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“ Since the commencement of the present Impeachment, a monstrous doctrine has been urged, which, if established, would arm--the House of Lords with a despotic power, and might eventually
it must ever be considered as a most remarkable occurrence in the Legal history of this country, that in the minority were the votes of his Honour the Master of the Rolls, the Attorney and Solicitor General, six King's Counsel, one Serjeant, and several other Barristers of distinguished eminence.
When the same question was agitated in the House of Lords, it was again decided in the same manner ; the numbers being there 66 and 18; and the Lord Chancellor, and the Lord Chief Justice of the King's Bench, voted in the minority. Previous to any public investigation of this question, the author of this Dissertation was induced to collect and examine the authorities upon the subject, and to publish as his decided opinion, that an impeachment was terminated by a dissolution of Parliament*.
From the strenuous support which this side of the question received from the most learned part of the Profession of the Law, and from an attentive consideration of all that great abilities and industry have produced on the other, he must ever look back at that opinion with pride and satisfaction. But for the conclusion which we Professional men were obliged to draw from an unprejudiced examination of the subject, we
have Vide an Examination of Precedents and Principles, by Ed. Christian. 2d edition.
At that time the Master of the Rolls was Sir Richard Pepper Arden; the Attorney and Solicitor General, Sir Archibald Macdonald and Sir John Scott; the Chancellor, Lord Thurlow; l.ord Chief Justice of the King's Bench, Lord Kenyon.
prove fatal to our liberty and constitution; which is, that they are not bound, like inferior courts, bythe rigid and inflexible rules of evidence, but may adınit, at their discretion, any species of information which they may think necessary for the investigation of truth.
“ But I trust that the Lords will always have wisdom and virtue to reject such pernicious propositions, and will remember, that, in their character of judges, it is their province jus dicere, and not jus daret.
.“ The rules of evidence, likes the rules of morälity, are presumed to be founded, in the best sense
possible, bave been treated with a degree of obloquy unparalleled in the history of England. We have even been charged with waging war against the liberties and constitution of the country. We may have been mistaken; but the principle, which directed us to that conclusion, is fixed, I trust, upon too solid a foundation in our minds, ever to be shaken by the civium ardor prava jubentium.
† “ This may be thought to be expressed with an unbecoming vehemence. It is a doctrine which I have frequently been obliged to reprobate among the circle of my friends; and I introduce it here, to enforce thaç universal principle, that the spirit and substance of English liberty consist in the strict adherence to rul-s and the letter of the Law; and the more we introduce of arbitrary discretion, the more we shall approximate to the detestable maxims of the Eastern Governments."
possible, in reason and wisdom matured and confirmed by the experience of ages; and in all criminal proceedings, both in the highest and lowest courts, whether at the Quarter Sessions, or in the High Court of Parliament, and in the Court of the Lord High Steward, they are, and ought to be, precisely the same.
.“ And my Lord Coke solemnly cautions Parliaments ** to leave all causes to be measured by the golden and streight metwand of the Law,, and not by the uncertain and crooked cord of discretion.'
“ But though each of the two Houses of Parliament may do many acts, from which there is no remedy or appeal, yet I trust that they will always, have such a conscientious regard to the extent of their privileges and jurisdiction, that they will never adopt the maxim, That they can do no wrong, because they can do wrong with impunity.”
· Some time subsequent to the publication of that Pamphlet, I was surprized to hear that a Gentleman of the first celebrity for talents in this country had declared, in the House of Commons,' he could not
suffer ..... . Inst. 41. ,
suffer so erroneous and dangerous a doctrine to pass unnoticed, especially as it came from one whose duty it was to instruct the rising generation in the true principles of the Law and Constitution of England,'--and that in a speech of considerable length he had endeavoured to prove and establish that the House of Lords are not bound by the laws of evidence, like other Courts *.
I am not insensible of the honour to be thought of sufficient consequence that any error of mine should deserve the animadversions and correction of one, who is regarded as a Pillar of the State, and whose peculiar and anxious care it has long been to provide, Ne quid respublica detrimenti capiat.
But the zealous and faithful sentinel, who would shed his best blood in the defence of the citadel, may know little of its internal structure, or how each part contributes to the security and happiness of the wholet.
The * See the debates of the House of Commons in the Morning Chronicle of the 15th of February, 1791. 1.7 The author of the argument against what I had so incidentally advanced upon Evidence before the House of Lords, was the Right Honourable Edmund Burke. .. · It is the only error, which I am at present acquainted with, that he ever committed ; and it is one of such a magnitude,
The imputation of ignorance and temerity in denying the truth of a proposition, which I have always heard with astonishment; and the apprehension to the community, if it is false, when sanctioned by a name of such respectability; have induced me to compile this Dissertation, and to obtrude my opinion once more upon the Public.
It is perhaps a melancholy consideration to this country, that men of the greatest abilities generally
that it certainly affords me some pride and exultation that it has fallen to my lot to correct it ; for I never met with any reader of this Dissertation, who did not declare that he was convinced by it.
The talents displayed by that wonderful man, in resisting the progress of Revolutionary madness and wickedness, and in predicting their fatal consequences, had the extraordinary semblance of divination. In a publication I am now printing upon the Rights and Liberties of Englishmen, after making use of a splendid quotation from his works, I have thought it my duty to subjoin the following note :
“I should most earnestly recommend to every student, who is ambitious of obtaining distinction by making himself useful to his country, to peruse attentively the works of the Right Hon. Edmund Burke, and the works which contributed to his celebrity. I have been assured by his most confidential friends, that the Scriptures lay constantly upon his table, and that he declared that he read all Cicero's works over every year. From such a course of studies we may expect all that can adorn human nature, and can support and improve, for the liberty and happiness of the subjects, every human government. '