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the 8th year of the reign of Queen Anne, 1710; and afterwards in the gth of Geo. I. 1723, in the case of the Bill of Pains and Penalties against Dr. Atterbury, Bishop of Rochester, who was charged with a treasonable correspondence in favour of the Pretender : he, by the Bill, was deprived of his Bishopric, 'and was banished for life.See the State Trials, and the Journals of each House of Parliament.
It is remarkable, that each of these Bills was commenced in the House of Commons, and were both supported by those who were the friends and promoters of the Revolution, and who were considered the violent Whigs of the times. The supporters of these Bills argued and voted, in majorities, that the two Houses of Parliament, when they inflicted punishment by an Act of the Legislature, were not bound by the laws of evidence. In the Bill of Attainder in which Sir John Fenwick was tried for his life, they even admitted the declarations or hearsay of the wife against her husband.
One of the members of the House of Commons, who opposed such evidence justly, though somewhat ludicrously, observed, that a departure from the law of evidence must inevitably introduce every species of twittle twattle. . H
I have endeavoured to prove, that, in the manifestation of guilt or innocence, there never can be a deviation from the established law of evidence, but it must be productive of absurdity and injustice. There is no other law to refer to; and every one will be left to act upon, or to prove to others, the phantoms of his waking or sleeping imaginations. Every thing may be decided by a majority of dreamers of dreams *. Each might adopt, in support of his vote,
Sic volo, sic jubeo ; stat pro ratione voluntas.
· In Hume's History of England, vol. IV. p. 416, we find that St. John, Solicitor General to Charles the First, advanced the following most indecent and revolting sentences in his speech : “ That though the testimony against Strafford were not clear, yet, in this way of Bill, private satisfaction to each man's conscience was sufficient, even should no evidence at all be produced ; and that the Earl had no title to plead law, because he had broken the law. It is true, (added he,) we give law to hares and deer, for they are beasts of chase; but it was never accounted either cruel or unfair to destroy foxes or wolves, wherever they can be found ; for they are beasts of prey.”
* It is very extraordinary, that the perpetrator of a shocking murder in Lancashire was brought to justice a few years ago in consequence of a dream. The dream led to the discovery of the facts sufficient to convict the prisoner, but the dream was not proved or even mentioned in the Court.
But what becomes of the law of the poor inno cent deer, if its enemies fix' upon it the dreadful appellation of a wolf ? For the honour of the present times, the Tory doctrine in the time of Charles the First, and the Whig doctrine in the reigns of Queen Anne and George the First, have been banished from the House of Lords; and nothing has been advanced against the Illustrious Defendant, but what has been well considered by the Judges of the present day, and which, though the Judges may sometimes err, future Judges will, in all probability, approve and adopt, as the established law of England for ages past.
If the laws of evidence were not strictly adhered to, nothing would be more odious, more repugnant to wisdom, justice, and liberty, than Bills of Attainder, and Bills of Pains and Penalties.
· Nihil est crudelius, nihil perniciosus, nihil quod minùs hæc civitas ferre possit.
Proscriptionis miserrimum nomen illud, et omnis acerbitas Sullani temporis, quid habet, quod maxime sit insigne ad memoriam crudelitatis ?
• Opinor, poenam in cives Romanos sine judicio constitutam *. Cic. Orat. pro Domo suâ, c. 17.
Cicero qualifies his condemnation of them by the words sine judicio; which I think may be correctly rendered, “ A trial by legal evidence."
• Magna Charta, the solid basis of the venerable fabric of the English Constitution, has clearly and strongly provided, that no free Englishman shall be deprived of any right, nisi per legale judicium parium suorum, vel per legem terræ. The judgment of, or trial by, equals must be legal ; which it never can be, if it is not the inevitable conclusion from legal evidence.
Let every Judge have constantly before his eyes, or engraven on his heart, the recommendation of the tutor of Cyrus to his Royal pupil : "Έπειτα δε έφη το μεν νόμιμον, δίκαιον είναι το δε άνομον, βίαιον. Συν τω νόμω ούν εκέλευε δείν τον dirastno año tñpov sideoloo. “ That which is
conformable : * It perhaps may be thus translated :
“ There is nothing more cruel, more pernicious, nothing that this country is less able to bear.
" What can be found in that most miserable word Proscription, or in all the severity of the time of Sylla, which will be most extraordinary in the history of cruelty ?
"I am of opinion, a punishment inflicted upon Roman Citizens by name without a trial.”
conformable to law, is justice ; and that which is contrary to law, is force and violence. He therefore recommended that every Judge should decide according to the law.”
But it will be asked, Is not this an ex-post-facto law ? That is a law, which is made to punish an action which was innocent at the time it was done, as if it had been a legal crime at that time; as if a law were made this winter to punish severely every one who had killed a butterfly, or a swallow, in the last summer.
Let us consider the nature of the crime with which the Illustrious Defendant is now charged.
The celebrated statute, the 25th Ed. III. c. 2, which, for the security of the people of England, declared what actions should be high treason, and that the Judges should adjudge no other action but those specified in that statute to be treason in future, has declared, that “ if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir, he shall be guilty of high treason.”
The statute has not explained what crime these three female subjects shall be guilty of, if they