, " That the King never had had her heart j" a de- 
 claration, if it was made, in which probably there was more 
 truth than discretion : but this was adjudged to be high treason, 
 in slandering her issue, according to an Act of Parliament 
 made a short time before for her honour and protection.
 
 85 
 
 Articles of impeachment were prepared against 
 another of our Queens, Catherine Parr ; but by her 
 dexterity and address she baffled the designs of 
 her enemies. The Law of England has no respect 
 of persons ; and it surely will not deny to a Queen 
 Consort, and the Royal Blood, those blessings of 
 liberty and justice which it secures to the meanest 
 negro servant. If the Peers should disregard the 
 laws of evidence, they might condemn to death upon 
 the testimony of copies of copies of forged and fa- 
 bricated originals, the hearsay of hearsay, the voces 
 ambigiue, the tales of old women, or the prattle of 
 children : they might resort to what has been so 
 eloquently described by a great master ; Sermonem 
 sine ullo certo autore dispersum, cut malignitas ini- 
 tium dederit, incremen^um credulitas, quod nulli non 
 etiam innocentissimo possit accidere fraude inimi- 
 corum falsa vulgantium^ . The sanctuary of the 
 faithful bosom of a wife might be violated, who 
 might be dragged into court, and tortured to 
 disclose the confidential and sacred conversations 
 with her husband. What could prevent them 
 from introducing even the rack itself ? It forms a 
 considerable branch of the Civil Law, and the 
 laws of other nations. There is one ready in the 
 tower ; where, for the glory of our law and country, 
 
 it 
 
 f Quintilian, lib. V. c. 3.
 
 86 
 
 it is exhibited among those monsters which are 
 foreign and unnatural to our climate*. 
 
 They 
 
 * Mr. J. Foster takes notice, that the rack has been men- 
 tioned in the Court of the High Steward ; " For/' says he, 
 " at the trials of the Earls of Essex and Southampton, the 
 Attorney General, Sir Edward Coke, extolleth the great cle- 
 mency of her Majesty towards the conspirators, that none of 
 them were put to the rack or torture ; and acknowledgeth the 
 goodness of God towards her, and his just judgment upon the 
 prisoners, that the truth had been revealed by the witnesses 
 without rack or torture of any of them. A strain of adulation, 
 to say no worse of it, nauseous and sordid, highly unbecoming 
 a gentleman of the Profession, especially one who well knew, 
 and hath informed his readers, that any kind of torture in that 
 case would have been utterly illegal." P. 244. 
 
 But such is the delicacy, or rather justice of our law, that 
 it will not receive a confession which has been obtained either 
 by the torture of hope or fear. The principle is the protection 
 of innocence ; and it arises from an apprehension, that under 
 the influence of promises or threats, a man might be induced 
 to declare himself guilty when he is perfectly innocent. 
 I know no instance by which this can be so aptly illustrated, 
 as a case put by one who was well acquainted with the springs 
 of human nature, and whose mind was not meanly imbued 
 with the principles of the English law. I mean the author of 
 Tom Jones. When poor Partridge was tried before Mr. All- 
 worthy for infidelity to the marriage bed, and a confession was 
 produced against him by his wife, " Partridge still persisted in 
 asserting his innocence ; though he admitted he had made the 
 above-mentioned confession, which he however endeavoured 
 to account for, by protesting he was forced into it by the conti- 
 nued importunity she used, who vowed, that as she was sure of 
 his guilt, she would never leave tormenting him till he had 
 
 owned
 
 87 
 
 They might even adopt that maxim of enthu- 
 siasm, Credo, quia impossible est. If there were 
 no bounds and restraints, a rabble of evidence, of 
 every unprincipled denomination, would rush into 
 the House of Lords, to support such eloquence as 
 perhaps Rome and Athens never heard. 
 
 It is sometimes asked, If the Court of Chancery 
 does not admit different rules of evidence from 
 those which are observed by the courts of law ? 
 Nothing is more erroneous than the general vulgar 
 notion of a court of equity : and it differs from the 
 other courts, as they in a great degree differ from 
 each other, in its fonns and jurisdiction. But the 
 Chancellors of the present time disclaim all dis- 
 cretion : they cannot indulge their own notions of 
 justice and equity, but are as much chained down 
 by maxims, forms, and precedents, as the other 
 Judges in Westminster Hall. And with regard to 
 evidence, we have the authority of Lord Hardwicke, 
 
 " That 
 
 owned it ; and faithfully promised, that, in such case, she would 
 never mention it to him any more. Hence, he said, he had 
 been induced falsely to confess himself guilty, though he was 
 innocent; and that he believed he should have confessed a 
 murder from the same motive." Book II. c. 6. 
 
 And the event of this trial affords a striking instance, and it 
 seems to have been the moral intended by it, where, from not 
 adhering to the legal rules of evidence, an innocent man is 
 condemned to shame and ruin by a righteous judge.
 
 ff That the rules, as to evidence, are the same in 
 equity as at law ; and if A. was not admitted as a 
 witness at the trial there, because materially con- 
 cerned in interest, the same objection will hold 
 against reading his deposition here." And again, 
 " The rules of evidence in this court, as to wit- 
 nesses, are exactly the same as at law*." 
 
 Even in the Court of Star Chamber, the most 
 arbitrary and detestable of all courts, the Judges 
 did not exercise any discretion with respect to 
 evidence ; but the testimony of witnesses was ad- 
 mitted and rejected according to the general law 
 of the land, as it prevailed in the courts of West- 
 minster Hallf. 
 
