(by which the Lords have been guided) were supported by any authority in
law to which they could have access, have heard by rumor 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
inferior judges forming their opinions on their own confined practice.
Your Committee, in their inquiry, 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 come 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 think themselves bound implicitly
to submit to this authority, that at length they may come to think
themselves to be no better than jurors, and may virtually consent to a
partition of that judicature which the law has left to them whole,
supreme, uncontrolled, and final.
This final and independent judicature, because it is final and
independent, ought to be very cautious with regard to the rejection of
evidence. If incompetent evidence is received by them, there is nothing
to hinder their judging upon it afterwards according to its value: it
may have no weight in their judgment. But if, upon advice of others,
they previously reject information necessary to their proper judgment,
they have no intermediate means of setting themselves right, and they
injure the cause of justice without any remedy. Against errors of juries
there is remedy by a new trial. Against errors of judges there is
remedy, in civil causes, by demurrer and bills of exceptions; against
their final mistake there is remedy by writ of error, in courts of
Common Law. In Chancery there is a remedy by appeal. If they wilfully
err in the rejection of evidence, there was formerly the terror existing
of punishment by impeachment of the Commons. But with regard to the
Lords, there is no remedy for error, no punishment for a wilful wrong.
Your Committee conceives it not improbable that this apparently total
and unreserved submission of the Lords to the dictates of the judges of
the inferior courts (no proper judges, in any light or in any degree, of
the Law of Parliament) may be owing to the very few causes of _original_
jurisdiction, and the great multitude of those of _appellate_
jurisdiction, which come before them. In cases of appeal, or of error,
(which is in the nature of an appeal,) the court of appeal is obliged to
judge, not by _its own_ rules, acting in another capacity, or by those
which it shall choose _pro re nata_ to make, but by the rules of the
inferior court from whence the appeal comes. For the fault or the
mistake of the inferior judge is, that he has not proceeded, as he ought
to do, according to the law which he was to administer; and the
correction, if such shall take place, is to compel the court from
whence the appeal comes to act as originally it ought to have acted,
according to law, as the law ought to have been understood and practised
in that tribunal. The Lords, in such cases of necessity, judge on the
grounds of the law and practice of the courts below; and this they can
very rarely learn with precision, but from the body of the Judges. Of
course much deference is and ought to be had to their opinions. But by
this means a confusion may arise (if not well guarded against) between
what they do in their _appellate_ jurisdiction, which is frequent, and
what they ought to do in their _original_ jurisdiction, which is rare;
and by this the whole original jurisdiction of the Peers, and the whole
law and usage of Parliament, at least in their virtue and spirit, may be
considerably impaired.
* * * * *
After having thus submitted to the House the general tenor of the
proceedings in this trial, your Committee will, with all convenient
speed, lay before the House the proceedings on each head of evidence
separately which has been rejected; and this they hope will put the
House more perfectly in possession of the principal causes of the length
of this trial, as well as of the injury which Parliamentary justice may,
in their opinion, suffer from those proceedings.
FOOTNOTES:
[1] 4 Inst. p. 4.
[2] Rol. Parl. Vol. III. p. 244, § 7.
[3] 4 Inst. p. 15.
[4] 16 Ch. I. 1640.
[5] Lords' Journals, Vol. IV. p. 133.
[6] Id. Vol. XIX. p. 98.
[7] Lords' Journals, Vol. XIX. p. 116.
[8] Lords' Journals, Vol. XIX. p. 121.
[9] Lords' Journals, Vol. XIX. p. 108.
[10] State Trials, Vol. V.
[11] Statutes at Large, from 12 Ed. I. to 16 and 17 Ch. II.
[12] 7 W. III. ch. 3, sect. 12.
[13] State Trials, Vol. VI. p. 17.
[14] Lords' Journals, Vol. XX. p. 316.
[15] Discourse IV. p. 389.
[16] Parl. Rolls, Vol. II. p. 57. 4 Ed. III. A.D. 1330.
[17] Coke, 4 Inst. p. 3.
[18] State Trials, Vol. II. p. 725. A.D. 1678.
[19] State Trials, Vol. III. p. 212.
[20] State Trials, Vol. V. p. 169.
[21] State Trials, Vol. IV. from p. 538 to 552.
[22] State Trials, Vol. IX. p. 606*. Die Lunæ, 28º Julii 1746
[23] Id., Vol. XI. p. 262.
[24] Kelyng's Reports, p. 54.
[25] Rushworth, Vol. II. pp. 93, 94, 95, 100.
