Chapter 9

"After this, the Lord Steward adjourned this House to Westminster Hall; and the Peers being all set there in their places, the Lord Steward commanded the Lieutenant of the Tower to bring forth the Earl of Strafford to the bar; which being done, the Lord Steward signified that both sides might make a recollection of their evidence, and the Earl of Strafford to begin first.

"Hereupon Mr. Glynn desired that before the Earl of Strafford began, that the Commons might produce two witnesses to the fifteenth and twenty-third articles, to prove that there be two men whose names are Berne; and so a mistake will be made clear. The Earl of Strafford desired that no new witnesses may be admitted against him, unless he might be permitted to produce witnesses on his part likewise; which the Commons consented to, so the Earl of Strafford would confine himself to those articles upon which he made reservations: but he not agreeing to that, and the Commons insisting upon it, the House was adjourned to the usual place above to consider of it; and after some debate, their Lordships thought it fit that the members of the Commons go on in producing new witnesses, as they shall think fit, to the fifteenth and twenty-third articles, and that the Earl of Strafford may presently produce such witnesses as are present, and such as are not, to name them presently, and to proceed on Monday next; and also, if the Commons and Earl of Strafford will proceed upon any other articles, upon new matter, they are to name the witnesses and articles on both sides presently, and to proceed on Monday next: but both sides may waive it, if they will. The Lord Steward adjourned this House to Westminster Hall, and, being returned thither, signified what the Lords had thought fit for the better proceeding in the business. The Earl of Strafford, upon this, desiring not to be limited to any reservation, but to be at liberty for what articles are convenient for him to fortify with new witnesses,[78] to which the Commons not assenting, and for other scruples which did arise in the case, one of the Peers did desire that the House might be adjourned, to consider further of the particulars. Hereupon the Lord Steward adjourned the House to the usual place above.

"The Lords, being come up into the House, fell into debate of the business, and, for the better informing of their judgments what was the course and common justice of the kingdom, propounded this question to the Judges: 'Whether it be according to the course of practice and common justice, before the Judges in their several courts, for the prosecutors in behalf of the King, _during the time of trial, to produce witnesses to discover the truth_, and whether the prisoner may not do the like?' The Lord Chief-Justice delivered this as the unanimous opinions of himself and all the rest of the Judges: 'That, according to the course of practice and common justice, before them in their several courts, upon trial by jury, _as long as the prisoner is at the bar, and the jury not sent away_, either side may give their evidence and examine witnesses to discover truth; and this is all the opinion as we can give concerning the proceedings before us.' Upon, some consideration after this, the House appointed the Earl of Bath, Earl of South'ton, Earl of Hartford, Earl of Essex, Earl of Bristol, and the Lord Viscount Say et Seale to draw up some reasons upon which the former order was made, which, being read as followeth, were approved of, as the order of the House: 'The gentlemen of the House of Commons did declare, that they challenge to themselves, by the common justice of the kingdom, that they, being prosecutors for the King, may bring any new proofs by witnesses during the time of the evidence being not fully concluded. The Lords, being judges, and so equal to them and the prisoner, conceived this their desire to be just and reasonable; and also that, by the same common justice, the prisoner may use the same liberty; and that, to avoid any occasions of delay, the Lords thought fit that the articles and witnesses be presently named, and such as may be presently produced to be used presently, [and such as cannot to be used on Monday,] and no further time to be given.' The Lord Steward was to let them know, that, if they will on both sides waive the use of new witnesses, they may proceed to the recollection of their evidence on both sides; if both sides will not waive it, then the Lord Steward is to read the precedent order; and if they will not proceed then, this House is to adjourn and rise."[79]

By this it will appear to the House how much this exclusion of evidence, _brought for the discovery of truth_, is unsupported either by Parliamentary precedent or by the rule as understood in the Common Law courts below; and your Committee (protesting, however, against being bound by any of the technical rules of inferior courts) thought, and think, they had a right to see such a body of precedents and arguments for the rejection of evidence during trial, in some court or other, before they were in this matter stopped and concluded.