 Some prosecutions before the Roman Senate, 
 perhaps, may be considered as analogous to im- 
 peachments before our High Court of Parliament : 
 but if we were to examine the accusations pre- 
 ferred before that grave and august assembly, I am 
 inclined to think that we should never find that the 
 prosecutors requested the judges to dispense with 
 the legal proofs, or rules of evidence. At least, for 
 this opinion I have the authority of one learned 
 
 Civilian, 
 
 * 1 Atkyns's Rep. 453, and 2 Ibid. 48. 
 f Vide Hunter's History of the Star Chamber, lately pub- 
 lished in the Collectanea Juridica, No.VI. p. 205.
 
 89 
 
 Civilian, Matthseus, who observes, that Verres 
 quoque quam apertti Siciliam depopulatus fuerit, 
 omnibus notum fuit, lamen et accusator et proba- 
 tiones legitimo constitute judicio exierunt*. And 
 we have the authority of Cicero himself, who 
 concludes his first Actio against Verres, by de- 
 claring, Dicimus Caium Verrem, cum multa libi- 
 dinose, multa crudeliter in cives Romanes atque in 
 Socios, multa in Deos hominesque nefarie fecerit, 
 turn pr&terea quadringenties sestertium ex Sicilid 
 contra leges abstulisse. Hoc testibus, hoc tabulis, 
 privatis publicisque auctoritatibus ita vobis planum 
 Jaciemus, ut hoc statuatis, etiam si spatium ad dicen- 
 dum nostro commodo, vacuosque dies habuissemus, 
 lamen oratione longd nihil opus fuisse. By alluding 
 to the accusation of Verres, it is far from my 
 intention to insinuate either a parallel or a contrast 
 between the Governor of Sicily and the Governor 
 of India. It would ill become me to publish a 
 single reflection either in favour or to the prejudice 
 of any defendant pending a public trial. I appear 
 only as an advocate for the Law of England : 
 and, 1 conceive, I and every Englishman have a 
 right to say, that if either a subject or an alien 
 should come to England with all the guilt of 
 India accumulated upon his head, or concentrated 
 in his heart, he is entitled to the benefit of 
 
 our, 
 * Prolegom. cap, 4.
 
 90 
 
 our laws, and that we ought not to hunt him like 
 a tiger. 
 
 I have now taken notice of every material 
 authority which I have been able to discover, after 
 some degree of diligence, which I felt myself 
 challenged and stimulated to exert, by the attention 
 which was paid to what I advanced upon a former 
 occasion. If there are any authorities upon this 
 question which I have not enumerated, I must 
 take shame to myself, and confess my ignorance ; 
 a confession which I should think less dishonourable 
 than the imputation of wilful concealment from 
 the public. 
 
 All that I have been able to collect I can con- 
 template with satisfaction, and with a confident 
 hope that I shall be acquitted of a reprehensible 
 degree of rashness, for having declared what had 
 been urged respecting the discretion of the House 
 of Lords, a monstrous doctrine : and I trust I may 
 now be permitted to conclude, that it is totally 
 repugnant to that liberty and justice which are 
 secured to us by almost every part of our govern- 
 ment, but more peculiarly by the law of evidence, 
 which I feel myself unequal to describe in such 
 clear and strong language as has been used by 
 Lord Cowper, when he says, " The wisdom and 
 goodness of our laws appear in nothing more 
 
 remarkably,
 
 91 
 
 remarkably, than in the perspicuity, certainty, and 
 clearness of the evidence it requires to fix a crime 
 upon any man, whereby his life, liberty, or his 
 property, can be concerned. Herein we glory and 
 pride ourselves, and are justly the envy of all our 
 neighbour nations. Our law, in such cases, 
 requires evidence so clear and convincing, that 
 every by-stander, the instant he hears it, must be 
 fully satisfied of the truth and certainty of it. It 
 admits of no surmises, innuendoes, forced conse- 
 quences, or harsh constructions, nor any thing else 
 to be offered as evidence, but what is real and sub- 
 stantial, according to the rules of natural justice 
 and equity*." 
 
 * St.Tr. vol. X.52.
 

 
 \ 
 
 OBSERVATIONS upon some QUESTIONS of LAW 
 which have arisen in the House of Lords, 
 pending the Bill of Pains and Penalties 
 against the QUEEN of ENGLAND. 
 
 1 HE preceding Dissertation was written by me 
 more than twenty-eight years ago, and not 
 three words of it have been changed : it cannot 
 therefore be imputed to me that it was composed 
 to serve any purpose in the present times ; and the 
 last page of it was returned by the Printer on the 
 very day that I had read in the Newspapers that a 
 question had been put by the Counsel for the 
 Illustrious Defendant to a witness called by him, 
 which was objected to because it was urged that 
 it was not such a question as the laws of evidence 
 would permit to be put in any Court of Justice. 
 But it was argued by several Peers, that the House 
 of Lords upon this occasion were not bound or 
 fettered by the same laws of evidence which other 
 Courts were bound by ; and that whatever was the 
 opinion of the Judges upon the legality of the 
 question, they were resolved to vote that it should 
 
 be
 
 94 
 
 be put and answered. After the observations con- 
 tained in the last pages of the Dissertation, which 
 neither the Honourable Mr. Burke, who had pro- 
 duced them, nor any other person had attempted to 
 answer, and from the confirmation of the author's 
 approbation of them by twenty-eight years of no 
 inconsiderable attention to such subjects, it may be 
 supposed that I read with some surprise the fol- 
 lowing sentences, attributed to Peers distinguished 
 by the highest reputation, for honour, learning, and 
 talents. 
 
 " Analogies drawn from the practice of Courts 
 of Justice had nothing to do with the present case : 
 those Courts never had to decide such a cause as 
 this, and therefore their Lordships were not tied 
 and fettered by those rules." 
 
 " With regard to fixed rules, circumstances 
 might occur, in which it would be injustice to 
 abide by them." 
 
 " Under all the circumstances of the present 
 case, it was right that the narrow rules of the 
 Courts below should be here extended." 
 
