The Works of the Right Honourable Edmund Burke Volume XI Part 4

Thus it is with things which owe their existence to men; but where the subject is of a physical nature, or of a moral nature, independent of their conventions, men have no other reasonable authority than to register and digest the results of experience and observation. Crimes are the actions of physical beings with an evil intention abusing their physical powers against justice and to the detriment of society: in this case fictions of law and artificial presumptions (_juris et de jure_) have little or no place. The presumptions which belong to criminal cases are those natural and popular presumptions which are only observations turned into maxims, like adages and apophthegms, and are admitted (when their grounds are established) in the place of proof, where better is wanting, but are to be always over turned by counter proof.

These presumptions mostly go to the _intention_. In all criminal cases, the crime (except where the law itself implies malice) consists rather in the intention than the action. Now the intention is proved but by two ways: either, 1st, by confession,--this first case is rare, but simple,--2dly, by circ.u.mstantial proof,--this is difficult, and requires care and pains. The connection of the intention and the circ.u.mstances is plainly of such a nature as more to depend on the sagacity of the observer than on the excellence of any rule. The pains taken by the Civilians on that subject have not been very fruitful; and the English law-writers have, perhaps as wisely, in a manner abandoned the pursuit.

In truth, it seems a wild attempt to lay down any rule for the proof of intention by circ.u.mstantial evidence. All the acts of the party,--all things that explain or throw light on these acts,--all the acts of others relative to the affair, that come to his knowledge, and may influence him,--his friendships and enmities, his promises, his threats, the truth of his discourses, the falsehood of his apologies, pretences, and explanations, his looks, his speech, his silence where he was called to speak,--everything which tends to establish the connection between all these particulars,--every circ.u.mstance, precedent, concomitant, and subsequent, become parts of circ.u.mstantial evidence. These are in their nature infinite, and cannot be comprehended within any rule or brought under any cla.s.sification.

Now, as the force of that presumptive and conjectural proof rarely, if ever, depends on one fact only, but is collected from the number and acc.u.mulation of circ.u.mstances concurrent in one point, we do not find an instance, until this trial of Warren Hastings, Esquire, (which has produced many novelties,) that attempts have been made by any court to call on the prosecutor for an account of the purpose for which he means to produce each particle of this circ.u.mstantial evidence, to take up the circ.u.mstances one by one, to prejudge the efficacy of each matter separately in proving the point,--and thus to break to pieces and to garble those facts, upon the mult.i.tude of which, their combination, and the relation of all their component parts to each other and to the culprit, the whole force and virtue of this evidence depends. To do anything which can destroy this collective effect is to deny circ.u.mstantial evidence.

Your Committee, too, cannot but express their surprise at the particular period of the present trial when the attempts to which we have alluded first began to be made. The two first great branches of the accusation of this House against Warren Hastings, Esquire, relate to public and notorious acts, capable of direct proof,--such as the expulsion of Cheyt Sing, with its consequences on the province of Benares, and the seizure of the treasures and jaghires of the Begums of Oude. Yet, in the proof of those crimes, your Committee cannot justly complain that we were very narrowly circ.u.mscribed in the production of much circ.u.mstantial as well as positive evidence. We did not find any serious resistance on this head, till we came to make good our charges of secret crimes,--crimes of a cla.s.s and description in the proof of which all judges of all countries have found it necessary to relax almost all their rules of competency: such crimes as peculation, pecuniary frauds, extortion, and bribery. Eight out of nine of the questions put to the Judges by the Lords, in the first stage of the prosecution, related to circ.u.mstances offered in proof of these secret crimes.

Much industry and art have been used, among the illiterate and unexperienced, to throw imputations on this prosecution, and its conduct, because so great a proportion of the evidence offered on this trial (especially on the latter charges) has been circ.u.mstantial.

