between examination of witnesses in chief and cross-examination, and
that in general these several parts are properly cast according to the
situation of the parties in the cause; but there neither is nor can be
any precise rule to discriminate the exact bounds between examination
and cross-examination. So as to time there is necessarily some limit,
but a limit hard to fix. The only one which can be fixed with any
tolerable degree of precision is when the judge, after fully hearing all
parties, is to consider of his verdict or his sentence. Whilst the cause
continues under hearing in any shape, or in any stage of the process, it
is the duty of the judge to receive every offer of evidence, apparently
material, suggested to him, though the parties themselves, through
negligence, ignorance, or corrupt collusion, should not bring it
forward. A judge is not placed in that high situation merely as a
passive instrument of parties. He has a duty of his own, independent of
them, and that duty is to investigate the truth. There may be no
prosecutor. In our law a permanent prosecutor is not of necessity. The
Crown prosecutor in criminal cases is a grand jury; and this is
dissolved instantly on its findings and its presentments. But if no
prosecutor appears, (and it has happened more than once,) the court is
obliged through its officer, the clerk of the arraigns, to examine and
cross-examine every witness who presents himself; and the judge is to
see it done effectually, and to act his own part in it,--and this as
long as evidence shall be offered within the time which the mode of
trial will admit.
Your Committee is of opinion, that, if it has happened that witnesses,
or other kinds of evidence, have not been frequently produced after the
closing of the prisoner's defence, or such evidence has not been in
reply given, it has happened from the peculiar nature of our common
judicial proceedings, in which all the matter of evidence must be
presented whilst the bodily force and the memory or other mental
faculties of men can hold out. This does not exceed the compass of one
natural day, or thereabouts: during that short space of time new
evidence very rarely occurs for production by any of the parties;
because the nature of man, joined to the nature of the tribunals, and of
the mode of trial at Common Law, (good and useful on the whole,)
prescribe limits which the mere principles of justice would of
themselves never fix.
But in other courts, such as the Court of Chancery, the Courts of
Admiralty Jurisdiction, (except in prize causes under the act of
Parliament,) and in the Ecclesiastical Courts, wherein the trial is not
by an inclosed jury in those courts, such strait limits are not of
course necessary: the cause is continued by many adjournments; as long
as the trial lasts, new witnesses are examined (even after the regular
stage) for each party, on a special application under the circumstances
to the sound discretion of the court, where the evidence offered is
newly come to the knowledge or power of the party, and appears on the
face of it to be material in the cause. _Even after hearing_, new
witnesses have been examined, or former witnesses reëxamined, not as the
right of the parties, but _ad informandam conscientiam judicis_.[71] All
these things are not unfrequent in some, if not in all of these courts,
and perfectly known to the judges of Westminster Hall; who cannot be
supposed ignorant of the practice of the Court of Chancery, and who sit
to try appeals from the Admiralty and Ecclesiastical Courts as
delegates.
But as criminal prosecutions according to the forms of the Civil and
Canon Law are neither many nor important in any court of this part of
the kingdom, your Committee thinks it right to state the undisputed
principle of the Imperial Law, from the great writer on this subject
before cited by us,--from Carpzovius. He says, "that a doubt has arisen,
whether, evidence being once given in a trial on a public prosecution,
(_in processu inquisitorio_,) and the witnesses being examined, it may
be allowed to form other and new articles and to produce new witnesses."
Your Committee must here observe, that the _processus inquisitorius_ is
that proceeding in which the prosecution is carried on in the name of
the judge acting _ex officio_, from that duty of his office which is
called the _nobile officium judicis_. For the judge under the Imperial
Law possesses both those powers, the inquisitorial and the judicial,
which in the High Court of Parliament are more aptly divided and
exercised by the different Houses; and in this kind of process the House
will see that Carpzovius couples the production of new witnesses and the
forming of new articles (the undoubted privilege of the Commons) as
intimately and necessarily connected. He then proceeds to solve the
doubt. "Certainly," says he, "there are authors who deny, that, after
publication of the depositions, any new witnesses and proofs that can
affect the prisoner ought to be received; which," says he, "is true in a
case where a private prosecutor has intervened, who produces the
witnesses. But if the judge proceeds by way of inquisition _ex officio_,
then, even after the completion of the examination of witnesses against
the prisoner, new witnesses may be received and examined, and, on new
grounds of suspicion arising, new articles may be formed, according to
the common opinion of the doctors; and as it is the most generally
received, so it is most agreeable to reason."[72] And in another
chapter, relative to the ordinary criminal process by a private
prosecutor, he lays it down, on the authority of Angelus, Bartolus, and
others, that, after the right of the party prosecuting is expired, the
judge, taking up the matter _ex officio_, may direct new witnesses and
new proofs, even after publication.[73] Other passages from the same
writer and from others might be added; but your Committee trusts that
what they have produced is sufficient to show the general principles of
the Imperial Criminal Law.
