The Works of the Right Honourable Edmund Burke Volume XI Part 3

For these reasons your Committee did and do strongly contend that the Court of Parliament ought to be open with great facility to the production of all evidence, except that which the precedents of Parliament teach them authoritatively to reject, or which hath no sort of natural apt.i.tude directly or circ.u.mstantially to prove the case. They have been and are invariably of opinion that the Lords ought _to enlarge, and not to contrast, the rules of evidence, according to the nature and difficulties of the case_, for redress to the injured, for the punishment of oppression, for the detection of fraud,--and above all, to prevent, what is the greatest dishonor to all laws and to all tribunals, the failure of justice. To prevent the last of these evils all courts in this and all countries have constantly made all their maxims and principles concerning testimony to conform; although such courts have been bound undoubtedly by stricter rules, both of form and of prescript cases, than the sovereign jurisdiction exercised by the Lords on the impeachment of the Commons ever has been or ever ought to be. Therefore your Committee doth totally reject any rules by which the practice of any inferior court is affirmed as a directory guide to an higher, especially where the forms and the powers of the judicature are different, and the objects of judicial inquiry are not the same.

Your Committee conceives that the trial of a cause is not in the arguments or disputations of the prosecutors and the counsel, but in _the evidence_, and that to refuse evidence is to refuse to hear the cause: nothing, therefore, but the most clear and weighty reasons ought to preclude its production. Your Committee conceives, that, when evidence on the face of it relevant, that is, connected with the party and the charge, was denied to be competent, _the burden lay upon those who opposed it_ to set forth the authorities, whether of positive statute, known recognized maxims and principles of law, pa.s.sages in an accredited inst.i.tute, code, digest, or systematic treatise of laws, or some adjudged cases, wherein, the courts have rejected evidence of that nature. No such thing ever (except in one instance, to which we shall hereafter speak) was produced at the bar, nor (that we know of) produced by the Lords in their debates, or by the Judges in the opinions by them delivered. Therefore, for anything which as yet appears to your Committee to the contrary, these responses and decisions were, in many of the points, not the determinations of any law whatsoever, but mere arbitrary decrees, to which we could not without solemn protestation, submit.

Your Committee, at an early period, and frequently since the commencement of this trial, have neglected no means of research which might afford them information concerning these supposed strict and inflexible rules of proceeding and of evidence, which, appeared to them, destructive of all the means and ends of justice: and, first, they examined carefully the Rolls and Journals of the House of Lords, as also the printed trials of cases before that court.

Your Committee finds but one instance, in the whole course of Parliamentary impeachments, in which evidence offered by the Commons has been rejected on the plea of inadmissibility or incompetence. This was in the case of Lord Strafford's trial; when the copy of a warrant (the same not having any attestation to authenticate it as a true copy) was, on deliberation, not admitted,--and your Committee thinks, as the case stood, with reason. But even in this one instance the Lords seemed to show a marked anxiety not to narrow too much the admissibility of evidence; for they confined their determination "to this individual case," as the Lord Steward reported their resolution; and he adds,--"They conceive this could be no impediment or failure in the proceeding, because the truth and verity of it would depend on the first general power given to execute it, which they who manage the evidence for the Commons say they could prove."[36] Neither have objections to evidence offered by the prisoner been very frequently made, nor often allowed when made. In the same case of Lord Strafford, two books produced by his Lordship, without proof by whom they were written, were rejected, (and on a clear principle,) "as being private books, and no records."[37] On both these occasions, the questions were determined by the Lords alone, without any resort to the opinions of the Judges. In the impeachments of Lord Stafford, Dr. Sacheverell, and Lord Wintoun, no objection to evidence appears in the Lords' Journals to have been pressed, and not above one taken, which was on the part of the Managers.

Several objections were, indeed, taken to evidence in Lord Macclesfield's trial.[38] They were made on the part of the Managers, except in two instances, where the objections were made by the witnesses themselves. They were all determined (those started by the Managers in their favor) by the Lords themselves, without any reference to the Judges. In the discussion of one of them, a question was stated for the Judges concerning the law in a similar case upon an information in the court below; but it was set aside by the previous question.[39]

On the impeachment of Lord Lovat, no more than one objection to evidence was taken by the Managers, against which Lord Lovat's counsel were not permitted to argue. Three objections on the part of the prisoner were made to the evidence offered by the Managers, but all without success.[40] The instances of similar objections in Parliamentary trials of peers on indictments are too few and too unimportant to require being particularized;--one, that in the case of Lord Warwick, has been already stated.

The principles of these precedents do not in the least affect any case of evidence which your Managers had to support. The paucity and inapplicability of instances of this kind convince your Committee that the Lords have ever used some lat.i.tude and liberality in all the means of bringing information before them: nor is it easy to conceive, that, as the Lords are, and of right ought to be, judges of law and fact, many cases should occur (except those where a personal _viva voce_ witness is denied to be competent) in which a judge, possessing an entire judicial capacity, can determine by antic.i.p.ation what is good evidence, and what not, before he has heard it. When he has heard it, of course he will judge what weight it is to have upon his mind, or whether it ought not entirely to be struck out of the proceedings.