Your Committee has not been able to examine every criminal trial in the voluminous collection of the State Trials, or elsewhere; but having referred to the most laborious compiler of law and equity, Mr. Viner, who has allotted a whole volume to the title of Evidence, we find but one ruled case in a trial at Common Law, before or since, where new evidence for the discovery of truth has been rejected, as not being in due time. "A privy verdict had been given in B. R. 14 Eliz. for the defendant; but afterwards, before the inquest gave their verdict openly, the plaintiff prayed that he might give more evidence to the jury, he having (as it seemed) discovered that the jury had found against him: but the Justices would not admit him to do so; but after that Southcote J. had been in C.B. to ask the opinion of the Justices there, they took the verdict."[80] In this case the offer of new evidence was not during the trial. The trial was over; the verdict was actually delivered to the Judge; there was also an appearance that the discovery of the actual finding had suggested to the plaintiff the production of new evidence. Yet it appeared to the Judges so strong a measure to refuse evidence, whilst any, even formal, appearance remained that the trial was not closed, that they sent a Judge from the bench into the Common Pleas to obtain the opinion of their brethren there, before they could venture to take upon them to consider the time for production of evidence as elapsed. The case of refusal, taken with its circumstances, is full as strong an example in favor of the report of the Judges in Lord Strafford's case as any precedent of admittance can be.

The researches of your Committee not having furnished them with any cases in which evidence has been rejected during the trial, as being out of time, we have found some instances in which it has been actually received,--and received not to repel any new matter in the prisoner's defence, but when the prisoner had called all his witnesses, and thereby closed his defence. A remarkable instance occurred on the trial of Harrison for the murder of Dr. Clenche. The Justices who tried the cause, viz., Lord Chief-Justice Holt, and the Justices Atkins and Nevil, admitted the prosecutor to call new evidence, for no other reason but that a new witness was then come into court, who had not been in court before.[81] These Justices apparently were of the same opinion on this point with the Justices who gave their opinion in the case of Lord Stafford.

Your Committee, on this point, as on the former, cannot discover any authority for the decision of the House of Lords in the Law of Parliament, or in the law practice of any court in this kingdom.

PRACTICE BELOW.

Your Committee, not having learned that the resolutions of the Judges (by which the Lords have been guided) were supported by any authority in law to which they could have access, have heard by rumor that they have been justified upon the practice of the courts in ordinary trials by commission of Oyer and Terminer. To give any legal precision to this term of _practice_, as thus applied, your Committee apprehends it must mean, that the judge in those criminal trials has so regularly rejected a certain kind of evidence, when offered there, that it is to be regarded in the light of a case frequently determined by legal authority. If such had been discovered, though your Committee never could have allowed these precedents as rules for the guidance of the High Court of Parliament, yet they should not be surprised to see the inferior judges forming their opinions on their own confined practice. Your Committee, in their inquiry, has found comparatively few reports of criminal trials, except the collection under the title of "State Trials," a book compiled from materials of very various authority; and in none of those which we have seen is there, as appears to us, a single example of the rejection of evidence similar to that rejected by the advice of the Judges in the House of Lords. Neither, if such examples did exist, could your Committee allow them to apply directly and necessarily, as a measure of reason, to the proceedings of a court constituted so very differently from those in which the Common Law is administered. In the trials below, the Judges decide on the competency of the evidence before it goes to the jury, and (under the correctives, in the use of their discretion, stated before in this Report) with great propriety and wisdom. Juries are taken promiscuously from the mass of the people. They are composed of men who, in many instances, in most perhaps, never were concerned in any causes, judicially or otherwise, before the time of their service. They have generally no previous preparation, or possible knowledge of the matters to be tried, or what is applicable or inapplicable to them; and they decide in a space of time too short for any nice or critical disquisition. The Judges, therefore, of necessity, must forestall the evidence, where there is a doubt on its competence, and indeed observe much on its credibility, or the most dreadful consequences might follow. The institution of juries, if not thus qualified, could not exist. Lord Mansfield makes the same observation with regard to another corrective of the short mode of trial,--that of a _new trial_.

