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though improperly ;) in which case the methods differ from what the law requires in other cases ; for this is never to be a law for any other after-' wards. Methinks this being the state of the case, it quite puts us out of the method of trials, and all the laws that are for limiting rules for evidence, at trials in Westminster Hall and other judicatures: for it must be agreed, the same rules of evidence. must be observed in other places as well as Westminster Hall, I mean Impeachments, and it has. always been so taken*.” Here then is the express authority of a man of learning and talents, and which was not contradicted by any gentleman that: followed him. And it would have been of great importance to those who adopted that side of the debate, to have corrected him with regard to impeachments and cases of judicature; for. if the two Houses of Parliament are not bound by the rules of evidence in judicial proceedings, à mullo fortiori argumento, they would not be bound in their legislative characters t.
I have * Har. St. Tr. vol. IV.310.
+ In this original Dissertation, the object of the author was only to prove that the House of Lords was bound, in cases of judicature, by the same rules of evidence as in the inferior courts.
In the Appendix, I shall endeavour to shew, that when witnesses are examined, in either House, to affect the rights and honour of an individual, the same rules of evidence precisely ought to be observed. . . .
. I have now stated all the authorities which I have met with in the course of this investigation; and I have never any where discovered the least intimation that the House of Lords could deviate from the rules of evidence observed by other courts, . except in an impeachment which perhaps the generality of iny readers will be best acquainted with ; I mean the impeachment of Quinbus Flestrin, the Man Mountain, intended to have been tried in the High Court of Parliament of Lilliput. After an impeachment was resolved upon, and articles drawn up against Quinbus Flestrin, for having extinguished the flames in the Empress's apartment in a manner which, by the laws of Lilliput, amounted to high treason; he was secretly informed of it by one of his party in the Cabinet, who added, “ That his sacred Majesty and Council, who are your judges, were in their own consciences fully convinced of your guilt, which was a sufficient argument to condemn you to death, without the formal proofs required by the strict letter of the law.” Though there can be little doubt but Swift intended this humorous impeachment as a satire upon some of the impeachments which were nuinerous in the reign of Queen Anne, yet I conceive that this part of his wit was unprovoked, and that no thought had ever occurred to the managers of those impeachments to dispense with the formal proofs required by the strict letter of the law. '
But notwithstanding the two Houses of Parliament have deviated from the rules of evidence, in passing Acts to deprive the subject of his life and honour, yet it is now the constant and invariable practice of both Houses of Parliament, in every Divorce and Turnpike Bill, to examine witnesses according to the law of evidence. One of the Counsel for the Bishop of Rochester cites a memorable and noble instance of the Lord Digby, and which clearly proves what evidence he thought ought to be adduced to support an impeachment. I shall repeat the words of the learned gentleman, Mr.Wynne. “Lord Digby had been one of the most violent' managers in the impeachment of the Lord Strafford; and yet, when that proceeding was waved, and a Bill of attainder brought in, he spoke as violently against it. Though he was still of opinion (he said) that that Lord was the same dangerous Minister, and great apostate to the Commonwealth,. who must not expect to be pardoned in this world till he was dispatched to another, yet he had rather lose his hand than put it to that dispatch. He put them in the mind of the difference between prosecutors and judges; and how unbecoming that fervour was in them, now they were judges, which perhaps might be comiendable in them as prosecutors. That when he gave his consent to the accusation, he was assured his crimes would have been fully and legally proved; which if they had, he could have condemned him
with innocency, as he had prosecuted him with earnestness : but as the case then appeared, no man could satisfy his conscience in the doing of it. The Parliament, it is true, had a judicial and legislative capacity: the measure of the one ought to be legally just, the other political and prudential : but these two capacities were not to be confounded in judgment; they were not to piece up (says he) the want of legality by matters of convenience, to the ruin of a man by a law made ex posteriori.”
I think an argument has been urged, from the peculiar circumstances of the present impeachment, which is something of this nature; viz. that where the crimes have been committed at so great a distance from the place of trial, and when so great an interval of time has elapsed, if you should expect the same strict proofs as in ordinary cases, the greatest criminals might escape with impunity. Protesting, as I ever shall, that the laws of evidence are as unextendible and incompressible as adamant; but granting, for the sake of argument, that they could admit of a variation, I should contend, and I trust with success, that, from the reason assigned, the conclusion ought to be directly the reverse ; and that the spirit of both English law and English liberty, under such circumstances, would demand their restriction, rather than their relaxation. For, according to the
principles of our law, caution and scrupulosity, ought to be shewn, in the admission of evidence, in proportion to the difficulty which the defendant has to repel it, if it is fabricated. This is the principle, as I have mentioned before, of all statutes of limitation ; which provide, that after a certain time no evidence whatever shall be admitted to affect the defendant. And the same reason which induced the Legislature to enact, that no subject should be convicted of treason but upon the testimony of two witnesses, induced them also to declare, that no one should be prosecuted for any treason, except for an attempt to assassinate the King, unless he is indicted within three years after the commission of the crime *.
Lord Chief Justice Hale strongly urges attention to this principle in the trial of rapes." It is true," says he, “ rape is a most detestable crime, and therefore ought severely and impartially to be punished with death ; but it must be remeinbered, that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent.
“ I shall never forget a trial before myself of a rape in the County of Sussex,
“ There *7 Will. III. c. 3.