[26] Foster's Crown Law, p. 145.
[27] See the Appendix, No. 1.
[28] Rushworth, Vol. II. p. 475, et passim.
[29] Coke, 4 Inst. p. 5.
[30] This is confined to the judicial opinions in Hampden's case. It
does not take in all the extra-judicial opinions.
[31] "_Dissentient._
"1st. Because, by consulting the Judges out of court, in the absence of
the parties, and with shut doors, we have deviated from the most
approved and almost uninterrupted practice of above a century and a
half, and established a precedent not only destructive of the justice
due to the parties at our bar, but materially injurious to the rights of
the community at large, who in cases of impeachments are more peculiarly
interested that all proceedings of this High Court of Parliament should
be open and exposed, like all other courts of justice, to public
observation and comment, in order that no covert and private practices
should defeat the great ends of public justice.
"2dly. Because, from private opinions of the Judges, upon private
statements, which the parties have neither heard nor seen, grounds of a
decision will be obtained which must inevitably affect the cause at
issue at our bar; this mode of proceeding seems to be a violation of the
first principle of justice, inasmuch as we thereby force and confine the
opinions of the Judges to our private statement; and through the medium
of our subsequent decision we transfer the effect of those opinions to
the parties, who have been deprived of the right and advantage of being
heard by such, private, though unintended, transmutation of the point at
issue.
"3dly. Because the prisoners who may hereafter have the misfortune to
stand at our bar will be deprived of that consolation which the Lord
High Steward Nottingham conveyed to the prisoner, Lord Cornwallis, viz.,
'That the Lords have that tender regard of a prisoner at the bar, that
they will not suffer a case to be put in his absence, lest it should
prejudice him by being wrong stated.'
"4thly. Because unusual mystery and secrecy in our judicial proceedings
must tend either to discredit the acquittal of the prisoner, or render
the justice of his condemnation doubtful.
"PORCHESTER. SUFFOLK AND BERKSHIRE. LOUGHBOROUGH."
[32] See the Lord High Steward's speech on that head, 1st James II.
[33] All the resolutions of the Judges, to the time of the reference to
the Committee, are in the Appendix, No. 2.
[34] Atkyns, Vol. I. p. 445.
[35] Blackstone's Commentaries, Book IV. p. 258.
[36] Lords' Journals, Vol. IV. p. 204. An. 1641. Rush. Trial of Lord
Strafford, p. 430.
[37] Lords' Journals, Vol. IV. p. 210.
[38] Id. Vol. XXII. p. 536 to 546. An. 1725.
[39] Lords' Journals, Vol. XXII. p. 541.
[40] Id. Vol. XXVII. p. 63, 65. An. 1746
[41] Gilbert's Law of Evidence, p. 23.
[42] Gravina, 84, 85.
[43] Id. 90 usque ad 100.
[44] Atkyns, Rep. Vol. I p. 37, Omichund _versus_ Barker.
[45] Digest. Lib. XXII. Tit. 5.
[46] Calvinus, voce _Præsumptio_.
[47] Bartolus
[48] Lib. II. Obs. 149, § 9.
[49] Lib. I. Obs. 91, § 7.
[50] Antiqua jurisprudentia aspera quidem illa, tenebricosa, et tristis,
non tam in æquitate quam in verborum superstitione fundata, eaque
Ciceronis ætatem fere attigit, mansitque annos circiter CCCL. Quæ hanc
excepit, viguitque annos fere septuaginta novem, superiori longe
humanior; quippe quæ magis utilitate communi, quam potestate verborum,
negotia moderaretur.--Gravina, p. 86.
[51] Omichund _v._ Barker, Atk. I.
[52] Gaill, Lib. II. Obs. 20, § 5.
[53] N.B.--In some criminal cases also, though not of treason, husband
is admitted to prove an assault upon his wife, for the King, ruled by
Raymond, Chief-Justice, Trin. 11th Geo., King _v._ Azire. And for
various other exceptions see Buller's Nisi Prius, 286, 287.
[54] Cro. Charl. 365.
[55] Omichund _v._ Barker, 1st Atkyns, ut supra.
[56] Rex _v._ Philips, Burrow, Vol. I. p. 301, 302, 304.
[57] Mayor of Hull _v._ Horner, Cowper's Reports, 109.
[58] Abrahams _v._ Bunn, Burrow, Vol. IV. p. 2254. The whole case well
worth reading.
[59] Wyndham _v._ Chetwynd, Burrow, Vol. I. p. 421.