Your Committee, always protesting, as before, against the admission of any law, foreign or domestic, as of authority in Parliament, further than as written reason and the opinion of wise and informed men, has examined into the writers on the Civil Law, ancient and more recent, in order to discover what those rules of evidence, in any sort applicable to criminal cases, were, which were supposed to stand in the way of the trial of offences committed in India.

They find that the term Evidence, _Evidentia_, from whence ours is taken, has a sense different in the Roman law from what it is understood to bear in the English jurisprudence; the term most nearly answering to it in the Roman being _Probatio_, Proof, which, like the term _Evidence_, is a generic term, including everything by which a doubtful matter may be rendered more certain to the judge: or, as Gilbert expresses it, every matter is evidence which amounts to the proof of the point in question.[41]

On the general head of Evidence, or Proof, your Committee finds that much has been written by persons learned in the Roman law, particularly in modern times,--and that many attempts have been made to reduce to rules the principles of evidence or proof, a matter which by its very nature seems incapable of that simplicity, precision, and generality which are necessary to supply the matter or to give the form to a rule of law. Much learning has been employed on the doctrine of indications and presumptions in their books,--far more than is to be found in our law. Very subtle disquisitions were made on all matters of jurisprudence in the times of the cla.s.sical Civil Law, by the followers of the Stoic school.[42] In the modern school of the same law, the same course was taken by Bartolus, Baldus, and the Civilians who followed them, before the complete revival of literature.[43] All the discussions to be found in those voluminous writings furnish undoubtedly an useful exercise to the mind, by methodizing the various forms in which one set of facts or collection of facts, or the qualities or demeanor of persons, reciprocally influence each other; and by this course of juridical discipline they add to the readiness and sagacity of those who are called to plead or to judge. But as human affairs and human actions are not of a metaphysical nature, but the subject is concrete, complex, and moral, they cannot be subjected (without exceptions which reduce it almost to nothing) to any certain rule. Their rules with regard to competence were many and strict, and our lawyers have mentioned it to their reproach. "The Civilians," it has been observed, "differ in nothing more than admitting evidence; for they reject _histriones_, &c., and whole tribes of people."[44] But this extreme rigor as to competency, rejected by our law, is not found to extend to the _genus_ of evidence, but only to a particular _species_,--personal witnesses.

Indeed, after all their efforts to fix these things by positive and inflexible maxims, the best Roman lawyers, in their best ages, were obliged to confess that every case of evidence rather formed its own rule than that any rule could be adapted to every case. The best opinions, however, seem to have reduced the admissibility of witnesses to a few heads. "For if," said Callistratus, in a pa.s.sage preserved to us in the Digest, "the testimony is free from suspicion, either on account of the quality of the _person_, namely, that he is in a reputable situation, or for _cause_, that is to say, that the testimony given is not for reward nor favor nor for enmity, such a witness is admissible." This first description goes to _competence_, between which and _credit_ Lord Hardwicke justly says the discrimination is very nice.

The other part of the text shows their anxiety to reduce credibility itself to a fixed rule. It proceeds, therefore,--"His Sacred Majesty, Hadrian, issued a rescript to Vivius Varus, Lieutenant of Cilicia, to this effect, that he who sits in judgment is the most capable of determining what credit is to be given to witnesses." The words of the letter of rescript are as follow:--"You ought best to know what credit is to be given to witnesses,--who, and of what dignity, and of what estimation they are,--whether they seem to deliver their evidence with simplicity and candor, whether they seem to bring a formed and premeditated discourse, or whether on the spot they give probable matter in answer to the questions that are put to them." And there remains a rescript of the same prince to Valerius Verus, on the bringing out the credit of witnesses. This appears to go more to the _general_ principles of evidence. It is in these words:--"What evidence, and in what measure or degree, shall amount to proof in each case can be defined in no manner whatsoever that is sufficiently certain. For, though not always, yet frequently, the truth of the affair may appear without any matter of public record. In some cases the number of the witnesses, in others their dignity and authority, is to be weighed; in others, concurring public fame tends to confirm the credit of the evidence in question.

This alone I am able, and in a few words, to give you as my determination: that you ought not too readily to bind yourself to try the cause upon any one description of evidence; but you are to estimate by your own discretion what you ought to credit, or what appears to you not to be established by proof sufficient."[45]

The modern writers on the Civil Law have likewise much matter on this subject, and have introduced a strictness with regard to personal testimony which our particular jurisprudence has not thought it at all proper to adopt. In others we have copied them more closely. They divide Evidence into two parts, in which they do not differ from the ancients: 1st, What is Evidence, or Proof, by itself; 2dly, What is Presumption, "which is a probable conjecture, from a reference to something which, coming from marks and tokens ascertained, shall be taken for truth, until some other shall be adduced." Again, they have labored particularly to fix rules for presumptions, which they divide into, 1.