Against the prejudices of the ignorant your Committee opposes the judgment of the learned. It is known to them, that, when this proof is in its greatest perfection, that is, when it is most abundant in circ.u.mstances, it is much superior to positive proof; and for this we have the authority of the learned judge who presided at the trial of Captain Donellan. "On the part of the prosecution, a great deal of evidence has been laid before you. It is _all_ circ.u.mstantial evidence, and in its nature it must be so: for, in cases of this sort, no man is weak enough to commit the act in the presence of other persons, or to suffer them to see what he does at the time; and therefore it can only be made out by circ.u.mstances, either before the committing of the act, at the time when it was committed, or subsequent to it. And a presumption, which necessarily arises from circ.u.mstances, is very often more convincing and more satisfactory than any other kind of evidence: because it is not within the reach and compa.s.s of human abilities to invent a train of circ.u.mstances which shall be so connected together as to amount to a proof of guilt, without affording opportunities of contradicting a great part, if not all, of these circ.u.mstances. But if the circ.u.mstances are such as, when laid together, bring conviction to your minds, it is then fully equal, if not, as I told you before, _more_ convincing than positive evidence." In the trial of Donellan no such selection was used as we have lately experienced; no limitation to the production of every matter, before, at, and after the fact charged. The trial was (as we conceive) rightly conducted by the learned judge; because secret crimes, such as secret a.s.sa.s.sination, poisoning, bribery, peculation, and extortion, (the three last of which this House has charged upon Mr. Hastings,) can very rarely be proved in any other way.

That way of proof is made to give satisfaction to a searching, equitable, and intelligent mind; and there must not be a failure of justice. Lord Mansfield has said that he did not know a case in which proof might not be supplied.[69]

Your Committee has resorted to the trial of Donellan, and they have and do much rely upon it, first, on account of the known learning and ability of the judge who tried the cause, and the particular attention he has paid to the subject of evidence, which forms a book in his treatise on _Nisi Prius_;--next, because, as the trial went _wholly_ on circ.u.mstantial evidence, the proceedings in it furnish some of the most complete and the fullest examples on that subject;--thirdly, because the case is recent, and the law cannot be supposed to be materially altered since the time of that event.

Comparing the proceedings on that trial, and the doctrines from the bench, with the doctrines we have heard from the woolsack, your Committee cannot comprehend how they can be reconciled. For the Lords compelled the Managers to declare for what purpose they produced each separate member of their circ.u.mstantial evidence: a thing, as we conceive, not usual, and particularly not observed in the trial of Donellan. We have observed in that trial, and in most others which we have had occasion to resort to, that the prosecutor is suffered to proceed narratively and historically, without interruption. If, indeed, it appears on the face of the narration that what is represented to have been said, written, or done did not come to the knowledge of the prisoner, a question sometimes, but rarely, has been asked, whether the prisoner could be affected with the knowledge of it. When a connection with the person of the prisoner has been in any way shown, or even promised to be shown, the evidence is allowed to go on without further opposition. The sending of a sealed letter,--the receipt of a sealed letter, inferred from the delivery to the prisoner's servant,--the bare possession of a paper written by any other person, on the presumption that the contents of such letters or such paper were known to the prisoner,--and the being present when anything was said or done, on the presumption of his seeing or hearing what pa.s.sed, have been respectively ruled to be sufficient. If, on the other hand, no circ.u.mstance of connection has been proved, the judge, in summing up, has directed the jury to pay no regard to a letter or conversation the proof of which has so failed: a course much less liable to inconvenience, where the same persons decide both the law and the fact.[70]

To ill.u.s.trate the difficulties to which your Committee was subjected on this head, we think it sufficient to submit to the House (reserving a more full discussion of this important point to another occasion) the following short statement of an incident which occurred in this trial.

By an express order of the Court of Directors, (to which, by the express words of the act of Parliament under which he held his office, he was ordered to yield obedience,) Mr. Hastings and his colleagues were directed to make an inquiry into all offences of bribery and corruption in office. On the 11th of March a charge in writing of bribery and corruption in office was brought against himself. On the 13th of the same month, the accuser, a man of high rank, the Rajah Nundcomar, appears personally before the Council to make good his charge against Mr. Hastings before his own face. Mr. Hastings thereon fell into a very intemperate heat, obstinately refused to be present at the examination, attempted to dissolve the Council, and contumaciously retired from it.