[60] King _v._ Bray.
[61] Wyndham _v._ Chetwynd.
[62] Lowe _v._ Joliffe, 1 Black. J. p. 366.
[63] Burrow, 1147. Zouch, ex dimiss. Woolston, _v._ Woolston.
[64] In this single point Holt did not concur with the rest of the
judges.
[65] 1st Siderfin, p. 431.
[66] Interest reipublicæ ut maleficia ne remaneant impunita.
[67] Love's Trial, State Trials, Vol. II. p. 144, 171 to 173, and 177;
and Foster's Crown Law, p. 235.
[68] Coppendale _v._ Bridgen, 2 Burrow, 814.
[69] Vide supra.
[70] Girdwood's Case, Leach, p. 128. Gordon's Case, Ibid. p. 245. Lord
Preston's Case, St. Tr. IV. p. 439. Layer's Case, St. Tr. VI. p. 279.
Foster's Crown Law, p. 198. Canning's Trial, St. Tr. X. p. 263, 270.
Trial of the Duchess of Kingston, St. Tr. XI. p. 244. Trial of Huggins,
St. Tr. IX. p. 119, 120, 135.
[71] Harrison's Practice of Chancery, Vol. II. p. 46. 1 Ch. Ca. 228. 1
Ch. Ca. 25. Oughton, Tit. 81, 82, 83. Do. Tit. 116. Viner, Tit. Evidence
(P. a.).
[72] Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.
[73] Ibid. Quest. CVI. No. 89.
[74] 22 Jac. I. 1624.
[75] Morris _v._ Pugh, Burrow, Vol. III. p. 1243. See also Vol. II.
Alder _v._ Chip; Vol. IV. Dickson _v._ Fisher; Grey _v._ Smythyes.--N.B.
All from the same judge, and proceeding on the same principles.
[76] Chesterfield _v._ Janssen, Atkyns's Reports, Vol. II.
[77] State Trials, Vol. III. p. 170.
[78] Bis in originali.
[79] Lords' Journals, 17 Ch. I. Die Sabbati, videlicet, 10º die Aprilis.
[80] Dal. 80. Pl. 18. Anno 14 Eliz. apud Viner, Evid. p. 60.
[81] State Trials, Vol. IV. p. 501.
APPENDIX.
No. 1.
IN THE CASE OF EARL FERRERS.
APRIL 17, 1760.
[Foster's Crown Law, p. 188, fol. edit.]
The House of Peers unanimously found Earl Ferrers guilty of the felony
and murder whereof he stood indicted, and the Earl being brought to the
bar, the High Steward acquainted him therewith; and the House
immediately adjourned to the Chamber of Parliament, and, having put the
following question to the Judges, adjourned to the next day.
"Supposing a peer, so indicted and convicted, ought by law to receive
such judgment as aforesaid, and the day appointed by the judgment for
execution should lapse before such execution done, whether a new time
may be appointed for the execution, and by whom?"
On the 18th, the House then sitting in the Chamber of Parliament, the
Lord Chief Baron, in the absence of the Chief-Justice of the Common
Pleas, delivered in writing the opinion of the Judges, which they had
agreed on and reduced into form that morning. His Lordship added many
weighty reasons in support of the opinion, which he urged with great
strength and propriety, and delivered with a becoming dignity.
_To the Second Question._
"Supposing the day appointed by the judgment for execution should lapse
before such execution done, (which, however, the law will not presume,)
we are all of opinion that a new time may be appointed for the
execution, either by the High Court of Parliament, before which such
peer shall have been attainted, or by the Court of King's Bench, the
Parliament not then sitting: the record of the attainder being properly
removed into that court."
The reasons upon which the Judges founded their answer to the question
relating to the further proceedings of the House after the High
Steward's commission dissolved, which is usually done upon pronouncing
judgment, may possibly require some further discussion. I will,
therefore, before I conclude, mention those which weighed with me, and,
I believe, with many others of the Judges.
_Reasons, &c._
Every proceeding in the House of Peers, acting in its judicial capacity,
whether upon writ of error, impeachment, or indictment, removed thither
by _Certiorari_, is in judgment of law a proceeding before the King in
Parliament; and therefore the House, in all those cases, may not
improperly be styled the Court of our Lord the King in Parliament. This
court is founded upon immemorial usage, upon the law and custom of
Parliament, and is part of the original system of our Constitution. It
is open for all the purposes of judicature, during the continuance of
the Parliament: it openeth at the beginning and shutteth at the end of
every session: just as the Court of King's Bench, which, is likewise in
judgment of law held before the King himself, openeth and shutteth with
the term. The authority of this court, or, if I may use the expression,
its constant activity for the ends of public justice, independent of any
special powers derived from the Crown, is not doubted in the case of
writs of error from those courts of law whence error lieth in
Parliament, and of impeachments for misdemeanors.