 " On those grounds, whatever the opinion of 
 the learned Judges might be, he thought the usual 
 rules should be enlarged." 
 
 '" To act with a safe conscience, he could not 
 act otherwise than as he had done, and should 
 vote for the question being put." 
 
 The
 
 95 
 
 The Judges were of opinion that the question 
 ought not to be put : but the Peers who had ex- 
 pressed themselves according to the above extracted 
 sentences were not obliged to do what they had 
 declared they had resolved to do, viz. To vote that 
 the question should be put, because the Counsel 
 for the prosecution waved the objection, and con- 
 sented that the question should be put. 
 
 It may, I think, with great propriety be ques- 
 tioned, whether the Judges in any case, either civil or 
 criminal, ought to permit a question to be answered, 
 though by the consent of both parties, which is not 
 a legal question. How is the Judge to make any 
 just or legal observations upon questions which 
 have no legal validity or existence ? and how can 
 the jury return a true verdict according to the 
 evidence, where the evidence is not legal evidence. 
 
 The law of England makes no distinction of 
 persons or parties, plaintiff or defendant, prosecutor 
 or prisoner ; and though a prisoner is permitted to 
 relate whatever he pleases in his defence, yet what- 
 ever he attempts to prove, it must be admitted only 
 according to the strict rules of evidence. There 
 can be no medium, there can be no distinction, 
 between a hair's breadth and an infinite distance. 
 
 Lord Bacon has well described the laws of 
 
 evidence
 
 96 
 
 evidence as the lantern to justice : and it is abso- 
 lutely necessaiy that we should all use the same 
 lantern, and view the objects with the same optics, 
 the same rays of light, or infinite confusion would 
 inevitably be the consequence. 
 
 If some, instead of this lantern, were to use 
 concave mirrors, some convex, some telescopes, 
 microscopes, solar microscopes, or magic lanterns, 
 the same object would to the sight assume an 
 infinity of variations of form ; what is remote would 
 appear close to us, and what within our reach would 
 seem remote ; mites would be magnified to mon- 
 sters, and monsters would be diminished to mites ; 
 beauty would be deformity, and deformity beauty ; 
 in short, every thing would be seen through a false 
 medium, or would be inverted, and turned upside 
 down. 
 
 But though all may admit that the rules of 
 evidence must be invariably the same in all Courts 
 of judicature, both in the highest and in the lowest, 
 yet it has been powerfully contended, by men of 
 great learning and talent, that it is not necessary 
 that there should be a strict observance of them 
 in a Bill of Pains and Penalties. It was argued 
 with great dignity, gravity, and eloquence, in the 
 case of Sir John Fenwick, who was charged with 
 treason, and executed upon a Bill of Attainder in 
 
 the
 
 9? 
 
 the 8th year of the reign of Queen Anne, 1710 ; 
 and afterwards in the Qth of Geo. I. ] 723, in the 
 case of the Bill of Pains and Penalties against 
 Dr. Atterbury, Bishop of Rochester, who was 
 charged with a treasonable correspondence in favour 
 of the Pretender : he, by the Bill, was deprived 
 of his Bishopric, and was banished for life. 
 See the State Trials, and the Journals of each 
 House of Parliament. 
 
 It is remarkable, that each of these Bills was 
 commenced in the House of Commons, and were 
 both supported by those who were the friends and 
 promoters of the Revolution, and who were consi- 
 dered the violent Whigs of the times. The sup- 
 porters of these Bills argued and voted, in majori- 
 ties, that the two Houses of Parliament, when they 
 inflicted punishment by an Act of the Legislature, 
 were not bound by the laws of evidence. In the 
 Bill of Attainder in which Sir John Fenwick was 
 tried for his life, they even admitted the declara- 
 tions or hearsay of the wife against her husband. 
 
 One of the members of the House of Commons, 
 who opposed such evidence justly, though some- 
 what ludicrously, observed, that a departure from 
 the law of evidence must inevitably introduce every 
 species of tiuittle twattle. 
 
 H I have
 
 98 
 
 I have endeavoured to prove, that, in the manifes- 
 tation of guilt or innocence, there never can be a 
 deviation from the established law of evidence, but 
 it must be productive of absurdity and injustice. 
 There is no other law to refer to ; and every one 
 will be left to act upon, or to prove to others, the 
 phantoms of his waking or sleeping imaginations. 
 Every thing may be decided by a majority of 
 dreamers of dreams*. Each might adopt, in sup- 
 port of his vote, 
 
 Sic volo, sic jubeo j stat pro ratione voluntas. 
 
 In Hume's History of England, vol. IV. p. 41 6, 
 we find that St. John, Solicitor General to Charles 
 the First, advanced the following most indecent and 
 revolting sentences in his speech : " That though 
 the testimony against Stratford were not clear, yet, 
 in this way of Bill, private satisfaction to each 
 man's conscience was sufficient, even should no 
 evidence at all be produced ; and that the Earl had 
 no title to plead law, because he had broken the 
 law. It- is true, (added he,) we give law to hares 
 and deer, for they are beasts of chase ; but it was 
 
 never 
 
 * It is very extraordinary, that the perpetrator of a shocking 
 murder in Lancashire was brought to justice a few years ago in 
 consequence of a dream. The dream led to the discovery of 
 the facts sufficient to convict the prisoner, but the dream was 
 not proved or even mentioned in the Court.
 
 99 
 
 never accounted either cruel or unfair to desti'oy 
 foxes or wolves, wherever they can be found ; for 
 they are beasts of prey." 
 