Three of the other members, a majority of the Council, in execution of their duty, and in obedience to the orders received under the act of Parliament, proceeded to take the evidence, which is very minute and particular, and was entered in the records of the Council by the regular official secretary. It was afterwards read in Mr. Hastings's own presence, and by him transmitted, under his own signature, to the Court of Directors. A separate letter was also written by him, about the same time, desiring, on his part, that, in any inquiry into his conduct, "not a single word should escape observation." This proceeding in the Council your Committee, in its natural order, and in a narrative chain of circ.u.mstantial proof, offered in evidence. It was not permitted to be read; and on the 20th and 21st of May, 1789, we were told from the woolsack, "that, when a paper is not evidence by itself," (such this part of the Consultation, it seems, was reputed,) "a party who wishes to introduce a paper of that kind is called upon not only to state, but to make out on proof, _the whole of the grounds upon which he proceeds to make that paper proper evidence_; that the evidence that is produced must be _the demeanor_ of the party respecting that paper; and it is the connection between them, _as material to the charge depending_, that will enable them to be produced."

Your Committee observes, that this was not a paper _foreign_ to the prisoner, and sent to him as _a letter_, the receipt of which, and his conduct thereon, were to be brought home to him, to infer his guilt from his demeanor. It was an office doc.u.ment of his own department, concerning himself, and kept by officers of his own, and by himself transmitted, as we have said, to the Court of Directors. Its proof was in the record. The charge made against him, and his demeanor on being acquainted with it, were not in separate evidence. They all lay together, and composed a connected narrative of the business, authenticated by himself.

In that case it seems to your Committee extremely irregular and preposterous to demand previous and extraneous proofs of the demeanor of the party respecting the paper, and the connection between them, as _material to the charge_ depending; for this would be to try what the effect and operation of the evidence would be on the issue of the cause, before its production.

The doctrine so laid down demands that every several circ.u.mstance should in itself be conclusive, or at least should afford a violent presumption: it must, we were told, without question, be material to the charge depending. But, as we conceive, its materiality, more or less, is not in the first instance to be established. To make it admissible, it is enough to give proof, or to raise a legal inference, of its connection both with the charge depending and the person of the party charged, where it does not appear on the face of the evidence offered.

Besides, by this new doctrine, the materiality required to be shown must be decided from a consideration, not of the whole circ.u.mstance, but in truth of one half of the circ.u.mstance,--of a demeanor unconnected with and unexplained by that on which it arose, though the connection between the demeanor of the party and the paper is that which must be shown to be material. Your Committee, after all they have heard, is yet to learn how the full force and effect of any demeanor, as evidence of guilt or innocence, can be known, unless it be also fully known _to what that demeanor applied_,--unless, when a person did or said anything, it be known, not generally and abstractedly, that a paper was read to him, but particularly and specifically _what were the contents of that paper_: whether they were matters lightly or weightily alleged,--within the power of the party accused to have confuted on the spot, if false,--or such as, though he might have denied, he could not instantly have disproved. The doctrine appeared and still appears to your Committee to be totally abhorrent from the genius of circ.u.mstantial evidence, and mischievously subversive of its use. We did, however, offer that extraneous proof which was demanded of us; but it was refused, as well as the office doc.u.ment.

Your Committee thought themselves the more bound to contend for every mode of evidence _to the intention,_ because in many of the cases the gross fact was admitted, and the prisoner and his counsel set up pretences of public necessity and public service for his justification.

No way lay open for reb.u.t.ting this justification, but by bringing out all the circ.u.mstances attendant on the transaction.

ORDER AND TIME OF PRODUCING EVIDENCE.

Your Committee found great impediment in the production of evidence, not only on account of the general doctrines supposed to exist concerning its inadmissibility, drawn from its own alleged natural incompetency, or from its inapplicability under the pleading of the impeachment of this House, but also from the mode of proceeding in bringing it forward. Here evidence which we thought necessary to the elucidation of the cause was not suffered, upon the supposed rules of _examination in chief and cross-examination_, and on supposed rules forming a distinction between evidence _originally_ produced on the charge and evidence offered on _the reply_.

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 a.s.sert 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 pa.s.sive 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 compa.s.s of one natural day, or thereabouts: during that short s.p.a.ce 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.