Violent and necessary, 2. Probable, 3. and lastly, Slight and rash.[46]

But finding that this head of Presumptive Evidence (which makes so large a part with them and with us in the trial of all causes, and particularly criminal causes) is extremely difficult to ascertain, either with regard to what shall be considered as exclusively creating any of these three degrees of presumption, or what facts, and how proved, and what marks and tokens, may serve to establish them, even those Civilians whose character it is to be subtle to a fault have been obliged to abandon the task, and have fairly confessed that the labors of writers to fix rules for these matters have been vain and fruitless.

One of the most able of them[47] has said, "that the doctors of the law have written nothing of value concerning presumptions; nor is the subject-matter such as to be reduced within the prescribed limit of any certain rules. In truth, it is from the actual existing case, and from the circ.u.mstances of the persons and of the business, that we ought (under the guidance of an incorrupt judgment of the mind, which is called an equitable discretion) to determine what presumptions or conjectural proofs are to be admitted as rational or rejected as false, or on which the understanding can p.r.o.nounce nothing, either the one way or the other."

It is certain, that, whatever over-strictness is to be found in the older writers on this law with regard to evidence, it chiefly related to the mere competency of witnesses; yet even here the rigor of the Roman lawyers relaxed on the necessity of the case. Persons who kept houses of ill-fame were with them incompetent witnesses; yet among the maxims of that law the rule is well known of _Testes lupanares in re lupanari_.

In ordinary cases, they require two witnesses to prove a fact; and therefore they held, "that, if there be but one witness, and no probable grounds of presumption of some kind (_nulla argumenta_), that one witness is by no means to be heard"; and it is not inelegantly said in that case, _Non jus deficit, sed probatio_, "The failure is not in the law, but in the proof." But if other grounds of presumption appear, one witness is to be heard: "for it is not necessary that one crime should be established by one sort of proof only, as by witnesses, or by doc.u.ments, or by presumptions; all the modes of evidence may be so conjoined, that, where none of them alone would affect the prisoner, all the various concurrent proofs should overpower him like a storm of hail." This is held particularly true in cases where crimes are secret, and detection difficult. The necessity of detecting and punishing such crimes superseded, in the soundest authors, this theoretic aim at perfection, and obliged technical science to submit to practical expedience. "_In re criminali_," said the rigorists, "_probationes debent esse evidentes et luce meridiana clariores_": and so undoubtedly it is in offences which admit such proof. But reflection taught them that even their favorite rules of incompetence must give way to the exigencies of distributive justice. One of the best modern writers on the Imperial Criminal Law, particularly as practised in Saxony, (Carpzovius,) says,--"This alone I think it proper to remark, that even incompetent witnesses are sometimes admitted, if otherwise the truth cannot be got at; and this particularly in facts and crimes which are of difficult proof"; and for this doctrine he cites Farinacius, Mascardus, and other eminent Civilians who had written on Evidence. He proceeds afterwards,--"However, this is to be taken with a caution, that the impossibility of otherwise discovering the truth is not construed from hence, that other witnesses were not actually concerned, but that, from the nature of the crime, or from regard had to the place and time, other witnesses could not be present." Many other pa.s.sages from the same authority, and from others to a similar effect, might be added; we shall only remark shortly, that Gaill, a writer on the practice of that law the most frequently cited in our own courts, gives the rule more in the form of a maxim,--"that the law is contented with such proof as _can_ be made, if the subject _in its nature_ is difficult of proof."[48] And the same writer, in another pa.s.sage, refers to another still more general maxim, (and a sound maxim it is,) that the power and means of proof ought not to be narrowed, but enlarged, that the truth may not be concealed: "_Probationum facultas non angustari, sed ampliari debeat, ne veritas occultetur._"[49]

On the whole, your Committee can find nothing in the writings of the learned in this law, any more than they could discover anything in the Law of Parliament, to support any one of the determinations given by the Judges, and adopted by the Lords, against the evidence which your Committee offered, whether direct and positive, or merely (as for the greater part it was) circ.u.mstantial, and produced as a ground to form legitimate presumption against the defendant: nor, if they were to admit (which they do not) this Civil Law to be of authority in furnishing any rule in an impeachment of the Commons, more than as it may occasionally furnish a principle of reason on a new or undetermined point, do they find any rule or any principle, derived from that law, which could or ought to have made us keep back the evidence which we offered; on the contrary, we rather think those rules and principles to be in agreement with our conduct.

As to the Canon Law, your Committee, finding it to have adopted the Civil Law with no very essential variation, does not feel it necessary to make any particular statement on that subject.

