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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 questions 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 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*..
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 f.
The first case that I shall mention, is that of the Earl of Bristol I. On the 6th of February, 1626, 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 :- .
Ist. Whether, in case of treason or felony, the King's testimony is to be admitted or not.
2d. Whe* P. 297. + Harg. St. Tr. vol. I. 351. # Vide Journals of the House of Lords.
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 Parliament 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, preclude all supposition that the House had any discretion with regard to the admissibility of the testimony 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, 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 I.
* Three reasons may be briefly stated. He would be a witness in his own cause ; he would be interested in the forfeitures and fines; and he would be exempt from the penalties of perjury. 2 Hale P. C. 282. + Har. St. Tr. vol. I. 387.
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.
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 manslaughter, in killing the deceased Coote, but who had not been burnt in the hand, nor obtained a pardon under the great seal, though the 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 repugnant to reason and substantial justice. From the rejection of this evidence, the Earl inight 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 distinction 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
* Harg. St. Tr. vol. V. 170.