But in other courts, such as the Court of Chancery, the Courts of Admiralty Jurisdiction, (except in prize causes under the act of Parliament,) and in the Ecclesiastical Courts, wherein the trial is not by an inclosed jury in those courts, such strait limits are not of course necessary: the cause is continued by many adjournments; as long as the trial lasts, new witnesses are examined (even after the regular stage) for each party, on a special application under the circ.u.mstances to the sound discretion of the court, where the evidence offered is newly come to the knowledge or power of the party, and appears on the face of it to be material in the cause. _Even after hearing_, new witnesses have been examined, or former witnesses reexamined, not as the right of the parties, but _ad informandam conscientiam judicis_.[71] All these things are not unfrequent in some, if not in all of these courts, and perfectly known to the judges of Westminster Hall; who cannot be supposed ignorant of the practice of the Court of Chancery, and who sit to try appeals from the Admiralty and Ecclesiastical Courts as delegates.

But as criminal prosecutions according to the forms of the Civil and Canon Law are neither many nor important in any court of this part of the kingdom, your Committee thinks it right to state the undisputed principle of the Imperial Law, from the great writer on this subject before cited by us,--from Carpzovius. He says, "that a doubt has arisen, whether, evidence being once given in a trial on a public prosecution, (_in processu inquisitorio_,) and the witnesses being examined, it may be allowed to form other and new articles and to produce new witnesses."

Your Committee must here observe, that the _processus inquisitorius_ is that proceeding in which the prosecution is carried on in the name of the judge acting _ex officio_, from that duty of his office which is called the _n.o.bile officium judicis_. For the judge under the Imperial Law possesses both those powers, the inquisitorial and the judicial, which in the High Court of Parliament are more aptly divided and exercised by the different Houses; and in this kind of process the House will see that Carpzovius couples the production of new witnesses and the forming of new articles (the undoubted privilege of the Commons) as intimately and necessarily connected. He then proceeds to solve the doubt. "Certainly," says he, "there are authors who deny, that, after publication of the depositions, any new witnesses and proofs that can affect the prisoner ought to be received; which," says he, "is true in a case where a private prosecutor has intervened, who produces the witnesses. But if the judge proceeds by way of inquisition _ex officio_, then, even after the completion of the examination of witnesses against the prisoner, new witnesses may be received and examined, and, on new grounds of suspicion arising, new articles may be formed, according to the common opinion of the doctors; and as it is the most generally received, so it is most agreeable to reason."[72] And in another chapter, relative to the ordinary criminal process by a private prosecutor, he lays it down, on the authority of Angelus, Bartolus, and others, that, after the right of the party prosecuting is expired, the judge, taking up the matter _ex officio_, may direct new witnesses and new proofs, even after publication.[73] Other pa.s.sages from the same writer and from others might be added; but your Committee trusts that what they have produced is sufficient to show the general principles of the Imperial Criminal Law.

The High Court of Parliament bears in its modes of proceeding a much greater resemblance to the course of the Court of Chancery, the Admiralty, and Ecclesiastical Courts, (which are the King's courts too, and their law the law of the land,) than to those of the Common Law. The accusation is brought into Parliament, at this very day, by _exhibiting articles_; which your Committee is informed is the regular mode of commencing a criminal prosecution, where the office of the judge is promoted, in the Civil and Canon Law courts of this country. The answer, again, is usually specific, both to the fact and the law alleged in each particular article; which is agreeable to the proceeding of the Civil Law, and not of the Common Law.

Anciently the resemblance was much nearer and stronger. Selden, who was himself a great ornament of the Common Law, and who was personally engaged in most of the impeachments of his time, has written expressly on the judicature in Parliament. In his fourth chapter, int.i.tuled, _Of Witnesses_, he lays down the practice of his time, as well as of ancient times, with respect to the proof by examination; and it is clearly a practice more similar to that of the Civil than the Common Law. "The practice at this day," says he, "is to swear the witnesses in open House, and then to examine them there, _or at a committee_, either upon _interrogatories_ agreed upon in the House, or such as the committee in their discretion shall demand. Thus it was in ancient times, as shall appear by the precedents, so many as they are, they being very sparing to record those ceremonies, which I shall briefly recite: I then add those of later times."

Accordingly, in times so late as those of the trial of Lord Middles.e.x,[74] upon an impeachment of the Commons, the whole course of the proceeding, especially in the mode of adducing the evidence, was in a manner the same as in the Civil Law: depositions were taken, and publication regularly pa.s.sed: and on the trial of Lord Strafford, both modes pointed out by Selden seem to have been indifferently used.