Your Committee then came to examine into the authorities in the English law, both as it has prevailed for many years back, and as it has been recently received in our courts below. They found on the whole the rules rather less strict, more liberal, and less loaded with positive limitations, than in the Roman law. The origin of this lat.i.tude may perhaps be sought in this circ.u.mstance, which we know to have relaxed the rigor of the Roman law: courts in England do not judge upon evidence, _secundum allegata et probata_, as in other countries and under other laws they do, but upon verdict. By a fiction of law they consider the jury as supplying, in some sense, the place of testimony.

One witness (and for that reason) is allowed sufficient to convict, in cases of felony, which in other laws is not permitted.

In ancient times it has happened to the law of England (as in pleading, so in matter of evidence) that a rigid strictness in the application of technical rules has been more observed than at present it is. In the more early ages, as the minds of the Judges were in general less conversant in the affairs of the world, as the sphere of their jurisdiction was less extensive, and as the matters which came before them were of less variety and complexity, the rule being in general right, not so much inconvenience on the whole was found from a literal adherence to it as might have arisen from an endeavor towards a liberal and equitable departure, for which further experience, and a more continued cultivation of equity as a science, had not then so fully prepared them. In those times that judicial policy was not to be condemned. We find, too, that, probably from the same cause, most of their doctrine leaned towards the restriction; and the old lawyers being bred, according to the then philosophy of the schools, in habits of great subtlety and refinement of distinction, and having once taken that bent, very great acuteness of mind was displayed in maintaining every rule, every maxim, every presumption of law creation, and every fiction of law, with a punctilious exactness: and this seems to have been the course which laws have taken in every nation.[50] It was probably from this rigor, and from a sense of its pressure, that, at an early period of our law, far more causes of criminal jurisdiction were carried into the House of Lords and the Council Board, where laymen were judges, than can or ought to be at present.

As the business of courts of equity became more enlarged and more methodical,--as magistrates, for a long series of years, presided in the Court of Chancery, who were not bred to the Common Law,--as commerce, with its advantages and its necessities, opened a communication more largely with other countries,--as the Law of Nature and Nations (always a part of the law of England) came to be cultivated,--as an increasing empire, as new views and new combinations of things were opened,--this antique rigor and overdone severity gave way to the accommodation of human concerns, for which rules were made, and not human concerns to bend to them.

At length, Lord Hardwicke, in one of the cases the most solemnly argued, that has been in man's memory, with the aid of the greatest learning at the bar, and with the aid of all the learning on the bench, both bench and bar being then supplied with men of the first form, declared from the bench, and in concurrence with the rest of the Judges, and with the most learned of the long robe, the able council on the side of the old restrictive principles making no reclamation, "that the judges and sages of the law have laid it down that there is but ONE general rule of evidence,--_the best that the nature of the case will admit_."[51] This, then, the master rule, that governs all the subordinate rules, does in reality subject itself and its own virtue and authority _to the nature of the case_, and leaves no rule at all of an independent, abstract, and substantive quality. Sir Dudley Ryder, (then Attorney-General, afterwards Chief-Justice,) in his learned argument, observed, that "it is extremely proper that there should be _some_ general rules in relation to evidence; but _if exceptions were not allowed to them, it would be better to demolish all the general rules_. There is no general rule without exception that we know of but this,--that _the best evidence shall be admitted which the nature of the case will afford_. I will show that rules as general as this are broke in upon _for the sake of allowing evidence_. There is no rule that seems more binding than that a man shall not be admitted an evidence in his own case, and yet the Statute of Hue and Cry is an exception. A man's books are allowed to be evidence, or, which is in substance the same, his servant's books, _because the nature of the case requires it_,--as in the case of a brewer's servants. Another general rule, that a wife cannot be witness against her husband, has been broke in upon in cases of treason. Another exception to the general rule, that a man may not be examined without oath,--the last words of a dying man are given in evidence in the case of murder." Such are the doctrines of this great lawyer.

Chief-Justice Willes concurs with Lord Hardwicke as to dispensing with strict rules of evidence. "Such evidence," [he says,] "is to be admitted as the _necessity_ of the case will allow of: as, for instance, a marriage at Utrecht, certified under the seal of the minister there, and of the said town, and that they cohabited together as man and wife, was held to be sufficient proof that they were married." This learned judge (commenting upon Lord c.o.ke's doctrine, and Serjeant Hawkins's after him, that the oaths of Jews and pagans were not to be taken) says, "that this notion, though advanced by so great a man, is contrary to religion, common sense, and common humanity, and I think the devils, to whom he has delivered them, could not have suggested anything worse."

Chief-Justice Willes, admitting Lord c.o.ke to be a great lawyer, then proceeds in very strong terms, and with marks of contempt, to condemn "_his narrow notions_"; and he treats with as little respect or decorum the ancient authorities referred to in defence of such notions.

