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They might even adopt that maxim of enthusiasm, Credo, quia impossible est. If there were no bounds and restraints, a rabble of evidence, of every unprincipled denomination, would rush into the House of Lords, to support such eloquence as perhaps Rome and Athens never heard.
It is sometimes asked, If the Court of Chancery does not admit different rules of evidence from those which are observed by the courts of law? „Nothing is more erroneous than the general vulgar notion of a court of equity: and it differs from the other courts, as they in a great degree differ from each other, in its forms and jurisdiction. But the Chancellors of the present time disclaim all discretion : they cannot indulge their own notions of justice and equity, but are as much chained down by maxims, forms, and precedents, as the other Judges in Westminster Hall. And with regard to evidence, we have the authority of Lord Hardwicke,
owned it; and faithfully promised, that, in such case, she would never mention it to him any more. Hence, he said, he had been induced falsely to confess himself guilty, though he was innocent; and that he believed he should have confessed a murder from the same motive.” Book II. c. 6.
And the event of this trial affords a striking instance, and it seems to have been the moral intended by it, where, from not adhering to the legal rules of evidence, an innocent man iş condemned to shame and ruin by a righteous judge.
“That the rules, as to evidence, are the same in equity, as at law; and if A. was not admitted as a witness at the trial there, because materially concerned in interest, the same objection will hold against reading his deposition here.” And again, “ The rules of evidence in this court, as to witnesses, are exactly the same as at law*.”
Even in the Court of Star Chamber, the most arbitrary and detestable of all courts, the Judges did not exercise any discretion with respect to evidence; but the testimony of witnesses was admitted and rejected according to the general law of the land, as it prevailed in the courts of Westminster Hallt.
Some prosecutions before the Roman Senate, perhaps, may be considered as analogous to impeachments before our High Court of Parliament: but if we were to examine the accusations preferred before that grave and august assembly, I am : inclined to think that we should never find that the prosecutors requested the judges to dispense with the legal proofs, or rules of evidence. At least, for. this opinion I have the authority of one learned
* 1 Atkyns's Rep. 453, and 2 Ibid. 48.
+ Vide Hunter's History of the Star Chamber, lately published in the Collectanea Juridica, No.VI. p. 205.
Civilian, Matthæus, who observes, that Verres quoque quam apertè Siciliam depopulatus fuerit, omnibus notum fuit, tamen et accusator et probationes legitimo constituto judicio exierunt*. And we have the authority of Cicero himself, who concludes his first Actio against Verres, by declaring, Dicimus Caium Verrem, cum multa libidinosè, multa crudeliter in cives Romanos atque in Socios, multa in Deos hominesque nefariè fecerit, tum præterea quadringenties sestertium ex Sicilia contra leges abstulisse. Hoc testibus, hoc tabulis, privatis publicisque auctoritatibus ita vobis planum faciemus, ut hoc statuatis, etiam si spatium ad dicendum nostro commodo, vacuosque dies habuissemus, tamen oratione longå nihil opus fuisse. By alluding to the accusation of Verres, it is far from my intention to insinuate either a parallel or a contrast between the Governor of Sicily and the Governor of India. It would ill become me to publish a single reflection either in favour or to the prejudice of any defendant pending a public trial. I appear only as an advocate for the Law of England : and, I conceive, I and every Englishman have a' right to say, that if either a subject or an alien should come to England with all the guilt of India accumulated upon his head, or 'concentrated in his heart, he is entitled to the benefit of
our .: .:* Prolegom. cap. 4.
our laws, and that we ought not to hunt him like a tiger.
I have now taken notice of every material authority which I have been able to discover, after some degree of diligence, which I felt myself challenged and stimulated to exert, by the attention' which was paid to what I advanced upon a former oecasion. If there are any authorities upon this question which I have not enumerated, I must take shame to myself, and confess my ignorance; a confession which I should think less dishonourable than the imputation of wilful concealment from the public.
All that I have been able to collect I can contemplate with satisfaction, and with a confident hope that I shall be acquitted of a reprehensible degree of rashness, for having declared what had been urged respecting the discretion of the House of Lords, a monstrous doctrine : and I trust I may pow be permitted to conclude, that it is totally repugnant to that liberty and justice which are secured to us by almost every part of our government, but more peculiarly by the law of evidence, which I feel myself unequal to describe in such clear and strong language as has been used by Lord Cowper, when he says, “ The wisdom and goodness of our laws appear in nothing more
remarkably, than in the perspicuity, certainty, and clearness of the evidence it requires to fix a crime upon any man, whereby his life, liberty, or his property, can be concerned. Herein we glory and pride ourselves, and are justly the envy of all our neighbour nations. Our law, in such cases, requires evidence so clear and convincing, that every by-stander, the instant he hears it, must be fully satisfied of the truth and certainty of it. It admits of no surmises, innuendoes, forced consequences, or harsh constructions, nor any thing else to be offered as evidence, but what is real and substantial, according to the rules of natural justice and equity *.”
* St. Tr. vol. X.52.