It follows, therefore, that this high court (bound by none of their rules) has a liberty to adopt the methods of any of the legal courts of the kingdom at its discretion; and in _sound_ discretion it ought to adopt those which bear the nearest resemblance to its own const.i.tution, to its own procedure, and to its exigencies in the promotion of justice.

There are conveniencies and inconveniencies both in the shorter and the longer mode of trial. But to bring the methods observed (if such are in fact observed) in the former, only from necessity, into the latter, by choice, is to load it with the inconveniency of both, without the advantages of either. The chief benefit of any process which admits of adjournments is, that it may afford means of fuller information and more mature deliberation. If neither of the parties have a strict right to it, yet the court or the jury, as the case may be, ought to demand it.

Your Committee is of opinion, that all rules relative to laches or neglects in a party to the suit, which may cause nonsuit on the one hand or judgment by default in the other, all things which cause the party _cadere in jure_, ought not to be adhered to in the utmost rigor, even in civil cases; but still less ought that spirit which takes advantage of lapses and failures on either part to be suffered to govern in causes criminal. "Judges ought to _lean_ against every attempt to nonsuit a plaintiff on objections which have no relation to the real merits. It is unconscionable in a defendant to take advantage of the _apices litigandi_: against such objections _every possible presumption ought to be made which ingenuity can suggest_. How disgraceful would it be to the administration of justice to allow chicane to obstruct right!"[75] This observation of Lord Mansfield applies equally to every means by which, indirectly as well as directly, the cause may fail upon any other principles than those of its merits. He thinks that all the resources of ingenuity ought to be employed to baffle chicane, not to support it. The case in which Lord Mansfield has delivered this sentiment is merely a civil one. In civil causes of _meum et tuum_, it imports little to the commonwealth, whether _t.i.tus_ or _Maevius_ profits of a legacy, or whether _John a Nokes_ or _John a Stiles_ is seized of the manor of _Dale_. For which reason, in many cases, the private interests of men are left by courts to suffer by their own neglects and their own want of vigilance, as their fortunes are permitted to suffer from the same causes in all the concerns of common life. But in crimes, where the prosecution is on the part of the public, (as all criminal prosecutions are, except appeals,) the public prosecutor ought not to be considered as a plaintiff in a cause of _meum et tuum_; nor the prisoner, in such a cause, as a common defendant. In such a cause the state itself is highly concerned in the event: on the other hand, the prisoner may lose life, which all the wealth and power of all the states in the world cannot restore to him. Undoubtedly the state ought not to be weighed against justice; but it would be dreadful indeed, if causes of such importance should be sacrificed to petty regulations, of mere secondary convenience, not at all adapted to such concerns, nor even made with a view to their existence. Your Committee readily adopts the opinion of the learned Ryder, that it would be better, if there were no such rules, than that there should be no exceptions to them. Lord Hardwicke declared very properly, in the case of the Earl of Chesterfield against Sir Abraham Janssen, "that political arguments, in the fullest sense of the word, as they concerned the government of a nation, must be, and always have been, of great weight in the consideration of this court. Though there be no _dolus malus_ in contracts, with regard to other persons, yet, if the rest of mankind are concerned as well as the parties, it may be properly said, it regards the public utility."[76] Lord Hardwicke laid this down in a cause of _meum et tuum_, between party and party, where the public was concerned only remotely and in the example,--not, as in this prosecution, when the political arguments are infinitely stronger, the crime relating, and in the most eminent degree relating, to the public.

One case has happened since the time which is limited by the order of the House for this Report: it is so very important, that we think ourselves justified in submitting it to the House without delay. Your Committee, on the supposed rules here alluded to, has been prevented (as of right) from examining a witness of importance in the case, and one on whose supposed knowledge of his most hidden transactions the prisoner had himself, in all stages of this business, as the House well knows, endeavored to raise presumptions in favor of his cause. Indeed, it was his princ.i.p.al, if not only justification, as to the _intention_, in many different acts of corruption charged upon him. The witness to whom we allude is Mr. Larkins. This witness came from India after your Committee had closed the evidence of this House in chief, and could not be produced before the time of the reply. Your Committee was not suffered to examine him,--not, as they could find, on objections to the particular question as improper, but upon some or other of the general grounds (as they believe) on which Mr. Hastings resisted any evidence from him. The party, after having resisted his production, on the next sitting day admitted him, and by consent he was examined. Your Committee entered a protest on the minutes in favor of their right. Your Committee contended, and do contend, that, by the Law of Parliament, whilst the trial lasts, they have full right to call new evidence, as the circ.u.mstances may afford and the posture of the cause may demand it.