The principle of the departure from those rules is clearly fixed by Lord Hardwicke; he lays it down as follows:--"The first ground judges have gone upon, in departing from strict rules, is _absolute strict necessity_; 2dly, a _presumed_ necessity." Of the first he gives these instances:--"In the case of writings subscribed by witnesses, if all are dead, the proof of one of their hands is sufficient to establish the deed. Where an original is lost, a copy may be admitted; if no copy, then a proof by witnesses who have _heard_ the deed: and yet it is a thing the law abhors, to admit the memory of man for evidence." This enlargement through two stages of proof, both of them contrary to the rule of law, and both abhorrent from its principles, are by this great judge acc.u.mulated upon one another, and are admitted from _necessity_, to accommodate human affairs, and to prevent that which courts are by every possible means inst.i.tuted to prevent,--A FAILURE OF JUSTICE. And this necessity is not confined within the strict limits of physical causes, but is more lax, and takes in _moral and even presumed and argumentative necessity_, a necessity which is in fact nothing more than a great degree of expediency. The law creates a fict.i.tious necessity against the rules of evidence in favor of the convenience of trade: an exception which on a similar principle had before been admitted in the Civil Law, as to mercantile causes, in which the books of the party were received to give full effect to an insufficient degree of proof, called, in the nicety of their distinctions, a _semiplena probatio_.[52]

But to proceed with Lord Hardwicke. He observes, that "a tradesman's books" (that is, the acts of the party interested himself) "are admitted as evidence, though no _absolute necessity_, but by reason of a _presumption_ of necessity only, _inferred_ from the nature of commerce." "No rule," continued Lord Hardwicke, "can be more settled than that testimony is not to be received but upon oath"; but he lays it down, that an oath itself may be dispensed with. "There is another instance," says he, "where the lawful oath may be dispensed with,--where our courts admit evidence for the Crown without oath."

In the same discussion, the Chief-Baron (Parker) cited cases in which _all_ the rules of evidence had given way. "There is not a more general rule," says he, "than that hearsay cannot be admitted, nor husband and wife as witnesses against each other; and yet it is _notorious_ that from necessity they have been allowed,--not an _absolute_ necessity, but a _moral_ one."

It is further remarkable, in this judicial argument, that exceptions are allowed not only to rules of evidence, but that the rules of evidence themselves are not altogether the same, where the subject-matter varies.

The Judges have, to facilitate justice, and to favor commerce, even adopted the rules of _foreign_ laws. They have taken for granted, and would not suffer to be questioned, the regularity and justice of the proceedings of foreign courts; and they have admitted them as evidence, not only of the fact of the decision, but of the right as to its legality. "Where there are foreign parties interested, and in commercial matters, the rules of evidence are not quite the same as in other instances in courts of justice: the case of Hue and Cry, Brownlow, 47. A feme covert is not a lawful witness against her husband, except in cases of treason, but has been admitted in civil cases.[53] The testimony of a public notary is evidence by the law of France: contracts are made before a public notary, and no other witness necessary. I should think it would be no doubt at all, if it came in question here, whether this would be a valid contract, but a testimony from persons of that credit and reputation would be received as a very good proof in foreign transactions, and would authenticate the contract."[54]

These cases show that courts always govern themselves by these rules in cases of foreign transactions. To this principle Lord Hardwicke accords; and enlarging the rule of evidence by the nature of the subject and the exigencies of the case, he lays it down, "that it is a common and _natural_ presumption, that persons of the Gentoo religion should be princ.i.p.ally apprised of facts and transactions in their own country. As the English have only a factory in this country, (for it is in the empire of the Great Mogul,) if we should admit this evidence [Gentoo evidence on a Gentoo oath], it would be agreeable to the genius of the law of England." For this he cites the proceedings of our Court of Admiralty, and adopts the author who states the precedent, "that this Court will give credit to the sentence of the Court of Admiralty in France, and take it to be according to right, and will not examine their proceedings: for it would be found very inconvenient, if one kingdom should, by peculiar laws, correct the judgments and proceedings of another kingdom." Such is the genius of the law of England, that these two principles, of the general moral necessities of things, and the nature of the case, overrule every other principle, even those rules which seem the very strongest. Chief-Baron Parker, in answer to an objection made against the infidel deponent, "that the plaintiff ought to have shown that he could not have the evidence of Christians," says, "that, repugnant to natural justice, in the Statute of Hue and Cry, the robbed is admitted to be witness of the robbery, as _a moral or presumed necessity is sufficient_." The same learned magistrate, pursuing his argument in favor of liberality, in opening and enlarging the avenues to justice, does not admit that "the authority of one or two cases" is valid against reason, equity, and convenience, the vital principles of the law. He cites Wells _v._ Williams, 1 Raymond, 282, to show that the necessity of trade has mollified the too rigorous rules of the old law, in their restraint and discouragement of aliens. "A Jew may sue at _this_ day, but _heretofore he could not_, for then they were looked upon as enemies, but now commerce has taught the world more humanity; and therefore held that an alien enemy, commorant here by the license of the King, and under his protection, may maintain a debt upon a bond, though he did not come with safe-conduct." So far Parker, concurring with Raymond. He proceeds:--"It was objected by the defendant's counsel, that this is a novelty, and that what never has been done ought not to be done." The answer is, "_The law of England is not confined to particular cases, but is much more governed by reason than by any one case whatever._ The true rule is laid down by Lord Vaughan, fol. 37, 38. 'Where the law,' saith he, 'is _known and clear_, the Judges must determine as the law is, without regard to the inequitableness or inconveniency: these defects, if they happen in the law, can only be remedied by Parliament. But where the law is doubtful and not clear, the Judges ought to interpret the law to be as is most consonant to equity, and what is least inconvenient.'"

