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.
Your Committee, not having learned that the resolutions of the Judges (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.