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fortune generally associate with those who are above the temptation of admitting even a thought of fraud and design, they are less experienced in the artifices of the world, and become liable to be imposed upon in proportion to the superior purity and integrity of their characters:
For oft tho' Wisdom wake, Suspicion sleeps
But notwithstanding these benefits from education and situation in life, yet it must be admitted that the minds of a Peer and a Commoner are formed by the same hand, and constructed of the same materials. In the inferior courts, a prisoner or defendant may object to, or challenge, such a number of the jury, as to be almost secure that he is tried by his peers, who are omni exceptione majores, and who are brought from the neighbourhood, in order that they may be acquainted with the credit and characters of the witnesses. But in the House of Lords no challenge can be admitted ; and every Peer who has not been pronounced non compos 'mentis under a writ of De idiota inquirendo, or a commission of lunacy, may decide upon the estate, life, and honour of an English subject. And high and reverend as the law deems the honour of a nobleman, and as far as ambition and human
passions will admit, it may be exempt from suspicion and reproach ; yet it will scarce be thought scandalum magnatum, if we should suppose that there are few impeachments where the defendant, would not wish the absence of many of his judges, or that others might be substituted in their room. In the inferior courts, the law of evidence is the most essential part of that great bulwark of our liberty, the judicium parium, or the trial by jury. Each juryman is solemnly sworn, that he will a true verdict give, and a true deliverance make, according to the evidence. Break down the barriers of evidence, and the security of that trial is gone. Though it is a common observation, that the mind of man is fond of authority, yet the Lords will check this propensity in extending the admissibility of evidence, when they consider that they are more particularly the objects of trial in their own court, and that by such extension each might perish by his own law; or as it has been said of Bills of attainder, that, like Sisyphus's stone, it might roll back upon their own heads. The impeachment of a commoner before the Lords may be considered in the same degree the judicium parium, as the trial of a Peer by a jury. -The Lords, if not impeached, in all cases of misdemeanour, as for libels, perjury, &c. must be tried like a commoner before a jury; and the authorities are strong, that a commoner never can be
impeached before the House of Lords for any crime higher than a misdemeanour.
. If the House of Lords could deviate from the rules of evidence by a hair's breadth, they might leave them at an infinite distance. There can be no medium. For who shall fix and determine, when they shall decide according to the law, and when by their will and pleasure ? Everything would be debated and voted; and what was admitted in the evening might be rejected in the morning. If a father and a son, a Peer and a Commoner, were engaged in the same treason, murder, or capital crime, they would be tried by different proofs, and perhaps meet with different fates. The Lords might even surpass Dionysius in refinement in tyranny, and might condemn to death the wife or 'the son of a king upon the testimony of a dream. Indeed, one of our Queens, Anna Boleyn, was convicted of high treason, in the Court of the Lord High Steward, upon evidence not much ·better *.
* One of the charges against this unhappy. Queen was, that she had said, " That the King never had had her heart;" a declaration, if it was made, in which probably there was more truth than discretion : but this was adjudged to be high treason, 'in slandering her issue, according to an Act of Parliament made a short time before for her honour and protection.
Articles of impeachment were prepared against : another of our Queens, Catherine Parr; but by her, dexterity and address she baffled the designs of her enemies. The Law of England has no respect of persons; and it surely will not deny to a Queen Consort, and the Royal Blood, those blessings of liberty and justice which it secures to the meanest negro servant. If the Peers should disregard the laws of evidence, they might condemn to death upon the testimony of copies of copies of forged and fabricated originals, the hearsay of hearsay, the voces ambiguæ, the tales of old women, or the prattle of children : they might resort to what has been so eloquently described by a great master; Sermonem sine ullo certo autore dispersum, cui malignitas initium dederit, incrementum credulitas, quod nulli non etiam innocentissimo possit accidere fraude inimicorum falsa vulgantiumt. The sanctuary of the faithful bosom of a wife might be violated, who might be dragged into court, and tortured to disclose the confidential and sacred conversations with her husband. What could prevent them from introducing even the rack itself? It forms a considerable branch of the Civil Law, and the laws of other nations. There is one ready in the tower ; where, for the glory of our law and country,
† Quintilian, lib. V. c. 3.
it is exhibited among those monsters which are foreign and unnatural to our climate *
* Mr. J. Foster takes notice, that 'the rack has been mentioned in the Court of the High Steward ; “ For," says he, “s at the trials of the Earls of Essex and Southampton, the Attorney General, Sir Edward Coke, extolleth the great clemency of her Majesty towards the conspirators, that none of them were put to the rack or torture; and acknowledgeth the goodness of God towards her, and his just judgment upon the prisoners, that the truth had been revealed by the witnesses without rack or torture of any of them. A strain of adulation, to say no worse of it, nauseous and sordid, highly unbecoming a gentleman of the Profession, especially one who well knew, and hath informed his readers, that any kind of torture in that case would have been utterly illegal." P. 244.
But such is the delicacy, or rather justice of our law, that it will not receive a confession which has been obtained either by the torture of hope or fear. The principle is the protection of innocence; and it arises from an apprehension, that under the influence of promises or threats, a man might be induced to declare himself guilty when he is perfectly innocent. I know no instance by which this can be so aptly illustrated, as a case put by one who was well acquainted with the springs of human nature, and whose mind was not meanly imbued with the principles of the English law. I mean the author of "Tom Jones. When poor Partridge was tried before Mr. Allworthy for infidelity to the marriage bed, and a confession was produced against him by his wife, “ Partridge still persisted in asserting his innocence; though he admitted he had made the above-mentioned confession, which he however endeavoured "to account for, by protesting he was forced into it by the continued importunity she used, who'vowed, that as she was sure of his guilt, she would never leave tormenting him till he had