These principles of equity, convenience, and natural reason Lord Chief-Justice Lee considered in the same ruling light, not only as guides in matter of interpretation concerning law in general, but in particular as controllers of the whole law of evidence, which, being artificial, and made for convenience, is to be governed by that convenience for which it is made, and is to be wholly subservient to the stable principles of substantial justice, "I do apprehend," said that Chief-Justice, "that the rules of evidence are to be considered as _artificial_ rules, framed by men for _convenience in courts of justice_. This is a case that ought to be looked upon in that light; and I take it that considering evidence in this way [viz. according to natural justice] _is agreeable to the genius of the law of England_."

The sentiments of Murray, then Solicitor-General, afterwards Lord Mansfield, are of no small weight in themselves, and they are authority by being judicially adopted. His ideas go to the growing melioration of the law, by making its liberality keep pace with the demands of justice and the actual concerns of the world: not restricting the infinitely diversified occasions of men and the rules of natural justice within artificial circ.u.mscriptions, but conforming our jurisprudence to the growth of our commerce and of our empire. This enlargement of our concerns he appears, in the year 1744, almost to have foreseen, and he lived to behold it. "The arguments on the other side," said that great light of the law, (that is, arguments against admitting the testimony in question from the novelty of the case,) "prove nothing. Does it follow from thence, that no witnesses can be examined in a case that never specifically existed before, or that an action cannot be brought in a case that never happened before? _Reason_ (being stated to be the first ground of all laws by the author of the book called 'Doctor and Student') must determine the case. Therefore the only question is, Whether, _upon principles of reason, justice, and convenience_, this witness be admissible? Cases in law depend upon the _occasions_ which gave rise to them. All occasions do not arise at once: now a particular species of Indians appears; hereafter another species of Indians may arise. A statute can seldom take in all cases. Therefore the Common Law, that works itself pure by rules drawn from the fountain of justice, is for this reason superior to an act of Parliament."[55]

From the period of this great judgment to the trial of Warren Hastings, Esquire, the law has gone on continually working itself pure (to use Lord Mansfield's expression) by rules drawn from the fountain of justice. "General rules," said the same person, when he sat upon the bench, "are wisely established for attaining justice with ease, certainty, and dispatch; but the great end of them being _to do justice_, the Court will see that it be really obtained. The courts have been more liberal of late years in their determinations, and have more endeavored to attend to the _real justice_ of the case than formerly."

On another occasion, of a proposition for setting aside a verdict, he said, "This seems to be the true way to come at justice, and what we therefore ought to do; for the true text is, _Boni judicis est ampliare just.i.tiam_ (not _jurisdictionem_, as has been often cited)."[56] In conformity to this principle, the supposed rules of evidence have, in late times and judgments, instead of being drawn to a greater degree of strictness, been greatly relaxed.

"_All evidence is according to the subject-matter to which it is applied._ There is a great deal of difference between length of time that operates as a bar to a claim and that which is used only by way of evidence. Length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, or to draw their inferences one way or the other, according to circ.u.mstances. _I do not know an instance in which proof may not be supplied._"[57] In all cases of evidence Lord Mansfield's maxim was, _to lean to admissibility_, leaving the objections which were made to competency to go to credit, and to be weighed in the minds of the jury after they had heard it.[58]

In objections to wills, and to the testimony of witnesses to them, he thought "it clear that the Judges ought to lean _against_ objections to the formality."[59]

Lord Hardwicke had before declared, with great truth, "that the boundaries of what goes to the credit and what to the competency _are very nice, and the latter carried too far_"; and in the same case he said, "that, unless the objection appeared to him to carry a strong danger of perjury, and some apparent advantage might accrue to the witness, he was always inclined to let it go to his credit, only _in order to let in a proper light to the case, which would otherwise be shut out_; and _in a doubtful case_, he said, it was generally his custom _to admit the evidence_, and give such directions to the jury as the nature of the case might require."[60]