This right seems to have been a.s.serted by the Managers for the Commons in the case of Lord Stafford, 32 Charles II.[77] The Managers in that case claimed it as the right of the Commons to produce witnesses for the purpose of fortifying their former evidence. Their claim was admitted by the court. It is an adjudged case in the Law of Parliament. Your Committee is well aware that the notorious perjury and infamy of the witnesses in the trial of Lord Stafford has been used to throw a shade of doubt and suspicion on all that was transacted on that occasion. But there is no force in such an objection. Your Committee has no concern in the defence of these witnesses, nor of the Lords who found their verdict on such testimony, nor of the morality of those who produced it. Much may be said to palliate errors on the part of the prosecutors and judges, from the heat of the times, arising from the great interests then agitated. But it is plain there may be perjury in witnesses, or even conspiracy unjustly to prosecute, without the least doubt of the legality and regularity of the proceedings in any part. This is too obvious and too common to need argument or ill.u.s.tration. The proceeding in Lord Stafford's case never has, now for an hundred and fourteen years, either in the warm controversies of parties, or in the cool disquisitions of lawyers or historians, been questioned. The perjury of the witnesses has been more doubted at some periods than the regularity of the process has been at any period. The learned lawyer who led for the Commons in that impeachment (Serjeant Maynard) had, near forty years before, taken a forward part in the great cause of the impeachment of Lord Strafford, and was, perhaps, of all men then in England, the most conversant in the law and usage of Parliament. Jones was one of the ablest lawyers of his age. His colleagues were eminent men.

In the trial of Lord Strafford, (which has attracted the attention of history more than any other, on account of the importance of the cause itself, the skill and learning of the prosecutors, and the eminent abilities of the prisoner,) after the prosecutors for the Commons had gone through their evidence on the articles, after the prisoner had also made his defence, either upon each severally, or upon each body of articles as they had been collected into one, and the Managers had in the same manner replied, when, previous to the general concluding reply of the prosecutors, the time of the general summing up (or recollection, as it was called) of the whole evidence on the part of Lord Strafford arrived, the Managers produced new evidence. Your Committee wishes to call the particular attention of the House to this case, as the contest between the parties did very nearly resemble the present, but princ.i.p.ally because the sense of the Lords on the Law of Parliament, in its proceedings with regard to the reception of evidence, is there distinctly laid down: so is the report of the Judges, relative to the usage of the courts below, full of equity and reason, and in perfect conformity with the right for which we contended in favor of the public, and in favor of the Court of Peers itself. The matter is as follows.

Your Committee gives it at large.

"After this, the Lord Steward adjourned this House to Westminster Hall; and the Peers being all set there in their places, the Lord Steward commanded the Lieutenant of the Tower to bring forth the Earl of Strafford to the bar; which being done, the Lord Steward signified that both sides might make a recollection of their evidence, and the Earl of Strafford to begin first.

"Hereupon Mr. Glynn desired that before the Earl of Strafford began, that the Commons might produce two witnesses to the fifteenth and twenty-third articles, to prove that there be two men whose names are Berne; and so a mistake will be made clear. The Earl of Strafford desired that no new witnesses may be admitted against him, unless he might be permitted to produce witnesses on his part likewise; which the Commons consented to, so the Earl of Strafford would confine himself to those articles upon which he made reservations: but he not agreeing to that, and the Commons insisting upon it, the House was adjourned to the usual place above to consider of it; and after some debate, their Lordships thought it fit that the members of the Commons go on in producing new witnesses, as they shall think fit, to the fifteenth and twenty-third articles, and that the Earl of Strafford may presently produce such witnesses as are present, and such as are not, to name them presently, and to proceed on Monday next; and also, if the Commons and Earl of Strafford will proceed upon any other articles, upon new matter, they are to name the witnesses and articles on both sides presently, and to proceed on Monday next: but both sides may waive it, if they will.

