the bar, and the jury not sent away, either side may give their evidence and examine witnesses to discover truth; and this is all the opinion as we can give concerning the proceedings before us.’  Upon, some consideration after this, the House appointed the Earl of Bath, Earl of South’ton, Earl of Hartford, Earl of Essex, Earl of Bristol, and the Lord Viscount Say et Seale to draw up some reasons upon which the former order was made, which, being read as followeth, were approved of, as the order of the House:  ’The gentlemen of the House of Commons did declare, that they challenge to themselves, by the common justice of the kingdom, that they, being prosecutors for the King, may bring any new proofs by witnesses during the time of the evidence being not fully concluded.  The Lords, being judges, and so equal to them and the prisoner, conceived this their desire to be just and reasonable; and also that, by the same common justice, the prisoner may use the same liberty; and that, to avoid any occasions of delay, the Lords thought fit that the articles and witnesses be presently named, and such as may be presently produced to be used presently, [and such as cannot to be used on Monday,] and no further time to be given.’  The Lord Steward was to let them know, that, if they will on both sides waive the use of new witnesses, they may proceed to the recollection of their evidence on both sides; if both sides will not waive it, then the Lord Steward is to read the precedent order; and if they will not proceed then, this House is to adjourn and rise."[79]

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