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mind of juries, it results from the deficiency of proof arising from the doubtful nature of the circumstances, and the doubtful and bad character of the witness by whom they are supported. Whether a man is to be believed upon his oath, is therefore a question to be decided solely by the jury upon the particular fact, and upon considering his whole testimony and demeanour; but the question generally put to witnesses to impeach character, supposes rather that it is an incapacity which he carries with him in all circumstances of his life, to be affixed to a man by dry general evidence, depriving him of all credit at all times, and which ought, therefore, like absolute incompetency, whether froin interest in the cause, or conviction of an infamous crime, to be an objection in limine ; or else, if given afterwards, it implies to a certain degree, taken to the extent of its literal meaning, the assuming of that office which belongs only to the jury, and determining the credit to be given to him in a particular case. Cross-examination as to character, indeed, seems necessarily to imply some enquiry into particular facts, which must tend to disgrace or discredit the witness ; whilst, if that is to be done by the loose general testimony of others without some enquiry into particulars, which it would be certainly very inconvenient to make except from the witness himself, we cannot help feeling that an injury is done to the witness by pernitting conjecture to range through the whole catalogue of and vices, rather than suffer the true sum of his offence to be made known. And were this in all cases to be adupted, not in order to supply the want of confession upon a cross-examination, but as the sole evidence of character, not only would the expence of trials be considerably increased by the additional number of witnesses, but either the effect of such evidence would be rendered almost pugatory, by admitting slight evidence in general, such as that the witness is of bad character, loose behaviour, and to be believed with great caution ; which would at last have little more effect upon a testimony given under no apprehension from the terrors of cross-exainination, than those excellent. ly good characters, which the worst thieves find means to procure at the foot of the gallows; or, if a strict rule were adopted, few would be found with courage to screw up their consciences to swear a man wholly unworthy of credit, and many a notorious rogue would obtain full credit in a court of justice, who would be known for a liar by all his neighbourhood. Besides, it is extremely difficult to produce testimony, either to general character or particular facts of infamous conduct, and most difficult, or rather impossible, where most pecessary; as where persons wholly unknown are produced as witnesses to a transaction in which they had really no concern, and where the adverse party must be wholly surprized by their testimony. This indeed, it is urged, may in civil cases be helped by a new trial, but the difficulty even of tracing every low miscreant to his haunts of infainy, the additional expence to the parties, and the extreme difficulty of deciding exactly what was the weight of the other testimony, or indeed how inuch the mere circumstance of character might have taken from the credit of the witness, would render this a very precarious, and by no means satisfactory remedy; and either the applications for new trials on this ground would be multiplied beyond all calculation, or such strict rules must be adopted as would probably operate to their general if not total exclusion. In cases of felony, however, even this remedy fails, since it is a thing wholly unprecedented to apply for a new trial; and where the lite of the party is at stake, although it is most desirable that he should have every assistance in establishing bis innocence, yet to admit of new trials would be alınost to overturn the whole system of justice.


We can pursue this enquiry no farther at present. In the course of it we have endeavoured to point out chiefly the difficulties which occur to prevent that which we conceive to be an unnecessary and impolitic alteration of the law of evidence; and we must conclude with saying, that we fear it would greatly diminish the efficacy of trial by jury; and if it did not wholly destroy, would tend considerably to lessen the true distiuction which ought ever to subsist between the character of witnesses, and make the verdict depend not upon their weight but their numbers. But to reduce all witnesses to one level is the worst of equality; and as inconsistent with the real nature of things, with the ends of justice, and the purposes of public trial, as equality of rank and fortune in political institutions, or equality of mental and corporeal endowments, in the natural constitution of nian. An equality which can only be produced by exalting the bad upon the abasement of the good; by confounding the honour and independence of virtuous integrity in one undistinguishable croud, with the meanness of fraud and artifice; not only to spare the transient blushes of ingenuous shame from weak and faultering virtue or repentant error, but we fear also to give unmerited security to bold and hardened infamy,

We therefore think it would be more safe to continue the present practice ; because all the inconveniences which, in the pursuit of a public advantage, it occasions to a few individuals, may be reinedied by a gentle restraint upon the es. amining counsel ; which the Judge will always know how to exercise with discretion. Finally, in order to try causes with effect by viva voce testimony, we think it indispensably necessary to try, first, the credit of the witnesses, by their own conduct and their own confessions.*

* That this is not a practice of novel invention, but founded in wisdom and utility will appear, at least as far as the sanction of a Roman lawyer and elegant classic can make it appear, from the following passage in Quinctilian* ; who, amongst other useful directions which he gives to the young advocate, well deserving the attention of all students, observes, “ Extra causam quoque multa que prosint, rogari solent, de vita testium aliorum, de sua quisque, si turpitudo, si kumilitas, si amicitia accusatoris, si inimicilice cum reo; in quibus aut dicant aliquid, quod prosit, aut in mendacio vel cupiditate lædendi deprehenduntur."

De institutione oratoria. Lib. v. cap. vii.

Testium natura cognoscenda.


No. II.