The Lord Steward adjourned this House to Westminster Hall, and, being returned thither, signified what the Lords had thought fit for the better proceeding in the business. The Earl of Strafford, upon this, desiring not to be limited to any reservation, but to be at liberty for what articles are convenient for him to fortify with new witnesses,[78]

to which the Commons not a.s.senting, and for other scruples which did arise in the case, one of the Peers did desire that the House might be adjourned, to consider further of the particulars. Hereupon the Lord Steward adjourned the House to the usual place above.

"The Lords, being come up into the House, fell into debate of the business, and, for the better informing of their judgments what was the course and common justice of the kingdom, propounded this question to the Judges: 'Whether it be according to the course of practice and common justice, before the Judges in their several courts, for the prosecutors in behalf of the King, _during the time of trial, to produce witnesses to discover the truth_, and whether the prisoner may not do the like?' The Lord Chief-Justice delivered this as the unanimous opinions of himself and all the rest of the Judges: 'That, according to the course of practice and common justice, before them in their several courts, upon trial by jury, _as long as the prisoner is at the bar, and the jury not sent away_, either side may give their evidence and examine witnesses to discover truth; and this is all the opinion as we can give concerning the proceedings before us.' Upon, some consideration after this, the House appointed the Earl of Bath, Earl of South'ton, Earl of Hartford, Earl of Ess.e.x, Earl of Bristol, and the Lord Viscount Say et Seale to draw up some reasons upon which the former order was made, which, being read as followeth, were approved of, as the order of the House: 'The gentlemen of the House of Commons did declare, that they challenge to themselves, by the common justice of the kingdom, that they, being prosecutors for the King, may bring any new proofs by witnesses during the time of the evidence being not fully concluded. The Lords, being judges, and so equal to them and the prisoner, conceived this their desire to be just and reasonable; and also that, by the same common justice, the prisoner may use the same liberty; and that, to avoid any occasions of delay, the Lords thought fit that the articles and witnesses be presently named, and such as may be presently produced to be used presently, [and such as cannot to be used on Monday,] and no further time to be given.' The Lord Steward was to let them know, that, if they will on both sides waive the use of new witnesses, they may proceed to the recollection of their evidence on both sides; if both sides will not waive it, then the Lord Steward is to read the precedent order; and if they will not proceed then, this House is to adjourn and rise."[79]

By this it will appear to the House how much this exclusion of evidence, _brought for the discovery of truth_, is unsupported either by Parliamentary precedent or by the rule as understood in the Common Law courts below; and your Committee (protesting, however, against being bound by any of the technical rules of inferior courts) thought, and think, they had a right to see such a body of precedents and arguments for the rejection of evidence during trial, in some court or other, before they were in this matter stopped and concluded.

Your Committee has not been able to examine every criminal trial in the voluminous collection of the State Trials, or elsewhere; but having referred to the most laborious compiler of law and equity, Mr. Viner, who has allotted a whole volume to the t.i.tle of Evidence, we find but one ruled case in a trial at Common Law, before or since, where new evidence for the discovery of truth has been rejected, as not being in due time. "A privy verdict had been given in B. R. 14 Eliz. for the defendant; but afterwards, before the inquest gave their verdict openly, the plaintiff prayed that he might give more evidence to the jury, he having (as it seemed) discovered that the jury had found against him: but the Justices would not admit him to do so; but after that Southcote J. had been in C.B. to ask the opinion of the Justices there, they took the verdict."[80] In this case the offer of new evidence was not during the trial. The trial was over; the verdict was actually delivered to the Judge; there was also an appearance that the discovery of the actual finding had suggested to the plaintiff the production of new evidence.

Yet it appeared to the Judges so strong a measure to refuse evidence, whilst any, even formal, appearance remained that the trial was not closed, that they sent a Judge from the bench into the Common Pleas to obtain the opinion of their brethren there, before they could venture to take upon them to consider the time for production of evidence as elapsed. The case of refusal, taken with its circ.u.mstances, is full as strong an example in favor of the report of the Judges in Lord Strafford's case as any precedent of admittance can be.