 But what becomes of the law of the poor inno- 
 cent deer, if its enemies fix upon it the dreadful 
 appellation of a wolf ? For the honour of the 
 present times, the Tory doctrine in the time of 
 Charles the First, and the Whig doctrine in the 
 reigns of Queen Anne and George the First, have 
 been banished from the House of Lords ; and 
 nothing has been advanced against the Illustrious 
 Defendant, but what has been well considered by 
 the Judges of the present day, and which, though 
 the Judges may sometimes err, future Judges will, 
 in all probability, approve and adopt, as the 
 established law of England for ages past. 
 
 If the laws of evidence were not strictly adhered 
 to, nothing would be more odious, more repug- 
 nant to wisdom, justice, and liberty, than Bills of 
 Attainder, and Bills of Pains and Penalties. 
 
 Nihil est crudelius, nihil perniciosus, nihil quod 
 minus hcec civitas ferre possit. 
 
 Proscriptionis miserrimum nomen illud, et omnis 
 acerbitas Sullani temporis, quid kabet, quod maxime 
 sit insigne ad memoriam crudelitatis f 
 
 H 2 Opinor,
 
 100 
 
 Opinor, pcenam in cives Romanos sine judicio con- 
 stitutam*. Cic. Orat. pro Domo sua, c. 17- 
 
 Cicero qualifies his condemnation of them by 
 the words sine judicio ; which I think may be cor- 
 rectly rendered, (f A trial by legal evidence." 
 
 Magna Charta, the solid basis of the venerable 
 fabric of the English Constitution, has clearly and 
 strongly provided, that no free Englishman shall be 
 deprived of any right, nisi per legale judicium 
 parium suorum, velper legem terrce. The judgment 
 of, or trial by, equals must be legal ; which it never 
 can be, if it is not the inevitable conclusion from 
 legal evidence. 
 
 Let every Judge have constantly before his 
 eyes, or engraven on his heart, the recommen- 
 dation of the tutor of Cyrus to his Royal pupil : 
 
 */T-I V "- v v ' V V v V 
 
 EsKSlTOt, g(>JJ 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. 
 
 <c This is not a standing order of the House of Lords, but it 
 is adopted as a rule of caution ; and it may be dispensed with, 
 where the circumstances are such that the adultery of the 
 wife can be proved by satisfactory evidence, and where, at the 
 same time, it is impossible for the husband to obtain a verdict in 
 an action at law. 
 
 " It was dispensed with in the case of a naval officer, whose 
 wife had been brought to bed of one child, in his absence 
 upon duty abroad ; and upon his return was far advanced in 
 her pregnancy with a second, and where he could not discover 
 the father. So in another 'case, where a married woman had 
 gone to France, was divorced there, and had married a French- 
 man. 
 
 " It would also be dispensed with, if the adulterer should 
 die before the husband could obtain a verdict." Note ly 
 Mr. Christian. 
 
 I 2
 
 116 
 
 be sued for a restitution of conjugal rights. All 
 that the spiritual courts can grant, is, to free the 
 husband from the intrusion of a woman who has 
 made herself obnoxious to him by criminality*. 
 But a subject cannot have this benefit, if she has 
 the power of recrimination. But recrimination 
 in the case of a King is the greatest of all 
 solecisms in the government of the country. The 
 Sovereign never can be brought to a trial, either by 
 crimination or recrimination. The laws [of all 
 nations exempt the Sovereign from every animad- 
 version in public courts. Even his representative, 
 an ambassador, for wise public reasons, has the 
 same exemption. This never can be suggested 
 without conveying also to the mind an idea of a 
 total subversion of the monarchy, and a dissolution 
 of the government. 
 
 If the Illustrious Defendant should be proved, 
 to the complete satisfaction of both Houses of 
 Parliament, by nothing but legal evidence, that she 
 has had an adulterous intercourse with a foreigner, 
 her menial servant, it may be presumed that every 
 
 serious 
 
 * Milton, a strenuous advocate both for Religious and Civil 
 Liberty, has written largely for the permission of divorce 
 between husbands and wives, where there is real reciprocity of 
 unhappiness or incompatibility of mind and temper. Much of 
 what he advanced is peculiarly applicable to Royal marriages.
 
 117 
 
 serious well-judging person will be of opinion, that 
 the part of the Bill which declares that she shall 
 be divorced from her husband, is the most appro- 
 priate part of it. An adulterous intercourse by a 
 Queen Consort, the King's eldest daughter, and the 
 wife of the King's eldest son, with any man in 
 England, was punishable with death, as high treason, 
 probably for many ages before the 25th Ed. III. 
 It was confined, at that time, to these three females, 
 by that statute ; because, by their misconduct, the 
 legitimate succession to the Crown would be endan- 
 gered, and, by the example of females in their high 
 stations, the moral sentiments and conduct of all 
 other women in the kingdom were likely to be 
 contaminated and corrupted. 
 
 It has become a proverbial saying, repeated with 
 some degree of approbation, that ' Caesar's wife 
 ought not to be suspected.' Clodius, a dissolute 
 Roman youth, was discovered in female attire in 
 the house of Pompeia, Caesar's wife, who was then 
 celebrating the awful and mystic sacrifices of the 
 goddess BonaDea. At the trial of Clodius, <f C&sar 
 negavit se aliquid comperisse. Interrogatus cur 
 igitur repudiasset uxorem : Quoniam, inquit, meos 
 tarn suspicione quam crimine judico carere oportere." 
 SUETON. J. Caesar. 74. That is, " Caesar declared 
 that he had discovered nothing against his wife : 
 but being asked why then he had divorced her, 
 
 he
 
 118 
 
 he said. Because every one connected with me 
 ought to be clear both from guilt and from su- 
 spicion." 
 
 Caesar did not do that act, and assign that reason 
 for it, for his own honour and happiness, but for the 
 honour and happiness of all his subjects ; because 
 Caesar's wife was to be a pattern and example to 
 the wife and daughter of every Roman citizen. 
 
