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being done, the lord steward signified, that both sides might make a recollection of their evidence, and the Earl of Strafforde to begin first.
“Hereupon Mr. Glynn desired, that before the Earl of Strafforde began, that the Commons might produce two witnesses to the fifteenth and twenty-third articles, to prove that there be two men whose names are Berne ; and so a mistake will be made clear. The Earl of Strafforde desired, that no new witnesses may be admitted against him, unless he might be permitted to produce witnesses on his part likewise ; which the Commons consented to, so the Earl of Strafforde would confine himself to those articles upon which he made reservations; but he not agreeing to that, and the Commons insisting upon it ; The House was adjourned to the usual place above, to consider of it; and after some debate, their lordships thought it fit, That the members of the Commons go on in producing new witnesses, as they shall think fit, to the fifteenth and twenty-third articles ; and that the Earl of Strafforde may presently produce such witnesses as are present; and such as are not, to name them presently, and to proceed on Monday next; and also, if the Commons and Earl of Strafforde will proceed upon any other articles, upon new matter, they are to name the witnesses and articles on both sides presently, and to proceed on Monday next; but both sides may waive it if they will. The lord steward adjourned this House to Westminster Hall; and, being returned thither, signified what the lords had thought fit for the better proceeding in the business. The Earl of Strafforde, upon this, desiring not to be limited to any reservation, but to be at liberty for what articles are convenient for him to fortify with new witnesses; to which the Commons not assenting, and for other scruples which did arise in the case, one of the peers did desire that the House might be adjourned, to consider further of the particulars. Hereupon the lord steward adjourned the House to the usual place above. The lords, being come up into the House, fell into debate of the business; and, for the better informing of their judgments what was the course and common justice of the kingdom, propounded this question
to the judges; Whether it be according to the course of practice, and common justice, before the judges in their several courts, for the prosecutors in behalf of the king, during the time of trial, to produce witnesses to discover the truth, and whether the prisoner may not do the like?
The lord chief justice delivered this, as the unanimous opinions of himself and all the rest of the judges : That, according to the course of practice, and common justice, before them in their several courts, upon trial by jury, as long as the prisoner is at the bar, and the jury not sent away, either side may give their evidence, and examine witnesses to discover truth ; and this is all the opinion as we can give concerning the proceedings before us. Upon some consideration after this the House appointed the Earl of Bath, Earl of South'ton, Earl of Hartford, Earl of Essex, Earl of Bristol, and the Lord Viscount Say et Seale, To draw up some reasons upon which the former order was made ; which being read as followeth, were approved of, as the order of the House : The gentlemen of the House of Commons did declare, that they challenge to themselves, by the common justice of the kingdom, that they, being prosecutors for the king, may bring any new proofs by witnesses during the time of the evidence being not fully concluded, The lords, being judges, and so equal to them and the prisoner, conceived this their desire to be just and reasonable ; and also that, by the same common justice, the prisoner may use the same liberty ; and that, to avoid any occasions of delay, the lords thought fit that the articles and witnesses be presently named, and such as may be presently produced to be used presently; and no further time to be given. The lord steward was to let them know, that if they will on both sides waive the use of new witnesses, they may proceed to the recollection of their evidence on both sides; if both sides will not waive it, then the lord steward is to read the precedent order; and, if they will not proceed then, this House is to adjourn and rise.”
By this it will appear to the House, how much this exclusion of evidence, brought for the discovery of truth, is unsupported either by parliamentary precedent, or by the
rule as understood in the common law courts below; and your committee (protesting however against being bound by any of the technical rules of inferiour courts) thought and think they had a right to see such a body of precedents and arguments for the rejection of evidence during trial, in some court or other, before they were in this matter stopped and concluded.