This is the law, and this its policy. The jury are not to decide on the competency of witnesses, or of any other kind of evidence, in any way whatsoever. Nothing of that kind can come before them. But the Lords in the High Court of Parliament are not, either actually or virtually, a jury. No legal power is interposed between them and evidence; they are themselves by law fully and exclusively equal to it. They are persons of high rank, generally of the best education, and of sufficient knowledge of the world; and they are a permanent, a settled, a corporate, and not an occasional and transitory judicature. But it is to be feared that the authority of the Judges (in the case of juries legal) may, from that example, weigh with the Lords further than its reason or its applicability to the judicial capacity of the Peers can support. It is to be feared, that if the Lords should think themselves bound implicitly to submit to this authority, that at length they may come to think themselves to be no better than jurors, and may virtually consent to a partition of that judicature which the law has left to them whole, supreme, uncontrolled, and final.

This final and independent judicature, because it is final and independent, ought to be very cautious with regard to the rejection of evidence. If incompetent evidence is received by them, there is nothing to hinder their judging upon it afterwards according to its value: it may have no weight in their judgment. But if, upon advice of others, they previously reject information necessary to their proper judgment, they have no intermediate means of setting themselves right, and they injure the cause of justice without any remedy. Against errors of juries there is remedy by a new trial. Against errors of judges there is remedy, in civil causes, by demurrer and bills of exceptions; against their final mistake there is remedy by writ of error, in courts of Common Law. In Chancery there is a remedy by appeal. If they wilfully err in the rejection of evidence, there was formerly the terror existing of punishment by impeachment of the Commons. But with regard to the Lords, there is no remedy for error, no punishment for a wilful wrong.

Your Committee conceives it not improbable that this apparently total and unreserved submission of the Lords to the dictates of the judges of the inferior courts (no proper judges, in any light or in any degree, of the Law of Parliament) may be owing to the very few causes of _original_ jurisdiction, and the great multitude of those of _appellate_ jurisdiction, which come before them. In cases of appeal, or of error, (which is in the nature of an appeal,) the court of appeal is obliged to judge, not by _its own_ rules, acting in another capacity, or by those which it shall choose _pro re nata_ to make, but by the rules of the inferior court from whence the appeal comes. For the fault or the mistake of the inferior judge is, that he has not proceeded, as he ought to do, according to the law which he was to administer; and the correction, if such shall take place, is to compel the court from whence the appeal comes to act as originally it ought to have acted, according to law, as the law ought to have been understood and practised in that tribunal. The Lords, in such cases of necessity, judge on the grounds of the law and practice of the courts below; and this they can very rarely learn with precision, but from the body of the Judges. Of course much deference is and ought to be had to their opinions. But by this means a confusion may arise (if not well guarded against) between what they do in their _appellate_ jurisdiction, which is frequent, and what they ought to do in their _original_ jurisdiction, which is rare; and by this the whole original jurisdiction of the Peers, and the whole law and usage of Parliament, at least in their virtue and spirit, may be considerably impaired.

* * * * *

After having thus submitted to the House the general tenor of the proceedings in this trial, your Committee will, with all convenient speed, lay before the House the proceedings on each head of evidence separately which has been rejected; and this they hope will put the House more perfectly in possession of the principal causes of the length of this trial, as well as of the injury which Parliamentary justice may, in their opinion, suffer from those proceedings.

FOOTNOTES:

[1] 4 Inst. p. 4.

[2] Rol. Parl. Vol. III. p. 244, § 7.

[3] 4 Inst. p. 15.

[4] 16 Ch. I. 1640.

[5] Lords' Journals, Vol. IV. p. 133.

[6] Id. Vol. XIX. p. 98.

[7] Lords' Journals, Vol. XIX. p. 116.

[8] Lords' Journals, Vol. XIX. p. 121.

[9] Lords' Journals, Vol. XIX. p. 108.

[10] State Trials, Vol. V.

[11] Statutes at Large, from 12 Ed. I. to 16 and 17 Ch. II.

[12] 7 W. III. ch. 3, sect. 12.

[13] State Trials, Vol. VI. p. 17.

[14] Lords' Journals, Vol. XX. p. 316.

[15] Discourse IV. p. 389.

[16] Parl. Rolls, Vol. II. p. 57. 4 Ed. III. A.D. 1330.

[17] Coke, 4 Inst. p. 3.

[18] State Trials, Vol. II. p. 725. A.D. 1678.

[19] State Trials, Vol. III. p. 212.

[20] State Trials, Vol. V. p. 169.

[21] State Trials, Vol. IV. from p. 538 to 552.