 This might have been done in a country whose 
 Magna Charta was Quod principi placuit, legis 
 vigorem Jiabet ; but the people of England, or their 
 legitimate representatives, will never suffer a Sove- 
 reign of Great Britain to repudiate his wife for 
 suspicion, or for less than the most irrefragable 
 proofs, manifested to all the world, of her criminality, 
 and that also in a country where chastity is pre- 
 eminently denominated the virtue of every female, 
 and where, if that is lost, she is thought to have 
 nothing left worth preserving. 
 
 11 Virtue and Vice had boundaries, in old time, 
 Not to be pass'd j and she that had renounc'd 
 Her sex's honour, was renounc'd herself, 
 ^- By all that priz'd it; not for prudery's sake, 
 But dignity's, resentful of the wrong. 
 'Twas hard, perhaps, one here and there a waif 
 Desirous to return, and not receiv'd ; 
 But 'twas an wholesome rigour in the main, 
 
 And
 
 119 
 
 And taught th' unblemish'd to preserve with care 
 That purity, whose loss is loss of all." 
 
 COWPER'S Task, Book 3. 
 
 If the three illustrious persons, the Queen Con- 
 sort, the King's eldest daughter, or the wife of the 
 King's eldest son, should ever be impeached for 
 that purity not preserved with care, and if every 
 Peer, without exception, should pronounce "guilty 
 upon my honour" it is indisputably true that they 
 could not make a divorce part of their sentence : 
 that must be done by a distinct, independent Act 
 of Parliament. 
 
 But in a Bill of Pains and Penalties, where there 
 is a strict adherence to the law of evidence, that 
 law of evidence which must be observed both in 
 an impeachment and also in an Act of Parliament 
 for a divorce, there seems to be no repugnancy, 
 but a consistency ^nd propriety that a clause for a 
 divorce should be made part of such a Bill. 
 
 Since the introduction of the Bill of Pains and 
 Penalties into the House of Lords, I have fre- 
 quently read, in the Newspapers, that the word 
 Conspiracy has been made use of in the very extra- 
 ordinary papers or speeches ascribed to persons out 
 of the House of Lords, and also that it has been 
 frequently used by very dignified characters within 
 
 the
 
 120 
 
 the House, but with a degree of vagueness and 
 uncertainty which I lamented much to observe,, 
 because it seemed ill calculated to advance the 
 cause of truth and justice. 
 
 Several questions have been put to the Judges, 
 upon the legal evidence, to prove a Conspiracy ; 
 and God forbid that that or any other crime should 
 ever be proved, or attempted to be proved, by any 
 other evidence than that which has been legal 
 evidence for ages past, and will be legal evidence 
 for ages to come, if not constitutionally altered by 
 the united wisdom of the King, Lords, and Com- 
 mons, in Parliament assembled. 
 
 If I were called upon to explain what is a Con- 
 spiracy, to a person with an imperfect knowledge of 
 the law of England, I should say it was a com- 
 bination of two or more to do an illegal action : 
 every conspiracy must be that ; yet every such com- 
 bination is not a conspiracy ; as a combination 
 between two poachers to kill game in a gentleman's 
 preserve in the night time was held by Lord 
 Ellenborough, and the Court of King's Bench, not 
 to be a conspiracy ; because, otherwise, a whole 
 field of hunters, or any two qualified gentlemen 
 coursing or shooting, where they were trespassers, 
 would be guilty of a conspiracy : but a combination 
 
 to
 
 121 
 
 to take away the character of an innocent indivi- 
 dual is a conspiracy of a very nefarious nature 
 indeed. 
 
 The object of the notorious conspiracy of the 
 Cock-Lane Ghost was to induce the public to 
 believe that a particular innocent individual 
 had been guilty of the crime of murder. All who 
 were proved to have been active to produce that 
 u'icked illegal object, were found guilty of a con- 
 spiracy, and received a severe sentence, but not 
 more severe than just, from Lord Mansfield. One 
 man stood in the pillory three times. King v. 
 Parsons, 1 Black. Rep. 392. and Christians Charges, 
 119. 
 
 It has also been held, that if two or more combine 
 to destroy or injure the credit of a banker, they are 
 guilty of a serious conspiracy. Ibid. 118. 
 
 It will therefore follow, that those who join in 
 charging innocent and honourable persons with 
 a conspiracy, are themselves guilty of a con- 
 spiracy, and of a conspiracy of no ordinary 
 magnitude. When the wicked combine, the 
 virtuous and the good must associate ; their union 
 forms the bonds of honourable society, and of every 
 wise and just government. Those who are particu- 
 larly employed in the administration of justice, must 
 
 necessarily
 
 122 
 
 necessarily employ officers and agents under them ; 
 and if any one of them acts wickedly and cor- 
 ruptly, he alone is to be punished for his illegal 
 conduct. 
 
 He who suborns a witness to commit perjury, or 
 who attempts it, or who advises a witness not to 
 appear in a court to give his evidence, is guilty of 
 a high misdemeanour : or he who advises or solicits 
 any one to do this, though the person so solicited 
 resents it as every honest man ought to do, yet 
 the adviser may be punished to the same extent as if 
 his advice had succeeded, or if he had been engaged 
 
 in the foulest conspiracy. 
 
 / 
 
 The Counsel, who are retained for the plaintiff 
 
 1 
 
 or defendant, prosecutor or prisoner, are frequently 
 consulted what legal evidence will be necessary to 
 support their client's case : of course, they will 
 answer, to the best of their judgment, all that can 
 be honourably done according to law: but God for- 
 bid that they should be held to be guilty of a con- 
 spiracy, if it should afterwards be proved, or be 
 attempted to be proved, that some wickedness has 
 been committed in procuring the evidence which 
 they thought necessary ! Or all the justices at a 
 Quarter Sessions (perhaps several of them members 
 of the House of Lords) are not to be held up to 
 infamy, as conspirators, because one constable 
 
 within
 
 123 
 
 within the county, or one justice upon the bench, 
 has been guilty of a misdemeanour in the execution 
 of his office. 
 