The High Court of Parliament bears in its modes of proceeding a much
greater resemblance to the course of the Court of Chancery, the
Admiralty, and Ecclesiastical Courts, (which are the King's courts too,
and their law the law of the land,) than to those of the Common Law. The
accusation is brought into Parliament, at this very day, by _exhibiting
articles_; which your Committee is informed is the regular mode of
commencing a criminal prosecution, where the office of the judge is
promoted, in the Civil and Canon Law courts of this country. The answer,
again, is usually specific, both to the fact and the law alleged in each
particular article; which is agreeable to the proceeding of the Civil
Law, and not of the Common Law.
Anciently the resemblance was much nearer and stronger. Selden, who was
himself a great ornament of the Common Law, and who was personally
engaged in most of the impeachments of his time, has written expressly
on the judicature in Parliament. In his fourth chapter, intituled, _Of
Witnesses_, he lays down the practice of his time, as well as of ancient
times, with respect to the proof by examination; and it is clearly a
practice more similar to that of the Civil than the Common Law. "The
practice at this day," says he, "is to swear the witnesses in open
House, and then to examine them there, _or at a committee_, either upon
_interrogatories_ agreed upon in the House, or such as the committee in
their discretion shall demand. Thus it was in ancient times, as shall
appear by the precedents, so many as they are, they being very sparing
to record those ceremonies, which I shall briefly recite: I then add
those of later times."
Accordingly, in times so late as those of the trial of Lord
Middlesex,[74] upon an impeachment of the Commons, the whole course of
the proceeding, especially in the mode of adducing the evidence, was in
a manner the same as in the Civil Law: depositions were taken, and
publication regularly passed: and on the trial of Lord Strafford, both
modes pointed out by Selden seem to have been indifferently used.
It follows, therefore, that this high court (bound by none of their
rules) has a liberty to adopt the methods of any of the legal courts of
the kingdom at its discretion; and in _sound_ discretion it ought to
adopt those which bear the nearest resemblance to its own constitution,
to its own procedure, and to its exigencies in the promotion of justice.
There are conveniencies and inconveniencies both in the shorter and the
longer mode of trial. But to bring the methods observed (if such are in
fact observed) in the former, only from necessity, into the latter, by
choice, is to load it with the inconveniency of both, without the
advantages of either. The chief benefit of any process which admits of
adjournments is, that it may afford means of fuller information and more
mature deliberation. If neither of the parties have a strict right to
it, yet the court or the jury, as the case may be, ought to demand it.
Your Committee is of opinion, that all rules relative to laches or
neglects in a party to the suit, which may cause nonsuit on the one hand
or judgment by default in the other, all things which cause the party
_cadere in jure_, ought not to be adhered to in the utmost rigor, even
in civil cases; but still less ought that spirit which takes advantage
of lapses and failures on either part to be suffered to govern in causes
criminal. "Judges ought to _lean_ against every attempt to nonsuit a
plaintiff on objections which have no relation to the real merits. It is
unconscionable in a defendant to take advantage of the _apices
litigandi_: against such objections _every possible presumption ought to
be made which ingenuity can suggest_. How disgraceful would it be to the
administration of justice to allow chicane to obstruct right!"[75] This
observation of Lord Mansfield applies equally to every means by which,
indirectly as well as directly, the cause may fail upon any other
principles than those of its merits. He thinks that all the resources of
ingenuity ought to be employed to baffle chicane, not to support it. The
case in which Lord Mansfield has delivered this sentiment is merely a
civil one. In civil causes of _meum et tuum_, it imports little to the
commonwealth, whether _Titus_ or _Mævius_ profits of a legacy, or
whether _John à Nokes_ or _John à Stiles_ is seized of the manor of
_Dale_. For which reason, in many cases, the private interests of men
are left by courts to suffer by their own neglects and their own want of
vigilance, as their fortunes are permitted to suffer from the same
causes in all the concerns of common life. But in crimes, where the
prosecution is on the part of the public, (as all criminal prosecutions
are, except appeals,) the public prosecutor ought not to be considered
as a plaintiff in a cause of _meum et tuum_; nor the prisoner, in such a
cause, as a common defendant. In such a cause the state itself is highly
concerned in the event: on the other hand, the prisoner may lose life,
which all the wealth and power of all the states in the world cannot
restore to him. Undoubtedly the state ought not to be weighed against
justice; but it would be dreadful indeed, if causes of such importance
should be sacrificed to petty regulations, of mere secondary
convenience, not at all adapted to such concerns, nor even made with a
view to their existence. Your Committee readily adopts the opinion of
the learned Ryder, that it would be better, if there were no such rules,
than that there should be no exceptions to them. Lord Hardwicke declared
very properly, in the case of the Earl of Chesterfield against Sir
Abraham Janssen, "that political arguments, in the fullest sense of the
word, as they concerned the government of a nation, must be, and always
have been, of great weight in the consideration of this court. Though
there be no _dolus malus_ in contracts, with regard to other persons,
yet, if the rest of mankind are concerned as well as the parties, it
may be properly said, it regards the public utility."[76] Lord Hardwicke
laid this down in a cause of _meum et tuum_, between party and party,
where the public was concerned only remotely and in the example,--not,
as in this prosecution, when the political arguments are infinitely
stronger, the crime relating, and in the most eminent degree relating,
to the public.
