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· It is obvious, that it might be highly inconvenient to give a list of foreign witnesses before they arrived in England; for however they might be prevailed upon to come by honest and legal means, by assurances of protection and indemnification, it is very clear that they would be prevailed upon by a much less inducement to stay at home: and even if they yielded to dishonest practices, it is probable that they would be free from all animadversion for it in their own country.
. But it is indisputable, that the law of England, before the time of Queen Anne, compelled a prosecutor in no case whatever to disclose the names of the witnesses to a defendant, except as far as the prisoner incidentally learnt them by their being sworn before a magistrate or a grand jury; and even in these cases, a prosecutor is not obliged to call these witnesses, but may call any other witnesses to prove his case.
But in the case of high treason by the 7th Anne, c. 21, it was enacted, that a list of the witnesses should be delivered.
I shall conclude this subject by transcribing what that great Judge, and sincere friend to the liberty of the subject, (Sir M. Foster,) has said upon it, and which some, perhaps, will think not inapplicable to the present time.
" I will now consider the clauses in the 7th of Queen Anne, which I before hinted at. The 11th section of that Act provideth, “That when any person is indicted for high treason or misprision of treason, a list of the witnesses that shall be produced at the trial for proving the said indictment, and of the jury, mentioning the names, profession, and place of abode of the said witnesses and ‘jurors, shall be given at the same time that the . copy of the indictment is delivered to the party 'indicted; and that copies of all indictments for the offences aforesaid, with such lists, shall be delivered ten days before the trial, and in the presence of two or more credible witnesses.'
“ The furnishing the prisoner with the names, professions, and places of abode of the witnesses and jury, so long before the trial, may serve many bad purposes, which are too obvious to be mentioned. One good purpose, and but one, it may serve. It giveth the prisoner an opportunity of informing himself of the character of the witnesses and jury. But this single advantage will weigh very little in the scale of justice or sound policy, against the many bad ends which may be answered
by it. However, if it weigheth any thing in the scale of justice, the Crown is entitled to the same opportunity of sifting the character of the prisoner's witnesses..
“Equal justice is certainly due to the Crown and the public. For let it be remembered, that the public is deeply interested in every prosecution of this kind that is well founded. Or shall we presume that all the management, all the practising upon the hopes or fears of witnesses, lieth on one side. It is true, power is on the side of the Crown. May it, for the sake of the Constitutional rights of the subject, always remain where the wisdom of the law hath placed it! But in a Government like ours, and in a most changeable climate, power, if, in criminal prosecutions, it be but suspected to aim at oppression, generally disarmeth itself. It raiseth and giveth countenance to a spirit of opposition, which, falling in with the pride or weakness of some, the false patriotism of others, and the sympathy of all, not to mention private attachments and party connexions, generally turns the scale to the favourable side, and frequently against the justice of the case.”
Every question which could admit of any reasonable doubt, whether it was conformable or not to the laws of evidence, has been referred to
the Judges : but there was one proposition, whichi surely no Lawyer could think admitted of a doubt, yet, without referring it to the Judges, was decided in favour of the Defendant; viz. That her Counsel should have the liberty of calling back any witness for the prosecution, whose examination was closed by cross-examination and re-examination. That was not referred to the Judges : and I observed that the Lord Chancellor, and Lord Redesdale, who has been a Chancellor, voted in a minority against the permission.
I conceive the universal practice, long firmly established in all the courts, from the Court of the Lord High Steward to the Quarter Sessions, is this, viz. That after the cross-examination, and re-examination upon that, neither side can call back a witness. But the Judge or the Court may call back a witness, to ask him a question ; and that question, I should think, ought to be confined to one that is connected with his former evidence, and which is agreeable also to the law of evidence. The Counsel on either side may suggest such a question to the Judge or the Court ; and if the Court think it will assist in promoting justice according to law, it then will adopt it, as a question originating from itself. A power beyond that might be greatly abused, either by one side or the other, or by both, more particularly in a long trial :
for the most honest and honourable witness, any Peer of the House of Lords, might be called back, and asked, If he did not make declarations to a certain effect in the Pump Room at Bath, in the hearing of John Smith and William Thompson in particular : though he should deny that he ever made such declarations to them or to any one, either there or elsewhere, and he should positively swear that he never was in the Pump Room at Bath, or in any other room there, yet John Smith and William Thompson may be called to prove what he denies ; and thus the most honourable witness, a Prince of the Blood Royal, might be discredited ; his country, or the cause, may lose the benefit of his testimony; and he himself be subject to all the infamy and punishment of perjury by two men who have been actually guilty of it. These are some of the inconveniences of a departure from those laws which have long been established by the wisdom of our ancestors. The law knows no difference, whether the defendant is the wife of a King, or the wife of the lowest of his subjects.
. In the observance of general rules, there may be cases of hardship: the King cannot be a witness for his own daughter, or for the daughter of any other man; so neither he nor any man can ever be witness for or against his own wife. So if the wife of the eldest son of the King, in a trial for her life,