[22] State Trials, Vol. IX. p. 606*. Die Lunæ, 28º Julii 1746

[23] Id., Vol. XI. p. 262.

[24] Kelyng's Reports, p. 54.

[25] Rushworth, Vol. II. pp. 93, 94, 95, 100.

[26] Foster's Crown Law, p. 145.

[27] See the Appendix, No. 1.

[28] Rushworth, Vol. II. p. 475, et passim.

[29] Coke, 4 Inst. p. 5.

[30] This is confined to the judicial opinions in Hampden's case. It does not take in all the extra-judicial opinions.

[31] "_Dissentient._

"1st. Because, by consulting the Judges out of court, in the absence of the parties, and with shut doors, we have deviated from the most approved and almost uninterrupted practice of above a century and a half, and established a precedent not only destructive of the justice due to the parties at our bar, but materially injurious to the rights of the community at large, who in cases of impeachments are more peculiarly interested that all proceedings of this High Court of Parliament should be open and exposed, like all other courts of justice, to public observation and comment, in order that no covert and private practices should defeat the great ends of public justice.

"2dly. Because, from private opinions of the Judges, upon private statements, which the parties have neither heard nor seen, grounds of a decision will be obtained which must inevitably affect the cause at issue at our bar; this mode of proceeding seems to be a violation of the first principle of justice, inasmuch as we thereby force and confine the opinions of the Judges to our private statement; and through the medium of our subsequent decision we transfer the effect of those opinions to the parties, who have been deprived of the right and advantage of being heard by such, private, though unintended, transmutation of the point at issue.

"3dly. Because the prisoners who may hereafter have the misfortune to stand at our bar will be deprived of that consolation which the Lord High Steward Nottingham conveyed to the prisoner, Lord Cornwallis, viz., 'That the Lords have that tender regard of a prisoner at the bar, that they will not suffer a case to be put in his absence, lest it should prejudice him by being wrong stated.'

"4thly. Because unusual mystery and secrecy in our judicial proceedings must tend either to discredit the acquittal of the prisoner, or render the justice of his condemnation doubtful.

"PORCHESTER. SUFFOLK AND BERKSHIRE. LOUGHBOROUGH."

[32] See the Lord High Steward's speech on that head, 1st James II.

[33] All the resolutions of the Judges, to the time of the reference to the Committee, are in the Appendix, No. 2.

[34] Atkyns, Vol. I. p. 445.

[35] Blackstone's Commentaries, Book IV. p. 258.

[36] Lords' Journals, Vol. IV. p. 204. An. 1641. Rush. Trial of Lord Strafford, p. 430.

[37] Lords' Journals, Vol. IV. p. 210.

[38] Id. Vol. XXII. p. 536 to 546. An. 1725.

[39] Lords' Journals, Vol. XXII. p. 541.

[40] Id. Vol. XXVII. p. 63, 65. An. 1746

[41] Gilbert's Law of Evidence, p. 23.

[42] Gravina, 84, 85.

[43] Id. 90 usque ad 100.

[44] Atkyns, Rep. Vol. I p. 37, Omichund _versus_ Barker.

[45] Digest. Lib. XXII. Tit. 5.

[46] Calvinus, voce _Præsumptio_.

[47] Bartolus

[48] Lib. II. Obs. 149, § 9.

[49] Lib. I. Obs. 91, § 7.

[50] Antiqua jurisprudentia aspera quidem illa, tenebricosa, et tristis, non tam in æquitate quam in verborum superstitione fundata, eaque Ciceronis ætatem fere attigit, mansitque annos circiter CCCL. Quæ hanc excepit, viguitque annos fere septuaginta novem, superiori longe humanior; quippe quæ magis utilitate communi, quam potestate verborum, negotia moderaretur.--Gravina, p. 86.

[51] Omichund _v._ Barker, Atk. I.

[52] Gaill, Lib. II. Obs. 20, § 5.

[53] N.B.--In some criminal cases also, though not of treason, husband is admitted to prove an assault upon his wife, for the King, ruled by Raymond, Chief-Justice, Trin. 11th Geo., King _v._ Azire. And for various other exceptions see Buller's Nisi Prius, 286, 287.

[54] Cro. Charl. 365.

[55] Omichund _v._ Barker, 1st Atkyns, ut supra.