Your committee has not been able to examine every criminal trial in the voluminous collection of the state trials, or elsewhere ; but having referred to the most laborious compiler of law and equity, Mr. Viner, who has allotted a whole volume to the title of evidence, we find but one ruled case in a trial at common law, before or since, where new evidence for the discovery of truth has been rejected, as not being in due time. “ A privy verdict had been given in B. R. 14 Eliz. for the defendant, but afterwards before the inquest gave their verdict openly, the plaintiff prayed that he might give more evidence to the jury, he having (as it seemed) discovered that the jury had found against him, but the justices would not admit him to do so : but after that Southcote, J. had been in C. B. to ask the opinion of the justices there, they took the verdict.” In this case the offer of new evidence was not during the trial. The trial was
The verdict was actually delivered to the judge. There was also an appearance that the discovery of the actual finding had suggested to the plaintiff the production of new evidence--yet it appeared to the judges so strong a measure to refuse evidence, whilst any, even formal, appearance remained, that the trial was not closed, that they sent a judge from the bench into the Common Pleas to obtain the opinion of their brethren there, before they could venture to take upon them to consider the time for production of evidence as elapsed. The case of refusal, taken with its circumstances, is full as strong an example in favour of the report of the judges in Lord Strafforde's case, as any precedent of admittance can be.
The researches of your committee not having furnished them with any cases in which evidence has been rejected during the trial, as being out of time, we have found some
instances in which it has been actually received ; and received not to repel any new matter in the prisoner's defence—but when the prisoner had called all his witnesses, and thereby closed his defence. A remarkable instance occurred on the trial of Harrison, for the murder of Dr. Clenche. The justices who tried the cause, (viz.) lord chief justice Holt, and the justices Atkins and Nevil, admitted the prosecutor to call new evidence, for no other reason but that a new witness was then come into court, who had not been in court before. These justices apparently were of the same opinion on this point with the justices who gave their opinion in the case of Lord Strafforde. Your committee on this point, as on the former, cannot discover any authority for the decision of the House of Lords in the law of parliament, or in the law practice of any court in this kingdom.
PRACTICE BELOW. Your committee not having learned that the resolutions of the judges (by which the lords bave been guided) were supported by any authority in law to which they could have access, have heard by rumour, that they have been justified upon the practice of the courts, in ordinary trials by commission of oyer and terminer. To give any legal precision to this term of practice, as thus applied, your committee apprehends it must mean—that the judge in those criminal trials has so regularly rejected a certain kind of evidence when offered there, that it is to be regarded in the light of a case frequently determined by legal authority. If such had been discovered, though your committee never could have allowed these precedents as rules for the guidance of the high court of parliament, yet they should not be surprised to see the inferiour judges forming their opinions on their own confined practice. Your committee, in their enquiry, has found comparatively few reports of criminal trials, except the collection under the title of State Trials, a book compiled from materials of very various authority, and in none of those which we have seen is there, as appears to us, a single example of the rejection of evidence, similar to
that rejected by the advice of the judges in the House of Lords. Neither, if such examples did exist, could your committee allow them to apply directly and necessarily as a measure of reason to the proceedings of a court constituted so very differently from those in which the common law is administered. In the trials below, the judges decide on the competency of the evidence before it goes to the jury, and (under the correctives in the use of their discretion stated before in this report) with great propriety and wisdom. Juries are taken promiscuously from the mass of the people; they are composed of men who, in many instances, in most perhaps, never were concerned in any causes, judicially or otherwise, before the time of their service. They have generally no previous preparation or possible knowledge of the matters to be tried, or what is applicable or inapplicable to them; and they decide in a space of time too short for any nice or critical disquisition. The judges, therefore, of necessity, must forestall the evidence where there is a doubt on its competence, and indeed observe much on its credibility, or the most dreadful consequences might follow. The institution of juries, if not thus qualified, could not exist. Lord Mansfield makes the same observation with regard to another corrective of the short mode of trial—that of a new trial.
This is the law, and this its policy. The jury are not to decide on the competency of witnesses, or of any other kind of evidence, in any way whatsoever. Nothing of that kind can coine before them. But the lords in the high court of parliament are not, either actually or virtually, a jury. No legal power is interposed between them and evidence; they are themselves by law fully and exclusively equal to it. They are persons of high rank, generally of the best education, and of sufficient knowledge of the world ; and they are a permanent, a settled, a corporate, and not an occasional and transitory judicature. But it is to be feared, that the authority of the judges in the case of juries legal) may, from that example, weigh with the lords further than its reason, or its applicability to the judicial capacity of the peers can support. It is to be feared, that if the lords should