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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 in peachments, as the present ; except
* 5 & 6 Ed. VI. c. 11.
so far as I shall be obliged to take notice of arguments 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 particular reference to what has passed in the present impeachment, it is imputable to accident, and not to designt.
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. Matthæus, a learned
Professor + 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 ; 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 prea 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 presumption 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 causå testes non possit producere ad perpetuam rei memoriam, reus possit probandæ innocentiæ gratia. Secunda, quod crimen uno teste probari non possit, innocentia possit*. Tertia, quod crimen non probetur nisi per testes exceptione majores, innocentia etiam per testes minus idoneos, imò per quamlibet semiplenam probationem. Postremo, inter accusatorem et reum hoc quoque agnoscunt discrimen quod accusatori causâ cognità abolitio concedatur, et venia omittendi accusationem. Reo autem defensionibus suis renunciare non liceat, nec volenti perire concedatur. Matthæus de Criminibus, 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. Quæst. LXV. 5 Reg.
But these distinctions have never been introduced into the Law of England; for, far from shewing any favour to the defendant in the examination 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 prisoner'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 resignation, and he can only hope for relief from the clemency 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 :
* 1 Ann. stat. ii. c. 9.
“ When the loose mountain trembles from on high,
Shall gravitation cease, if you go by ;
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 judicature by those rules of evidence which are adhered to in the other Courts, there is an end of the question; 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 beginning of this Dissertation, I understand the following authority was cited from the Rolls of Parliament:
En ycest parlement, toutz les seigneurs si bien espiritels come temporels alors presentz clamerent come lour Libertée et Franchise, que les grosses matires 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 bas courtes du royalme : quell claym, liberte, et