On all these your Committee observes in general, that, if the rules which respect the substance of the evidence are (as the great lawyers on whose authority we stand assert they are) no more than rules of convenience, much more are those subordinate rules which regard the order, the manner, and the time of the arrangement.  These are purely arbitrary, without the least reference to any fixed principle in the nature of things, or to any settled maxim of jurisprudence, and consequently are variable at every instant, as the conveniencies of the cause may require.

We admit, that, in the order of mere arrangement, there is a difference between examination of witnesses in chief and cross-examination, 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.