It is a known rule of evidence, that an interest in the matter to be supported by testimony disqualifies a witness; yet Lord Mansfield held, "that _nice_ objections to a remote interest which could not be paid or released, though they held in other cases, were not allowed to disqualify a witness to a will, as parishioners might have [prove?] a devise to the use of the poor of the parish forever." He went still nearer, and his doctrine tends so fully to settle the principles of departure from or adherence to rules of evidence, that your Committee inserts part of the argument at large. "The disability of a witness from interest is very different from a positive incapacity. If a deed must be acknowledged before a judge or notary public, every other person is under a positive incapacity to authenticate it; but objections of interest are deductions from natural reason, and proceed upon a presumption of too great a bias in the mind of the witness, and the public utility of rejecting partial testimony. Presumptions stand no longer than till the contrary is proved. The presumption of bias may be taken off by showing the witness has a [as?] great or a greater interest the other way, or that he has given it up. The presumption of public utility may be answered by showing that it would be very inconvenient, under the particular circ.u.mstances, not to receive such testimony. Therefore, from the course of business, necessity, and other reasons of expedience, _numberless exceptions_ are allowed to the _general_ rule."[61]

These being the principles of the latter jurisprudence, the Judges have suffered no positive rule of evidence to counteract those principles.

They have even suffered subscribing witnesses to a will which recites the soundness of mind in the testator to be examined to prove his insanity, and then the court received evidence to overturn that testimony and to destroy the credit of those witnesses. They were five in number, who attested to a will and codicil. They were admitted to annul the will they had themselves attested. Objections were taken to the competency of one of the witnesses in support of the will against its subscribing witnesses: 1st, That the witness was an executor in trust, and so liable to actions; 2dly, As having acted under the trust, whereby, if the will were set aside, he would be liable to answer for damages incurred by the sale of the deceased's chambers to a Mr.

Frederick. Mr. Frederick offered to submit to a rule to release, for the sake of public justice. Those who maintained the objection cited Siderfin, a reporter of much authority, 51, 115, and 1st Keble, 134.

Lord Mansfield, Chief-Justice, did not controvert those authorities; but in the course of obtaining substantial justice he treated both of them with equal contempt, though determined by judges of high reputation.

His words are remarkable: "We do not _now_ sit here to take our rules of evidence from Siderfin and Keble." He overruled the objection upon more recent authorities, which, though not in similar circ.u.mstances, he considered as within the reason. The Court did not think it necessary that the witness should release, as he had offered to do. "It appeared on this trial," says Justice Blackstone, "that a black conspiracy was formed to set aside the gentleman's will, without any foundation whatever." A prosecution against three of the testamentary witnesses was recommended, who were afterwards convicted of perjury.[62] Had strict formalities with regard to evidence been adhered to in any part of this proceeding, that very black conspiracy would have succeeded, and those black conspirators, instead of receiving the punishment of their crimes, would have enjoyed the reward of their perjury.

Lord Mansfield, it seems, had been misled, in a certain case, with regard to precedents. His opinion was against the reason and equity of the supposed practice, but he supposed himself not at liberty to give way to his own wishes and opinions. On discovering his error, he considered himself as freed from an intolerable burden, and hastened to undo his former determination. "There are no precedents," said he, with some exultation, "which stand in the way of our determining _liberally_, _equitably_, and according to the _true_ intention of the parties." In the same case, his learned a.s.sessor, Justice Wilmot, felt the same sentiments. His expressions are remarkable:--"Courts of law ought to concur with courts of equity in the execution of those powers which are very convenient to be inserted in settlements; and they ought not to listen to nice distinctions that savor of the schools, but to be guided by true good sense and manly reason. After the Statute of Uses, it is much to be lamented that the courts of Common Law had not adopted all the rules and maxims of courts of equity. This would have prevented the absurdity of receiving costs in one court and paying them in another."[63]

Your Committee does not produce the doctrine of this particular case as directly applicable to their charge, no more than several of the others here cited. We do not know on what precedents or principles the evidence proposed by us has been deemed inadmissible by the Judges; therefore against the grounds of this rejection we find it difficult directly to oppose anything. These precedents and these doctrines are brought to show the general temper of the courts, their growing liberality, and the general tendency of all their reasonings and all their determinations to set aside all such technical subtleties or formal rules, which might stand in the way of the discovery of truth and the attainment of justice. The cases are adduced for the principles they contain.

