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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 proceeding 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eleventh year were declared null and void ; but the transactions of the twenty-first were, in the first of Henry IV., rescinded and annulled, and those of the eleventh were again revived and re-established.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 Parliamentary authority, let us consider its effect and import. It must be granted, that it signifies that the course or practice of Parliament may be different 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 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 misdemeanours, 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 decided it was not 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 November, was sufficient in an impeachmentt.

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. + Ib. vol. VI. p. 50.

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 principles 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 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, followed the practice of the other courts, in not permitting the prisoners to be sworn.

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The difference between the forms of Parliament and the general law of the land, has been well described 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 defined and limited by the law, so is the evidence, or the demonstration of

the * Har. St. Tr. vol. V. p. 66.

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 samne in all courts. Evidence differs from forin, just as the deinonstrations 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 demonstrations of guilt or innocence, ought to be eternally 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 inuch (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.


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In the Civil Law, the Regulæ, Ampliationes, Limitationes, and Sublimitationes, and the various commentaries upon them, are swelled to dimensions which would far exceed those of all the English Statutes at large put together. Among these may be reckoned, the voluminous and pon


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