One case has happened since the time which is limited by the order of
the House for this Report: it is so very important, that we think
ourselves justified in submitting it to the House without delay. Your
Committee, on the supposed rules here alluded to, has been prevented (as
of right) from examining a witness of importance in the case, and one on
whose supposed knowledge of his most hidden transactions the prisoner
had himself, in all stages of this business, as the House well knows,
endeavored to raise presumptions in favor of his cause. Indeed, it was
his principal, if not only justification, as to the _intention_, in many
different acts of corruption charged upon him. The witness to whom we
allude is Mr. Larkins. This witness came from India after your Committee
had closed the evidence of this House in chief, and could not be
produced before the time of the reply. Your Committee was not suffered
to examine him,--not, as they could find, on objections to the
particular question as improper, but upon some or other of the general
grounds (as they believe) on which Mr. Hastings resisted any evidence
from him. The party, after having resisted his production, on the next
sitting day admitted him, and by consent he was examined. Your
Committee entered a protest on the minutes in favor of their right. Your
Committee contended, and do contend, that, by the Law of Parliament,
whilst the trial lasts, they have full right to call new evidence, as
the circumstances may afford and the posture of the cause may demand it.
This right seems to have been asserted by the Managers for the Commons
in the case of Lord Stafford, 32 Charles II.[77] The Managers in that
case claimed it as the right of the Commons to produce witnesses for the
purpose of fortifying their former evidence. Their claim was admitted by
the court. It is an adjudged case in the Law of Parliament. Your
Committee is well aware that the notorious perjury and infamy of the
witnesses in the trial of Lord Stafford has been used to throw a shade
of doubt and suspicion on all that was transacted on that occasion. But
there is no force in such an objection. Your Committee has no concern in
the defence of these witnesses, nor of the Lords who found their verdict
on such testimony, nor of the morality of those who produced it. Much
may be said to palliate errors on the part of the prosecutors and
judges, from the heat of the times, arising from the great interests
then agitated. But it is plain there may be perjury in witnesses, or
even conspiracy unjustly to prosecute, without the least doubt of the
legality and regularity of the proceedings in any part. This is too
obvious and too common to need argument or illustration. The proceeding
in Lord Stafford's case never has, now for an hundred and fourteen
years, either in the warm controversies of parties, or in the cool
disquisitions of lawyers or historians, been questioned. The perjury of
the witnesses has been more doubted at some periods than the regularity
of the process has been at any period. The learned lawyer who led for
the Commons in that impeachment (Serjeant Maynard) had, near forty years
before, taken a forward part in the great cause of the impeachment of
Lord Strafford, and was, perhaps, of all men then in England, the most
conversant in the law and usage of Parliament. Jones was one of the
ablest lawyers of his age. His colleagues were eminent men.
In the trial of Lord Strafford, (which has attracted the attention of
history more than any other, on account of the importance of the cause
itself, the skill and learning of the prosecutors, and the eminent
abilities of the prisoner,) after the prosecutors for the Commons had
gone through their evidence on the articles, after the prisoner had also
made his defence, either upon each severally, or upon each body of
articles as they had been collected into one, and the Managers had in
the same manner replied, when, previous to the general concluding reply
of the prosecutors, the time of the general summing up (or recollection,
as it was called) of the whole evidence on the part of Lord Strafford
arrived, the Managers produced new evidence. Your Committee wishes to
call the particular attention of the House to this case, as the contest
between the parties did very nearly resemble the present, but
principally because the sense of the Lords on the Law of Parliament, in
its proceedings with regard to the reception of evidence, is there
distinctly laid down: so is the report of the Judges, relative to the
usage of the courts below, full of equity and reason, and in perfect
conformity with the right for which we contended in favor of the public,
and in favor of the Court of Peers itself. The matter is as follows.
Your Committee gives it at large.
"After this, the Lord Steward adjourned this House to Westminster Hall;
and the Peers being all set there in their places, the Lord Steward
commanded the Lieutenant of the Tower to bring forth the Earl of
Strafford to the bar; which being done, the Lord Steward signified that
both sides might make a recollection of their evidence, and the Earl of
Strafford to begin first.
"Hereupon Mr. Glynn desired that before the Earl of Strafford 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 Strafford
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 Strafford 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 Strafford 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 Strafford 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 Strafford, 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,[78]
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 such as cannot to be used on Monday,] 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."[79]
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 inferior 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."[80] In this case the offer of new evidence was not during
the trial. The trial was over; 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 favor of the report of the Judges in Lord
Strafford'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.[81] These Justices apparently were of the same opinion on this
point with the Justices who gave their opinion in the case of Lord
Stafford.
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.