The researches of your Committee not having furnished them with any cases in which evidence has been rejected during the trial, as being out of time, we have found some instances in which it has been actually received,--and received not to repel any new matter in the prisoner's defence, but when the prisoner had called all his witnesses, and thereby closed his defence. A remarkable instance occurred on the trial of Harrison for the murder of Dr. Clenche. The Justices who tried the cause, viz., Lord Chief-Justice Holt, and the Justices Atkins and Nevil, admitted the prosecutor to call new evidence, for no other reason but that a new witness was then come into court, who had not been in court before.[81] These Justices apparently were of the same opinion on this point with the Justices who gave their opinion in the case of Lord Stafford.

Your Committee, on this point, as on the former, cannot discover any authority for the decision of the House of Lords in the Law of Parliament, or in the law practice of any court in this kingdom.

PRACTICE BELOW.

Your Committee, not having learned that the resolutions of the Judges (by which the Lords have been guided) were supported by any authority in law to which they could have access, have heard by rumor that they have been justified upon the practice of the courts in ordinary trials by commission of Oyer and Terminer. To give any legal precision to this term of _practice_, as thus applied, your Committee apprehends it must mean, that the judge in those criminal trials has so regularly rejected a certain kind of evidence, when offered there, that it is to be regarded in the light of a case frequently determined by legal authority. If such had been discovered, though your Committee never could have allowed these precedents as rules for the guidance of the High Court of Parliament, yet they should not be surprised to see the inferior judges forming their opinions on their own confined practice.

Your Committee, in their inquiry, has found comparatively few reports of criminal trials, except the collection under the t.i.tle of "State 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 const.i.tuted 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 ma.s.s 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 s.p.a.ce 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 inst.i.tution 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 part.i.tion of that judicature which the law has left to them whole, supreme, uncontrolled, and final.

This final and independent judicature, because it is final and independent, ought to be very cautious with regard to the rejection of evidence. If incompetent evidence is received by them, there is nothing to hinder their judging upon it afterwards according to its value: it may have no weight in their judgment. But if, upon advice of others, they previously reject information necessary to their proper judgment, they have no intermediate means of setting themselves right, and they injure the cause of justice without any remedy. Against errors of juries there is remedy by a new trial. Against errors of judges there is remedy, in civil causes, by demurrer and bills of exceptions; against their final mistake there is remedy by writ of error, in courts of Common Law. In Chancery there is a remedy by appeal. If they wilfully err in the rejection of evidence, there was formerly the terror existing of punishment by impeachment of the Commons. But with regard to the Lords, there is no remedy for error, no punishment for a wilful wrong.

Your Committee conceives it not improbable that this apparently total and unreserved submission of the Lords to the dictates of the judges of the inferior courts (no proper judges, in any light or in any degree, of the Law of Parliament) may be owing to the very few causes of _original_ jurisdiction, and the great mult.i.tude of those of _appellate_ jurisdiction, which come before them. In cases of appeal, or of error, (which is in the nature of an appeal,) the court of appeal is obliged to judge, not by _its own_ rules, acting in another capacity, or by those which it shall choose _pro re nata_ to make, but by the rules of the inferior court from whence the appeal comes. For the fault or the mistake of the inferior judge is, that he has not proceeded, as he ought to do, according to the law which he was to administer; and the correction, if such shall take place, is to compel the court from whence the appeal comes to act as originally it ought to have acted, according to law, as the law ought to have been understood and practised in that tribunal. The Lords, in such cases of necessity, judge on the grounds of the law and practice of the courts below; and this they can very rarely learn with precision, but from the body of the Judges. Of course much deference is and ought to be had to their opinions. But by this means a confusion may arise (if not well guarded against) between what they do in their _appellate_ jurisdiction, which is frequent, and what they ought to do in their _original_ jurisdiction, which is rare; and by this the whole original jurisdiction of the Peers, and the whole law and usage of Parliament, at least in their virtue and spirit, may be considerably impaired.

After having thus submitted to the House the general tenor of the proceedings in this trial, your Committee will, with all convenient speed, lay before the House the proceedings on each head of evidence separately which has been rejected; and this they hope will put the House more perfectly in possession of the princ.i.p.al causes of the length of this trial, as well as of the injury which Parliamentary justice may, in their opinion, suffer from those proceedings.

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