 If this were so, every prisoner or defendant might 
 easily get the benefit of such testimony, by either 
 bribing a witness to prove that such an offer had 
 been made by an honest agent or officer, or by bribing 
 an agent or an officer to make such an offer, one 
 who had been honestly employed by others to assist 
 in the advancement of legal justice. 
 
 The evidence in the case of partners in trade, and 
 those who are employed or commissioned to assist in 
 the administration of criminal justice, is quite diffe- 
 rent. In partnerships for civil purposes, by the nature 
 of the contract, each places a confidence in the honesty 
 and judgment of his partner ; and the words and 
 acts of one will bind all the rest. But the law 
 of England, with respect to those who are engaged 
 in the pursuit and administration of justice, has 
 been, and I trust will be, eternally different ; be- 
 cause I hope not only every Lawyer will agree that 
 I have stated the law correctly, but that every man 
 of sense will think it stands to reason, and is con- 
 formable to the principles of universal justice. 
 
 Every friend to his country, and to the correct 
 administration of justice in it, must grieve to have 
 
 seen
 
 seen public attempts to terrify the Lords from the 
 faithful discharge of their duty. If a single vote 
 has been gained by it, the public justice of the 
 nation has, in fact, been perverted : and surely 
 every attempt to influence a court of justice, 
 except by fair proofs and ability in argument, must 
 be equally incorrect and illegal. Whether we 
 make an application to the passions of fear or 
 avarice, the difference consists only in a public 
 robbery or a clandestine fraud. By the first mode, 
 the courage of all is assailed at once : by the 
 second, which never is likely to be successful in the 
 highest court, or in any other court, the virtue of 
 each must be tempted one by one. 
 
 The House of Lords in England is now, and 
 long has been, the most pure, honourable, inde- 
 pendent, learned, wise, venerable, solemn, and 
 august tribunal, which the sun from heaven shines 
 upon. No parallel of their united wisdom and 
 justice, gravity and dignity, can be found in any 
 assemblage of men upon the surface of the earth : 
 and it may ever be confidently expected, that they 
 will also possess the courage to be regardless of all 
 menaces and attempts to intimidate, and will never 
 lose sight of their unerring guide, 
 
 Fiat justitia, mat ccelum j 
 but will, with one undaunted voice and heart, 
 
 pronounce 
 
 Si
 
 125 
 
 Si fractus illabatur orbis, 
 Impavidos ferient ruinse. 
 
 Every one who is a friend also to the government 
 of his country, must view with deep affliction the 
 shocking unconstitutional endeavours to overthrow 
 that government, which our ancestors have never 
 spared their blood to transmit unimpaired to us, 
 and which has hitherto been the admiration and 
 envy of all the rest of the world. The author of 
 these Observations has never yet been the subject 
 of any other Government ; but he is contented ; 
 and is happy to learn, from all his countrymen 
 who have had practical experience abroad, that 
 they have all panted to return to enjoy the bless^ 
 ings of justice and liberty in England. 
 
 Every true Englishman cannot but read with 
 delight what has been written by a foreigner, whojfc 
 the scholars of every country concur is the most 
 profound scholar that ever wrote upon justice and 
 governments. In another publication,* I have said, 
 that he is one, who, from the peculiar nature of 
 his studies, was intimately acquainted with all the 
 best existing Governments in the world, and who 
 had the most correct and perfect knowledge of 
 those rules of justice which secure the liberty and 
 
 promote 
 
 * See Christian's Charges, p. 312.
 
 126 
 
 promote the happiness of mankind ; and in whose 
 writings the learned men of all nations have yet 
 found the least, if any thing, to censure and to 
 blame ; I mean VATTEL, the author of the " Law 
 of Nations :" he has pronounced the following 
 just and beautiful panegyric upon the English 
 Government : 
 
 " That illustrious nation (speaking of England) 
 distinguishes itself in a glorious manner, by its 
 application to every thing that can render the 
 State the most flourishing. An admirable Con- 
 stitution there places every citizen in a situation 
 that enables him to contribute to this great end, 
 and everywhere diffuses a spirit of true patriotism, 
 which is zealously employed for the public welfare* 
 We there see mere citizens form considerable 
 enterprises, in order to promote the glory and 
 welfare of the nation : and while a bad prince 
 would be abridged of his power, a king endowed 
 with wisdom and moderation finds the most pow- 
 erful succours to give success to his great designs. 
 The nobles and the representatives of the people 
 form a band of confidence between the monarch 
 and the nation, and concur with him in every 
 thing that concerns the public welfare ; ease him 
 in part of the burden of government ; confirm his 
 power ; and render him an obedience the more per- 
 fect, as it is voluntary. Every good citizen sees 
 
 that
 
 127 
 
 that the strength of the State is really the welfare 
 of all, and not that of a single person. Happy 
 Constitution ! which they did not suddenly obtain : 
 it has cost rivers of blood ; but they have not pur- 
 chased it too dear. May luxury, that pest so fatal 
 to the manly and patriotic virtues, that minister 
 of corruption so dangerous to liberty, never over- 
 throw a monument that does so much honour to 
 human nature, a monument capable of teaching 
 kings how glorious it is to rule over a free people !" 
 V ATT EL'S Law of Nations , Book I. chap. 2. 
 
 Every good government must consist of an 
 union or association of the wise and good to resist 
 the designs of the ignorant and the wicked ; and 
 they must be supported by power and strength, to 
 carry into effect the decisions of wisdom and jus- 
 tice: but miserable and dreadful must be the 
 consequences, if those who possess the muscular 
 strength of a people are led, by the artifices of 
 designing men, to resist a government cemented by 
 the wisdom and experience of ages. 
 
