Trials,” a book compiled from materials of very various authority; and in none of those which we have seen is there, as appears to us, a single example of the rejection of evidence similar to that rejected by the advice of the Judges in the House of Lords.  Neither, if such examples did exist, could your Committee allow them to apply directly and necessarily, as a measure of reason, to the proceedings of a court constituted so very differently from those in which the Common Law is administered.  In the trials below, the Judges decide on the competency of the evidence before it goes to the jury, and (under the correctives, in the use of their discretion, stated before in this Report) with great propriety and wisdom.  Juries are taken promiscuously from the mass of the people.  They are composed of men who, in many instances, in most perhaps, never were concerned in any causes, judicially or otherwise, before the time of their service.  They have generally no previous preparation, or possible knowledge of the matters to be tried, or what is applicable or inapplicable to them; and they decide in a space of time too short for any nice or critical disquisition.  The Judges, therefore, of necessity, must forestall the evidence, where there is a doubt on its competence, and indeed observe much on its credibility, or the most dreadful consequences might follow.  The institution of juries, if not thus qualified, could not exist.  Lord Mansfield makes the same observation with regard to another corrective of the short mode of trial,—­that of a new trial.

This is the law, and this its policy.  The jury are not to decide on the competency of witnesses, or of any other kind of evidence, in any way whatsoever.  Nothing of that kind can come before them.  But the Lords in the High Court of Parliament are not, either actually or virtually, a jury.  No legal power is interposed between them and evidence; they are themselves by law fully and exclusively equal to it.  They are persons of high rank, generally of the best education, and of sufficient knowledge of the world; and they are a permanent, a settled, a corporate, and not an occasional and transitory judicature.  But it is to be feared that the authority of the Judges (in the case of juries legal) may, from that example, weigh with the Lords further than its reason or its applicability to the judicial capacity of the Peers can support.  It is to be feared, that if the Lords should think themselves bound implicitly to submit to this authority, that at length they may come to think themselves to be no better than jurors, and may virtually consent to a partition of that judicature which the law has left to them whole, supreme, uncontrolled, and final.