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.
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