 How unqualified those are to form a correct 
 judgment of the complicated affairs of every go- 
 vernment whose thoughts must be confined to 
 employments of manual labour, has been admirably 
 described by an author whom divines do not with 
 certainty rank amongst the Inspired Writers ; but 
 
 his
 
 128 
 
 his book contains an infinite fund of wisdom, 
 beautifully expressed ; I mean Jesus the son of 
 Sirach, the author of Ecclesiasticus. Nothing in 
 the whole of the Old Testament can be found more 
 just and satisfactory than the following extract : 
 
 The wisdom of a learned man comet h by opportunity 
 of leisure; and he that hath little business shall 
 become wise. 
 
 How can he get wisdom that holdeth the plough, 
 and that glorieth in the goad; that driveth oxen, 
 and is occupied in their labours, and whose talk is of 
 bullocks ? He giveth his mind to make furrows ; 
 and is diligent to give the kine fodder. 
 
 So every carpenter and work-master, that laboureth 
 
 night and day : and they that cut and grave seals, 
 
 and are diligent to make great variety, and give 
 
 themselves to counterfeit imagery, and watch to 
 
 finish a work. 
 
 The smith also sitting by the anvil, and considering 
 the iron work, the vapour of the fire wasteth his 
 fiesh, and he fighteth with the heat of the furnace : 
 the noise of the hammer and the anvil is ever in his 
 ears, and his eyes look still upon the pattern of the 
 thing that he maheth ; he setteth his mind to finish 
 his work, and watcheth to polish'it perfectly. 
 
 So doth the potter sitting at his work, and turning 
 the wheel about with his feet, who is alway carefully 
 set at his work ; and maheth all his work by number. 
 
 He
 
 129 
 
 He fashioneth the clay with his arm, and boweth 
 down his strength before his feet ; he applieth himself 
 to lead it over ; and he is diligent to make clean the 
 furnace. 
 
 All these trust to their hands ; and every one is 
 wise in his work. 
 
 Without these cannot a city be inhabited: and 
 they shall not dwell where they will, nor go up and 
 down. 
 
 They shall not be sought for in public counsel, 
 nor sit high in the congregation : they shall not sit 
 on the judges' seat, nor understand the sentence of 
 judgment : they cannot declare justice and judgment, 
 and they shall not be found where parables are 
 spoken. But they ivill maintain the state of the 
 world, and all their desire is in the work of their 
 craft. ECCLESIASTICUS, xxxviii. 24 34.
 
 ERRATA. 
 
 P. 30, line 8, after prisonert add witnesses. 
 
 In page 70, the lowest paragraph ought to have been placed at the end 
 of the Note.
 
 SUMMARY OF CONTENTS. 
 
 DISSERTATION first published in 1792, p. 1. 
 
 A monstrous doctrine had been advanced, that the House 
 of Lords was not bound by the Rules of Evidence ob- 
 served by other Courts, 2. 
 
 Mr. Christian was attacked in the House of Commons 
 by the Right Hon. Edmund Burke, for having advanced 
 this. This error of Mr. Burke, Mr. Christian attempted 
 to refute by the Dissertation, 5. 
 
 The study of Mr. Burke's Works recommended to all Stu- 
 dents, 6. 
 
 The observance of Forms essential to the administration of 
 justice. The opinions of Lawyers supported, 8. 
 
 Magna Charta, 9. 
 
 Rights of Man a mischievous expression, 10. 
 
 Vir bonus est quis ? explained, 1 3. 
 
 Sound policy explained; and exemplified by marriage 
 brokage, purchase, of places, gratuitous promises, &c. 14. 
 
 The principle of Moral Justice not understood, even by 
 good scholars, 18. 
 
 The difference of the Koran and the New Testament, 1 9. 
 The principle and object of the Laws of Evidence, 20. 
 One witness sufficient to the conviction of criminals, 21. 
 ' Better that five guilty persons escape, than one innocent 
 person should die,' how far true, 2 1 . 
 
 Two witnesses necessary in High Treason, 22.
 
 132 SUMMARY OF CONTENTS. 
 
 The distinctions in the Civil Law, 23. 
 
 The law acts by general, not partial rules, 25. 
 
 A record of Parliament in 11 Ric. II. in favour of the 
 Civil Law, 26. 
 
 Impeachments may have different forms, but not different 
 laws of evidence, 28. 
 
 Laws of evidence ought to be invariable, 32. 
 Defects in it removed, 33. 
 
 Trials in the High Court of Parliament, and in the Court of 
 the Lord High Steward, 36. 
 
 Cases to prove the laws of evidence the same as in all other 
 Courts, 38. 
 
 The King cannot be a witness in a criminal case, 39. 
 
 When a husband or wife may be a witness against the 
 other, 40. 
 
 When witnesses convicted of felony can be admitted, 41. 
 
 The reason why a man convicted of a clergyable crime 
 cannot be admitted a witness, till he has suffered the 
 punishment, 42. 
 
 The law upon the subject, in cases of petty larceny, 44. 
 
 The hearsay of a witness, of what a deceased person had 
 said, rejected in the impeachment of Lord Macclesfield,46. 
 
 Cases in the Duchess of Kingston's Trial, 47. 
 Every witness in a criminal case must be sworn, 48. 
 Foreigners, according to the customs of their country, 4 9. 
 
 A distinction has been made between Bills of Attainder and 
 Bills of Pains and Penalties, 50. 
 
 But that shewn, in the Additions to the Dissertation, to be 
 without reason, 52. 
 
 This has been satyrized by Swift, 53. 
 
 The law of evidence unextendible and incompressible as 
 adamant, 55. 
 
 Limitation to prosecutions for Treason, 56.
 
