The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12). Edmund Burke
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.72 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."73 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.74 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,75 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
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.).
Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.
Ibid. Quest. CVI. No. 89.
22 Jac. I. 1624.