CLXXXIV. CHAP. new trial on the ground of the forged register, although, giving faith to the rest of the evidence of the party who obtained 1806-1807. the verdict, his case might be established without it. I do not say that the forgery was necessarily fatal-but sufficient weight was not given to it. Two conflicting decisions have occurred upon this subject in the House of Lords. In the Douglas cause, every branch of the written evidence that went to prove the descent of Lady Jane Douglas was known to be manufactured by Sir John Stewart, who, having neglected to secure evidence of birth, had recourse to those 'feigned letters,' as they were called, in support of his son's legitimacy, and that was considered, both by Lord Mansfield and Lord Camden, as not throwing any obstacle in the way. But in the more recent case of Lord Valentia, although his father and mother, before and at the time of his birth, had lived together as man and wife, and his father had often declared that he was married to the mother, and that the claimant was the legitimate son of that marriage, a forged certificate of marriage having been given in evidence, Lord Mansfield said, Truth does not require the aid of forgery; if the marriage was real, they might have relied upon the evidence belonging to it;' and judgment was given against Lord Valentia.* These two cases stand in opposition to each other. A rule is not to be laid down either way, but every case must depend upon its own circumstances."† Right of the House of Lords to give the their pro I will mention only one other decision of Lord Erskine in the Court of Chancery, which he pronounced the day he gave up the Great Seal. The House of Lords, according to exclusive many precedents, having made an order, "That the Lord right of publishing Chancellor should give orders for the printing and publishing the trial of Lord Melville, and the several questions put to the Judges, with their answers thereto, and that no other person should presume to print or publish the same," the Lord Chancellor appointed Mr. Gurney, the famous short-hand writer, who, with his assistants, had taken down the whole in short-hand, and was preparing to publish it when the defen ceedings. * However, he was held legitimate by the House of Lords in Ireland. CLXXXIV. dant advertised another report of the same trial and proceed- CHAP. ings: a bill was filed, and a motion made for an injunction.Lord Chancellor. "Notwithstanding the high authority of the 1806-1807. House of Lords, the copyright existing by my order under the direction of the House, I should not have been justified in granting the injunction without hearing the defendant, and I feel so forcibly the arguments that have been pressed for him, that if the case of Bathurst v. Kearsley had not been produced, which cannot be distinguished from this, I should not have been disposed to grant the injunction in the first instance, as it is not sufficient that privileges, however high, have been exercised, unless they have been judicially recognised. I shall therefore follow the example of Lord Eldon in the case of Bruce v. Bruce upon a dispute between the King's printers in this country and in Scotland, great consideration being necessary to arrive at a right judgment between their contending patents. When I then pressed him with the argument, that injunctions proceeding upon legal rights ought to have their foundation in legal title, receiving consummation by legal judgment, he answered, that the same question had been decided by Sir Joseph Jekyl, and his decree affirmed by the Lord Chancellor, and that the Court granting the injunction till the hearing did not decide ultimately upon the rights of the parties. I feel so much the detriment to the defendant from an injunction upon a publication of this temporary nature, calculated merely for the gratification of present curiosity, that unless I had a strong impression that at the hearing I should continue of the same opinion, and decree a perpetual injunction, I should not grant the injunction now. The facts are all admitted, and the question rests on the mere right of the plaintiff to a monopoly of this subject. This case turns on the authority of the Lords to exercise the privilege of appointing a person with exclusive power to print and publish their proceedings. The privilege has been uniformly asserted by the Lords, and it is confirmed by Lord Hardwicke and Lord Northington. The case of Bathurst v. Kearsley had a favourable circumstance for the defendant, which the present wants. There, the CHAP. CLXXXIV. House of Lords had permitted the Duchess of Kingston to employ a person to take notes on her behalf; she delivered 1806-1807. the notes to the counsel to be corrected, and afterwards sent them so corrected to the defendant, with directions to publish them for her protection. The present defendant does not claim under Lord Melville, but stands upon the liberty of every individual to publish an account of this trial. The trial of Dr. Sacheverell was published by the same authority which the plaintiff has obtained; and there are many other instances, of which I have selected a few, not only on articles of impeachment by the House of Commons, but also in trials for felony and treason." He then went through Lord Winton's trial, Lord Oxford's, Lord Lovat's, Lord Ferrers's, the Duchess of Kingston's, and Mr. Hastings's. He added, "I do not proceed on any thing like literary property, but upon this only, that the plaintiff is in the same situation as to this particular subject. At the hearing it is possible that a different view may be taken of the