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OBSERVATIONS upon some Questions of Law
which have arisen in the House of Lords, pending the Bill of Pains and Penalties against the Queen of ENGLAND.
The preceding Dissertation was written by me more than twenty-eight years ago, and not three words of it have been changed : it cannot therefore be imputed to me that it was composed to serve any purpose in the present times ; and the last page of it was returned by the Printer on the very day that I had read in the Newspapers that a question had been put by the Counsel for the Illustrious Defendant to a witness called by him, which was objected to because it was urged that it was not such a question as the laws of evidence would permit to be put in any Court of Justice. But it was argued by several Peers, that the House of Lords' upon this occasion were not bound or fettered by the same laws of evidence which other Courts were bound by ;' and that whatever was the opinion of the Judges upon the legality of the question, they were resolved to vote that it should
be put and answered. After the observations contained in the last pages of the Dissertation, which neither the Honourable Mr. Burke, who had produced them, nor any other person had attempted to answer,—and from the confirmation of the author's approbation of them by twenty-eight years of no inconsiderable attention to such subjects,-it may be supposed that I read with some surprise the following sentences, attributed to Peers distinguished by the highest reputation, for honour, learning, and talents.
*“ Analogies drawn from the practice of Courts of Justice had nothing to do with the present case: those Courts never had to decide such a cause as this, and therefore their Lordships were not tied and fettered by those rules.”
« With regard to fixed rules, circumstances might occur, in which it would be injustice to abide by them.”
“ Under all the circumstances of the present case, it was right that the narrow rules of the Courts below should be here extended.”.
Go On those grounds, whatever the opinion of the learned Judges might be, he thought the usual rules should be enlarged.”
.66 To act with a safe conscience, he could not act otherwise than as he had done, and should vote for the question being put."
The The Judges were of opinion that the question ought not to be put: but the Peers who had expressed themselves according to the above extracted sentences were not obliged to do what they had declared they had resolved to do, viz. To vote that the question should be put, because the Counsel for the prosecution waved the objection, and con- sented that the question should be put.. !
It may, I think, with great propriety be questioned, whether the Judges in any case, either civil or criminal, ought to permit a question to be answered, though by the consent of both parties, which is not a legal question. How is the Judge to make any just or legal observations upon questions which have no legal validity or existence ? and how can. the jury return a true verdict according to the evidence, where the evidence is not legal evidence.
The law of England makes no distinction of persons or parties, plaintiff or defendant, prosecutor or prisoner ; and though a prisoner is permitted to relate whatever he pleases in his defence, yet whatever he attempts to prove, it must be admitted only according to the strict rules of evidence. There can be no medium, there can be no distinction, between a hair's breadth and an infinite distance.
Lord Bacon has well described the laws of
evidence as the lantern to justice: and it is absolutely necessary that we should all use the same lantern, and view the objects with the same optics, the same rays of light,-or infinite confusion would inevitably be the consequence.
If some, instead of this lantern, were to use 'concave mirrors, some convex, some telescopes, microscopes, solar microscopes, or magic lanterns, the same object would to the sight assume an infinity of variations of form; what is remote would appear close to us, and what within our reach would seem remote ; mites would be magnified to monsters, and monsters would be diminished to mites; beauty would be deformity, and deformity beauty ; in short, every thing would be seen through a false medium, or would be inverted, and turned upside down.
But though all may admit that the rules of evidence must be invariably the same in all Courts of judicature, both in the highest and in the lowest, yet it has been powerfully contended, by men of great learning and talent, that it is not necessary that there should be a strict observance of them in a Bill of Pains and Penalties. It was argued with great dignity, gravity, and eloquence, in the case of Sir John Fenwick, who was charged with treason, and executed upon a Bill of Attainder in