It was formerly doubted, whether, in the case of an impeachment for
treason, and in the case of an indictment against a peer for any capital
crime, removed into Parliament by _Certiorari_, whether in these cases
the court can proceed to trial and judgment without an High Steward
appointed by special commission from the Crown. This doubt seemeth to
have arisen from the not distinguishing between a proceeding in the
Court of the High Steward and that before the King in Parliament. The
name, style, and title of office is the same in both cases: but the
office, the powers and preëminences annexed to it, differ very widely;
and so doth the constitution of the courts where the offices are
executed. The identity of the name may have confounded our ideas, as
equivocal words often do, if the nature of things is not attended to;
but the nature of the offices, properly stated, will, I hope, remove
every doubt on these points.
In the Court of the High Steward, he alone is judge in all points of law
and practice; the peers triers are merely judges of fact, and are
summoned by virtue of a precept from the High Steward to appear before
him on the day appointed by him for the trial, _ut rei veritas melius
sciri poterit_. The High Steward's commission, after reciting that an
indictment hath been found against the peer by the grand jury of the
proper county, impowereth him to send for the indictment, to convene the
prisoner before him at such day and place as he shall appoint, then and
there to hear and determine the matter of such indictment; to cause the
peers triers, _tot et tales, per quos rei veritas melius sciri poterit_,
at the same day and place to appear before him; _veritateque inde
compertâ_, to proceed to judgment according to the law and custom of
England, and thereupon to award execution.[82] By this it is plain that
the sole right of judicature is in cases of this kind vested in the High
Steward; that it resideth solely in his person; and consequently,
without this commission, which is but in nature of a commission of Oyer
and Terminer, no one step can be taken in order to a trial; and that
when his commission is dissolved, which he declareth by breaking his
staff, the court no longer existeth.
But in a trial of a peer in full Parliament, or, to speak with legal
precision, before the King in Parliament, for a capital offence, whether
upon impeachment or indictment, the case is quite otherwise. Every peer
present at the trial (and every temporal peer hath a right to be present
in every part of the proceeding) voteth upon every question of law and
fact, and the question is carried by the major vote: the High Steward
himself voting merely as a peer and member of that court, in common with
the rest of the peers, and in no other right.
It hath, indeed, been usual, and very expedient it is, in point of order
and regularity, and for the solemnity of the proceeding, to appoint an
officer for presiding during the time of the trial, and until judgment,
and to give him the style and title of Steward of England: but this
maketh no sort of alteration in the constitution of the court; it is the
same court, founded in immemorial usage, in the law and custom of
Parliament, whether such appointment be made or not. It acteth in its
judicial capacity in every order made touching the time and place of the
trial, the postponing the trial from time to time upon petition,
according to the nature and circumstances of the case, the allowance or
non-allowance of council to the prisoner, and other matters relative to
the trial;[83] and all this before an High Steward hath been appointed.
And so little was it apprehended, in some cases which I shall mention
presently, that the existence of the court depended on the appointment
of an High Steward, that the court itself directed in what manner and by
what form of words he should be appointed. It hath likewise received and
recorded the prisoner's confession, which amounteth to a conviction,
before the appointment of an High Steward; and hath allowed to prisoners
the benefit of acts of general pardon, where they appeared entitled to
it, as well without the appointment of an High Steward as after his
commission dissolved. And when, in the case of impeachments, the Commons
have sometimes, at conferences between the Houses, attempted to
interpose in matters preparatory to the trial, the general answer hath
been, "This is a point of judicature upon which the Lords will not
confer; they impose silence upon themselves,"--or to that effect. I need
not here cite instances; every man who hath consulted the Journals of
either House hath met with many of them.
I will now cite a few cases, applicable, in my opinion, to the present
question. And I shall confine myself to such as have happened since the
Restoration; because, in questions of this kind, modern cases, settled
with deliberation, and upon a view of former precedents, give more light
and satisfaction than the deepest search into antiquity can afford; and
also because the prerogatives of the Crown, the privileges of
Parliament, and the rights of the subject in general appear to me to
have been more studied and better understood at and for some years
before that period than in former ages.