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derous treatises of Farinacius de Testibus, Muscardus de Probationibus, and Menochius de Presumptionibus *. They have a great variety of rules, which we have no knowledge of: for example,Regulæ sunt, quod inimicus contra inimicum non admittatur, nec amasius pro amasia ; quod magis credatur testibus senioribus quam junioribus, clericis quam laicis, masculis quam foeminis, virgini quam viduæ, affirmantibus quam negantibus, etiam quod affirmantes sint laici, 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
* The Commentary of Matthæus, in the Chapters de Probationibus, 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 acknowledge that our law of evidence is capable of great improvement. It is only necessary to mention 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 sentence, 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
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 authorities as I have been able to collect, and such arguments 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
court * This was written in the year 1794; and in the year 1813 this objectionable law of evidence was removed ; when it was enacted, by the 53 Geo. III. c. 127, 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 disability.
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 contemptuous 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 pickpocket, or try at Hicks’s Hall a petty assault and battery? But let us not be imposed upon by high
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 conformity. Nor is there any circumstance which can give us more satisfaction and delight, in contemplating the Law of England, than to be convinced 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.
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 proceeding 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