case. In Miller v. Taylor it appeared that the Crown had been in the constant course of granting the right of printing Almanacks; and at last King James II. granted that right to the Stationers' Company and the two Universities; for a century they kept up that monopoly by prosecutions; at length Carnan, an obstinate man, insisted on printing an almanack of his own. An injunction was applied for to the Court of Exchequer, and granted till the hearing: but at the hearing, that Court, sitting in equity, directed the question to be put to the Court of Common Pleas, whether the King had power to grant the exclusive right of printing and publishing Almanacks? After the case had been twice argued, the Court of Common Pleas returned for answer that the grant was void. The injunction was accordingly dissolved, and the House of Commons threw out a bill introduced for the purpose of continuing the monopoly." Erskine's It is impossible, with any justice, to praise Erskine as a when pre- magistrate, while we view him presiding in the Court of great merit * Gurney v. Longman, 13 Ves. 493-509. CLXXXIV. siding on the trial of Lord Mel ville. June, 1806. Chancery; but, luckily for his judicial fame, while he held CHAP. the Great Seal, the impeachment of Lord Melville, which had been voted in the lifetime of Mr. Pitt, came to be tried before the House of Peers. Mr. Hastings's trial had brought this mode of proceeding against state offenders into much disrepute, and to Erskine belongs the merit of proving that it may still be so conducted as to prove an efficient safeguard of the Constitution. Instead of the House sitting to hear the case a few days in a year, and when sitting being converted from a Court of Justice into a theatre for rhetorical display, he insisted that it should sit, like every other criminal tribunal, de die in diem, till the verdict was delivered; and he enforced both upon the managers of the House of Commons, and on the counsel for the defendant, the wholesome rules of procedure established for the detection of crime and the protection of innocence. During the fourteen days the trial lasted, his demeanor on the woolsack excited universal admiration for dignity, for courtesy, for impartiality, for firmness, and for discrimination. His nisi prius experience was now of infinite service to him, and he was able in a few minutes satisfactorily to decide questions of evidence which might have consumed whole days in arguments and in references to the Judges, and in processions from Westminster Hall to the Chamber of Parliament, and from the Chamber of Parliament to Westminster Hall. Entire deference was properly shown to his opinion respecting the mode of examining the witnesses and the admissibility of written documents, and without any intrusive interference, not unfrequently by a question which he put, or a suggestion which he offered, he materially assisted both the prosecution and the defence. As the evidence turned very much on matters of account, it is difficult to convey any idea of the points which were ruled; but as a specimen I will mention the decision upon the question, whether the contents of a book kept in an iron chest in the Pay Office could be read against Lord Melville, Mr. Whitbread, Sir S. Romilly, and Serjeant Best contending for the Commons, that he must be presumed to be cognizant of them, and his counsel, Mr. Plumer and Mr. CHAP. CLXXXIV. A. D. 1806. Question on the privilege of Adams, insisting that, as the book was not kept by him or under his authority, he could not be affected by it.-Lord Chancellor. "Unless any noble lord shall think that this matter ought to be further considered in the Chamber of Parliament, I will now state what I think of it. I am of opinion that the entry proposed to be read from this book ought not to be received. I am persuaded that the honourable managers offered it to the Court from a sense of duty and justice; and I am persuaded that every one of your Lordships feels, as I do, the greatest possible respect for their dignity and learning; but it is the office and duty of the House, as a Court of Justice, to pronounce upon the legality of the evidence which is offered to it; and I am anxious, in the few words I mean to deliver, to make it manifest that the House has administered, as it will always administer, consistent justice. The certificate of Mr. Andrew Douglas, as to the receipt of money at the Exchequer, was received yesterday, because he was proved to have acted under a power of attorney from Lord Melville, and that certificate was shown to have been given in the universal and public course by which the receipt of such money was to be manifested. But this is a book which cannot be received on any principle of justice. If it had been an official document to which Lord Melville had access, and which it was his duty to examine, he might have been presumed to be aware of its contents; but no such character has been imputed to it; or if he could have been proved to have referred to it, or to have adopted it, it would have been evidence against his Lordship, whether it be public or private; but the honourable managers did not profess to be possessed of any such proof -- saying only that the noble lord had admitted a balance similar to that which the House would have found recorded in the book if it had been received." The House unanimously concurred in this opinion. Without further discussion the book was rejected. When Mr. Tierney, one of the managers for the Commons, was called as a witness, he claimed as a privilege to be exa member amined from his place in the gallery set apart for the Com |