 SUMMARY OF CONTENTS. 133 
 
 Evidence in Rapes, 5 7. 
 
 Stronger evidence of a crime committed at a distance, 58. 
 
 Secondary evidence explained, 60. 
 
 Evidence under all circumstances the same, 6 1 . 
 
 Circumstantial evidence considered, 62. 
 
 In some cases, may be stronger than positive evidence, 65. 
 Instances in which both have failed, 65 . 
 Moral probability which good men must act upon, 68. 
 
 Lord Hale recommends that no one should be convicted of 
 Murder, unless the body of the supposed deceased be 
 found, 69. 
 
 Mathematical calculation of the probability of Human 
 Testimony, 70. 
 
 The probability of testimony higher than the proportion of 
 the number of witnesses, 72. 
 
 Hume's argument against Miracles, considered, 72. 
 Negative testimony never totally destroys affirmative testi- 
 mony, 73. 
 
 How affirmation must be totally destroyed, 74. 
 Witnesses, when they are certain, say they believe, 75. 
 Evidentia rei y explained, 76. 
 
 The evidence of an accomplice must be corroborated, 76. 
 Circumstances of corroboration explained, 77- 
 Light circumstances, from their number, have weight, 78. 
 
 What is philosophically true in one court must be also 
 true in another, 80. 
 
 Evidence ought to be more strict in proportion to the 
 magnitude of the crime, ibid. 
 
 Peers not to be entrusted with different evidence from their 
 superiority of education, 81. 
 
 The inconveniences of a departure from the Laws of Evidence 
 stated, 84.
 
 134 SUMMARY OF CONTENTS. 
 
 An account of the Rack used formerly in England to extort 
 confession, 86. 
 
 Why confessions extorted by hope or fear ought not to be 
 received, 86. 
 
 Evidence the same in the Court of Chancery as in the Courts 
 of Law, 88. 
 
 The Roman Senate never departed from legitimate proofs, 8Q. 
 
 Lord Cowper's commendation of the Laws of Evidence in 
 the English Courts, 90. 
 
 OBSERVATIONS upon Questions of Law, which have arisen 
 pending the present Bill of Pains and Penalties, 93. 
 
 Strange propositions by some Peers upon evidence to be 
 
 received, 94. 
 No distinction of parties by the law of England, 95. 
 
 We must all see objects through the same medium, and with 
 the same rays of light, 96. 
 
 The observance of the Laws of Evidence absolutely neces- 
 sary in Bills of Attainder and Bills of Pains and Penal- 
 ties, ibid. 
 
 That the Rules of Evidence should not be observed in a 
 legislative proceeding, has been both a Tory and a Whig 
 doctrine, 97. 
 
 The inconveniences and danger of such a doctrine, 98. 
 
 It has not been admitted in the present trial, 98." 
 
 Cicero's opinion respecting them, 99. 
 
 consistent with Magna Charta, ibid. 
 
 The recommendation of the Tutor of Cyrus to his Royal 
 
 Pupil, 100. 
 An ex-post-facto law explained, 101. 
 
 The crime of High Treason with Royal Females ex- 
 plained, 102,
 
 SUMMARY OF CONTENTS. 135 
 
 The law with respect to a Foreigner explained, 102. 
 
 Crimes may be tried on an Impeachment, which cannot 
 be tried by a Jury. The reason explained, 103. 
 
 A Bill of Pains and Penalties, like the present, more favour- 
 able to the defendant than an Impeachment, 104. 
 
 The differences stated, ibid. 
 
 Jf such a Bill goes to the House of Commons, it is abso- 
 lutely necessary that the Witnesses should be examined 
 upon oath, 105. 
 
 The inability of the House of Commons to examine Witnesses 
 
 upon oath, a great blemish in the Constitution, 105. 
 The reason of the defect explained, 106. 
 
 The King can put an end to a Bill of Pains and Penalties, 
 which he cannot to an Impeachment, 106. 
 
 A delivery of list of witnesses in a prosecution is unknown to 
 
 the Common Law, ibid. 
 
 Particularly inconvenient in the case of foreign wit- 
 nesses, 107. 
 
 Judge Foster's opinion stated, 108. 
 
 The law of calling back a witness explained, 110. 
 
 A husband cannot be a witness for a wife, nor the King for 
 any one, 112. 
 
 How the list of witnesses was given in the Duke of Nor- 
 folk's Divorce Bill, 112. 
 
 What is now required in a private Divorce Bill, 113. 
 What Sir W. Blackstone has said upon Divorces, 114. 
 
 When suits in the spiritual courts and actions are dispensed 
 with, 115. 
 
 Must be dispensed with in the case of the King, 1 1 6. 
 
 Recrimination in the case of the King the greatest 
 solecism, 116. 
 
 Milton has written largely in favour of Divorces, ibid. 
 The clause for the Divorce the best part of the Bill, 117.
 
 136 SUMMARY OF CONTENTS. 
 
 Caesar's wife ought not to be suspected, ibid. 
 
 The reasons for it, 1 18. 
 Quotation from Cowper, ibid. 
 
 There could not have been a Divorce by an Impeach- 
 ment, 1 1 9. 
 
 Conspiracy explained, 120. 
 
 Difference between partners for civil purposes, and persons 
 employed in the execution of justice, 123. 
 
 Menaces to intimidate a Court of Justice, a misdemea- 
 nour, 124. 
 
 The House of Lords the most pure Assembly in the world, 
 
 ibid. 
 The answer they ought to return to threats, ibid. 
 
 Vattel's just and beautiful panegyric upon the English 
 Government, 125. 
 
 Persons employed in manual labour, not competent to de- 
 cide upon justice and government, 127. 
 
 This wonderfully well described by the Author of Ecclesi- 
 siasticus, 128. 
 
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