[56] Rex _v._ Philips, Burrow, Vol. I. p. 301, 302, 304.

[57] Mayor of Hull _v._ Horner, Cowper's Reports, 109.

[58] Abrahams _v._ Bunn, Burrow, Vol. IV. p. 2254. The whole case well worth reading.

[59] Wyndham _v._ Chetwynd, Burrow, Vol. I. p. 421.

[60] King _v._ Bray.

[61] Wyndham _v._ Chetwynd.

[62] Lowe _v._ Joliffe, 1 Black. J. p. 366.

[63] Burrow, 1147. Zouch, ex dimiss. Woolston, _v._ Woolston.

[64] In this single point Holt did not concur with the rest of the judges.

[65] 1st Siderfin, p. 431.

[66] Interest reipublicæ ut maleficia ne remaneant impunita.

[67] Love's Trial, State Trials, Vol. II. p. 144, 171 to 173, and 177; and Foster's Crown Law, p. 235.

[68] Coppendale _v._ Bridgen, 2 Burrow, 814.

[69] Vide supra.

[70] Girdwood's Case, Leach, p. 128. Gordon's Case, Ibid. p. 245. Lord Preston's Case, St. Tr. IV. p. 439. Layer's Case, St. Tr. VI. p. 279. Foster's Crown Law, p. 198. Canning's Trial, St. Tr. X. p. 263, 270. Trial of the Duchess of Kingston, St. Tr. XI. p. 244. Trial of Huggins, St. Tr. IX. p. 119, 120, 135.

[71] Harrison's Practice of Chancery, Vol. II. p. 46. 1 Ch. Ca. 228. 1 Ch. Ca. 25. Oughton, Tit. 81, 82, 83. Do. Tit. 116. Viner, Tit. Evidence (P. a.).

[72] Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.

[73] Ibid. Quest. CVI. No. 89.

[74] 22 Jac. I. 1624.

[75] Morris _v._ Pugh, Burrow, Vol. III. p. 1243. See also Vol. II. Alder _v._ Chip; Vol. IV. Dickson _v._ Fisher; Grey _v._ Smythyes.--N.B. All from the same judge, and proceeding on the same principles.

[76] Chesterfield _v._ Janssen, Atkyns's Reports, Vol. II.

[77] State Trials, Vol. III. p. 170.

[78] Bis in originali.

[79] Lords' Journals, 17 Ch. I. Die Sabbati, videlicet, 10º die Aprilis.

[80] Dal. 80. Pl. 18. Anno 14 Eliz. apud Viner, Evid. p. 60.

[81] State Trials, Vol. IV. p. 501.

APPENDIX.

No. 1.

IN THE CASE OF EARL FERRERS.

APRIL 17, 1760.

[Foster's Crown Law, p. 188, fol. edit.]

The House of Peers unanimously found Earl Ferrers guilty of the felony and murder whereof he stood indicted, and the Earl being brought to the bar, the High Steward acquainted him therewith; and the House immediately adjourned to the Chamber of Parliament, and, having put the following question to the Judges, adjourned to the next day.

"Supposing a peer, so indicted and convicted, ought by law to receive such judgment as aforesaid, and the day appointed by the judgment for execution should lapse before such execution done, whether a new time may be appointed for the execution, and by whom?"

On the 18th, the House then sitting in the Chamber of Parliament, the Lord Chief Baron, in the absence of the Chief-Justice of the Common Pleas, delivered in writing the opinion of the Judges, which they had agreed on and reduced into form that morning. His Lordship added many weighty reasons in support of the opinion, which he urged with great strength and propriety, and delivered with a becoming dignity.

_To the Second Question._

"Supposing the day appointed by the judgment for execution should lapse before such execution done, (which, however, the law will not presume,) we are all of opinion that a new time may be appointed for the execution, either by the High Court of Parliament, before which such peer shall have been attainted, or by the Court of King's Bench, the Parliament not then sitting: the record of the attainder being properly removed into that court."

The reasons upon which the Judges founded their answer to the question relating to the further proceedings of the House after the High Steward's commission dissolved, which is usually done upon pronouncing judgment, may possibly require some further discussion. I will, therefore, before I conclude, mention those which weighed with me, and, I believe, with many others of the Judges.

_Reasons, &c._