The period of the cases and arguments we have cited was that in which large and liberal principles of evidence were more declared, and more regularly brought into system. But they had been gradually improving; and there are few principles of the later decisions which are not to be found in determinations on cases prior to the time we refer to. Not to overdo this matter, and yet to bring it with some degree of clearness before the House, your Committee will refer but to a few authorities, and those which seem most immediately to relate to the nature of the cause intrusted to them. In Michaelmas, 11 Will. III., the King _v._ the Warden of the Fleet, a witness, who had really been a prisoner, and voluntarily suffered to escape, was produced to prove the escape. To the witness it was objected, that he had given a bond to be a true prisoner, which he had forfeited by escaping: besides, he had been retaken. His testimony was allowed; and by the Court, among other things, it was said, in secret transactions, if any of the parties concerned are not to be, for the necessity of the third, admitted as evidence, it will be impossible to detect the practice: as in cases of the Statute of Hue and Cry, the party robbed shall be a witness to charge the hundred; and in the case of Cooke _v._ Watts in the Exchequer, where one who had been prejudiced by the will was admitted an evidence to prove it forged.[64]

So in the case of King _v._ Parris,[65] where a feme covert was admitted as a witness for _fraudulently_ drawing her in, when sole, to give a warrant of attorney for confessing a judgment on an unlawful consideration, whereby execution was sued out against her husband, and Holt, Chief-Justice, held that a feme covert could not, by law, be a witness to convict one on an information; yet, in Lord Audley's case, it being a rape on her person, she was received to give evidence against him, and the Court concurred with him, because it was the best evidence the nature of the thing would allow. This decision of Holt refers to others more early, and all on the same principle; and it is not of this day that this one great principle of eminent public expedience, this moral necessity, "that crimes should not escape with impunity,"[66] has in all cases overborne all the common juridical rules of evidence,--it has even prevailed over the first and most natural construction of acts of Parliament, and that in matters of so penal a nature as high treason.

It is known that statutes made, not to open and enlarge, but on fair grounds to straiten proofs, require two witnesses in cases of high treason. So it was understood, without dispute and without distinction, until the argument of a case in the High Court of Justice, during the Usurpation. It was the case of the Presbyterian minister, Love, tried for high treason against the Commonwealth, in an attempt to restore the King. In this trial, it was contended for, and admitted, that one witness to one overt act, and one to another overt act of the same treason, ought to be deemed sufficient.[67] That precedent, though furnished in times from which precedents were cautiously drawn, was received as authority throughout the whole reign of Charles II.; it was equally followed after the Revolution; and at this day it is undoubted law. It is not so from the natural or technical rules of construction of the act of Parliament, but from the principles of juridical policy. All the judges who have ruled it, all the writers of credit who have written upon it, a.s.sign this reason, and this only,--_that treasons, being plotted in secrecy, could in few cases be otherwise brought to punishment_.

The same principle of policy has dictated a principle of relaxation with regard to severe rules of evidence, in all cases similar, though of a lower order in the scale of criminality. It is against fundamental maxims that an accomplice should be admitted as a witness: but accomplices are admitted from the policy of justice, otherwise confederacies of crime could not be dissolved. There is no rule more solid than that a man shall not ent.i.tle himself to profit by his own testimony. But an informer, in case of highway robbery, may obtain forty pounds to his own profit by his own evidence: this is not in consequence of positive provision in the act of Parliament; it is a provision of policy, lest the purpose of the act should be defeated.

Now, if policy has dictated this very large construction of an act of Parliament concerning high treason, if the same policy has dictated exceptions to the clearest and broadest rules of evidence in other highly penal causes, and if all this lat.i.tude is taken concerning matters for the greater part within our insular bounds, your Committee could not, with safety to the larger and more remedial justice of the Law of Parliament, admit any rules or pretended rules, unconnected and uncontrolled by circ.u.mstances, to prevail in a trial which regarded offences of a nature as difficult of detection, and committed far from the sphere of the ordinary practice of our courts.

If anything of an over-formal strictness is introduced into the trial of Warren Hastings, Esquire, it does not seem to be copied from the decisions of these tribunals. It is with great satisfaction your Committee has found that the reproach of "disgraceful subtleties,"

inferior rules of evidence which prevent the discovery of truth, of forms and modes of proceeding which stand in the way of that justice the forwarding of which is the sole rational object of their invention, cannot fairly be imputed to the Common Law of England, or to the ordinary practice of the courts below.

CIRc.u.mSTANTIAL EVIDENCE, ETC.

The rules of evidence in civil and in criminal cases, in law and in equity, being only reason methodized, are certainly the same. Your Committee, however, finds that the far greater part of the law of evidence to be found in our books turns upon questions relative to civil concerns. Civil cases regard property: now, although property itself is not, yet almost everything concerning property and all its modifications is, of artificial contrivance. The rules concerning it become more positive, as connected with positive inst.i.tution. The legislator therefore always, the jurist frequently, may ordain certain methods by which alone they will suffer such matters to be known and established; because their very essence, for the greater part, depends on the arbitrary conventions of men. Men act on them with all the power of a creator over his creature. They make fictions of law and presumptions of (_praesumptiones juris et de jure_) according to their ideas of utility; and against those fictions, and against presumptions so created, they do and may reject all evidence. However, even in these cases there is some restraint. Lord Mansfield has let in a liberal spirit against the fictions of law themselves; and he declared that he would do what in one case[68] he actually did, and most wisely, that he would admit evidence against a fiction of law, when the fiction militated against the policy on which it was made.