Amendments V and VI

[Volume 5, Page 247]

Document 5

Fenwick's Trial

13 How. St. Tr. 537, 591--92, 638 1696

Sergt. Lovel (for the prosecution): "We have Mr. Goodman's examination under the hand of Mr. Vernon; we pray it may be read." Sir. B. Shower (for the accused): "Mr. Speaker, . . . I humbly oppose the reading of this examination, as not agreeable to the rules of practice and evidence, and that which is wholly new. . . . No deposition of a person can be read, though beyond sea, unless in cases where the party it is to be read against was privy to the examination and might have cross-examined him or examined to his credit, if he thought fit. . . . Our law requires persons to appear and give their testimony 'viva voce'; and we see that their testimony appears credible or not by their very countenances and the manner of their delivery; and their falsity may sometimes be discovered by questions that the party may ask them, and by examining them to particular circumstances which may lay open the falsity of a well-laid scheme, which otherwise, as he himself had put it together, might have looked well at first; and this we are deprived of, if this examination should be admitted to be read. . . . We oppose it at present for that we were not present nor privy nor could have cross-examined him." Sir T. Powis, arguing: "How contrary this is to a fundamental rule in our law, that no evidence shall be given against a man, when he is on trial for his life, but in the presence of the prisoner, because he may cross-examine him who gives such evidence; and that is due to every man in justice."

The Founders' Constitution
Volume 5, Amendments V and VI, Document 5
The University of Chicago Press

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