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own act, and what he told him at the time it was doing. Therefore we hope they will not oppose this evidence, which, in the nature of the thing, is all that possibly can be now given.” Lord Trevor rose, and observed, “ If there be a difference in opinion between the noble Lord and the managers, they must withdraw : I will tell my opinion, that such an hearsay evidence is no evidence*.” Upon which it was no longer persisted in. But in this case, where the noble Earl and his Counsel were making experiments, there is not the least intimation that the House of Lords were not bound by the rules of the inferior courts.
In the Duchess of Kingston's trial, upon an indictment before the high court of Parliament,' two points of evidence were determined, and by several learned Lords were argued upon those principles which are common to every court in the kingdom: one was, that a surgeon who obtains any information, even of the most delicate nature, as of the birth of a child in consequence of his profession, has no privilege, but is bound to disclose it in a court of justice : another was, that a noble Lord, to whom the most confidential communications had been made, could not, from any etiquette of honour, or motives of delicacy, be protected from revealing them, as far as was
necessary * Har. St. Tr. 644.
necessary for the purposes of justice. And when the Counsel shewed a willingness not to wound the feelings of the noble Lord, and to wave the testimony, Lord Radnor declared, “ I am afraid your Lordships, by your acquiescence, have admitted a rule of proceeding here, which would not be admitted in any inferior court in the kingdom. I desire therefore to ask the noble Lord, whether he knows any matter of fact relative to that marriage.” Lord Barrington answered, “ My Lords, if I do, I cannot reveal it, nor can I answer the question without betraying private conversation.” But after some debate, that noble Lord was obliged to disclose all the private conversation which he remembered upon the subject *.
It is related of Xenocrates the Athenian, that so high was his character for honour and veracity among his countrymen, that when he was produced as a witness, the judges would not permit him to be sworn: but this is a compliment which cannot be paid by any English court of justicet. Our maxim is, In judicio non nisi juratis creditur. And though the Constitution reposes such confidence in
the * Har. St. Tr. vol. XI. .
+ Athenis aiunt, quum quidam apud eos, qui sanctè graviterque vixisset, jurandi caussâ ad aras accederet, (ut mos Græcorum est,) unâ voce omnes judices ne is juraret reclamasse; quum spectati viri noluerint religione videri potius, quam veritate, fidem esse constrictam.-Cic. Oratio pro Balbo.
the purity and integrity of the Peers, as to permit them to give their verdict upon their honour, yet in their own House, and in every other court, they must give their testimony upon oath. Lord Barrington was sworn in the Duchess of Kingston's trial, and the Bishop of Oxford in Lord Macclesfield's *. . ..
I have * If any Peer should embrace the tenets of the Quakers, it would be very clear, that in no inferior court, in a criminal case, could he be heard upon his honour or affirmation. It has been determined, after much solemn argument, that, though the evidence of an Atheist cannot be received,—as the religious solemnity of an oath can have no obligation upon his mind, yet the evidence upon oath of men of every religion, who believe in a Supreme Being, or a Governor of the Universe, may be received in an English court of justice, and that the oath may be administered according to the ceremonies of their religion. Upon the authority of this decision, I conceive there could be no doubt but the deposition of a Gentoo might be received in the present impeachment. The decision is that of Omychund v. Barker, in 1 Alkyns's Reports, 21; where it appears, that pursuant to an order of the Court of Chancery, of the 4th of Decemler 1739, a commission went to the East Indies; and on the 12th of February 1742, the Commissioners cei tified, that, among other witnesses for the plaintiff, they had examined Ramkissenseat and Ramchurnecooleruge, and several others, subjects of the Great Mogul, being persons who profess the Gentoo religion, and that they were solemnly sworn in the following manner ; viz. “ The several persons being before us, with a Brahmin or Priest of the Gentoo religion, the oath prescribed to be taken by the witnesses was interpreted to each witness respectively; after which they did
severally I have now enumerated all the questions upon évidence which I have found discussed in trials before the House of Lords; and I have stated them, in order to shew that they have been determined upon those general principles of law which prevail in every other court in the kingdom; and that in none of those important cases is there any suggestion that the Peers possessed a discretionary authority with regard to evidence.
In the eighth year of William III. a bill of indictment for high treason was found against Sir John Fenwick : but before he was brought to trial, one of the witnesses, upon whose evidence before the Grand Jury the bill was found, disappeared, so that Sir John Fenwick must necessarily have been acquitted in any court of law. But a Bill of Attainder was passed, in which it was enacted, that Sir John Fenwick should be subject to all the penalties of a conviction in a court of justice, and in
consequence severally with their hands touch the foot of the Brahmin or Priest of the Gentoo religion, being also before us with another Brahmin or Priest of the same religion ; the oath prescribed to be taken by the witnesses was interpreted to him ; after which Neenderam Surmah, being himself a Priest, did touch the hand of the Brahmin, the same being the usual and most solemn form in which oaths are most usually administered to witnesses who profess the Gentoo religion, and the same manner in which oaths are usually administered to such witnesses in the courts of justice, erected by letters-patent of the late King at Calcutta."
consequence of this Act of Parliament he suffered death. In the examination of witnesses before the House of Commons, previous to the passing of the Bill, there was great debate, whether the House was bound by the rules of evidence. The speeches of the principal speakers are preserved in the fourth volume of the State Trials : among these is that of Mr. Methuen, who, I have no doubt, is Paul Methuen, Esq., who was afterwards Queen Anne's ainbassador to Lisbon, and who concluded an important treaty with Portugal; he was also high in office in the next reign of George the First. The speech which is assigned him, proves him to be a man of great abilities, and deserving of the character which is given him in the dedication of the seventh volume of the Spectator.
He distinguishes between Bills of Attainder, and cases of judicature in Parliament, by observing, that “ 'Tis said you are trying of Sir John Fenwick, that you are Judges, and that you are both Judges and jury, and that you are obliged to proceed according to the same rule, though not the methods of Westminster Hall, -secundùm allegata et probata. But the state of the matter, as it appears to me, is, that you are here in your legislative power, making a new law for attainting of Sir John Fenwick, and for exempting his particular case, and for trying of it, (if you will use that word,