The Right Honourable Sir John Holt, Knight, Lord

Chief Justice of the Court of King's Bench. SIR John Holt was the eldest son of Sir Thomas Holt,

knight, serjeant at law, in the reign of king Charles II., by Susan his wife, daughter of John Peacock, of Chawley, near Comnore, in the county of Berks. He was born on the 30th of December, 164, 17 Churles I. at Thame, in Oxfordshire, and educated in Abingdon schoul, his father being then recorder of that town. He was afterwards entered as a gentleman commoner of * Oriel College, Oxford, under the tuition of Mr. Francis Barry, and in the year 1658, 10 Charles II., before he had taken any degree, was enrolled as a student of Gray's Innt. He there applied himself with exemplary industry to the study of the common

Wood's Athena Oxoniensis, vol. ij. c. 964. + Lord Raymond's Rep. p. 604.

law, and was called by that society to the bar as soon as he had kept his terms.

That Mr. Holt soon acquired considerable eminence at the bar is evident, for on the impeachment of the earl of Danby, in the year 1678, by the House of Commons, tie was appointed by the lords one of the prisoner's counsel with Mr. Serjeant Raymond, (father of the Lord Chief Justice), and Mr. Saunders (afterwards Chief Justice of the King's Bench).

On the 13th of February, 1,683, 2d James II., Mr. Holt was made recorder of London * by letters patent, in the room of sir Thomas Jenner, appointed one of the barons of the exchequer; and he at the same time received the honour of knighthood.

After discharging the duties of this office with acknowledged ability and general applause for about a year and a half, he was removed for not giving his consent to the abolition of the test laws. On this transaction it has been justly observed +, that “ though king James II. had no other wars but against the laws and constitutions of the nation, yet he would have the act, which makes it felony without benefit of clergy, for any soldier taking pay in the king's service in his wars beyond seas, and upon sea, or in Scotland to desert his officer, to extend to this army thus raised by king Jumes II., himself, in time of peace, to enslave the nation; and because the recorder of London, Sir John Holt, would not expound this law to the king's design, he was put out of his place; and so was Sir Edward Herbert & from being Chief Justice of the King's Bench, to make room for Sir Robert Wright to hang a poor soldier upon this statute, and afterwards, indeed, this statute did the work without any further dispute."

lib. 5. p.

Wood's Ath. Oxon. vol. ii. c. 964. Show. Rep. vol. ii. p. 466. + Coke's Detection of the Court and State of England, vol. ii.

275. 1 ?d and 3d Edward VI. cap. 2. sec. 6, which was repealed as to the felony by stat. 1 Mary, sess. 1. cap. 1. and revived by stat. 4 and 5 Phil. and Mary, cap. 3. sec. I.

When king James asked Sir James Herbert to vote for the repeal of the Test, he answered, he could not do it in honour or conscience; the king said, he knew he was a man of honour, but the rest of his life did not look like that of a man that had great re. gard for conscience, (for he was, indeed, abandoned to luxury and vice). Herlert boldly replied, that he had his faults, but they were such, that other people, who talked more of conscience, were guilty of the like,

A short time previous to Sir John Holl's falling into this apparent disgrace with the king, for so honestiy discharging his duty, he was called to the degree of serjeant at law, his writ bearing date on the 22d of April, sd Jumes 11. 1686.

In the year 1688, being chosen a member || in the convention parliament, called by the prince of Orange, to settle the distracted state of the nation, King James having withdrawn into France, he was appointed to be one of the managers for the commons, at the conferences with those appointed by the Lords, respecting the abdication and vacancy of the throne; and this solemn occasion afforded him every opportunity for displaying his great abilities, and profound knowledge of the constitution and laws of his country. To the manner in which he distinguished himself on this occasion, may probably in a great measure be attributed his speedy advancement: for as soon as the government was settled, and king William and queen Mary firmly seated upon the throne, he was appointed to the high post of Lord Chief Justice of the King's Bench t; Sir William Dolben, Sir William Gregory, and Giles Eyre, Esq. being at the same time constituted the three other Judges of that court.

On the 7th of May, 1039, Sir John Holt was chosen one of the governors of the Charler-house, in the room of the late Lord Chancellor Jefferies, and on the 25th of August, in the same year, he was made a member of the privy counsel, and sworn at Hampton-court.

The reversion of the place of chief clerk for enrolling pleas in the court of King's Bench, having been granted by king Charles to the duke of Grafton, a vacancy which happened soon after the duke's decease produced a contest at laws, between the Chief Justice and the young duke of Grafton,

• Mod. Rep. 3d vol. p. 100. The motto on his rings was Deus, Rer, Lxx.

ll Buyer's Remarkables of the year 1710, p. 407.

† 4th May, 1689, i IVillian and Mary. Lord Raymond Rep. vol. ii. p. 1309. Appendix to Chronica Juridicialia, p. 3. Vood's Athenæ Oxon. vol. ii. c. 967.—Bishop Burnet says, that " though he was a young man for so high a post, yet he maintained it all his time, with an bigh reputation for capacity, integrity, courage, and great dispatch; so that since the Lord Chief Justice Hale's time, that bench had not been so well filled as it was by hiin.”

I Boyer's Remarkables for 1710. Wood says he was made a Member of the Privy Council, on the 26th of September, 1682; but this inust be a mistake.

Shower's Parl. Cases, p. 111.
VOL. III. N° 16.


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