The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12)

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 aptitude directly or circumstantially 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, passages in an accredited institute, 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."37 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."38 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.39 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.40

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.41 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 latitude 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 vivâ voce witness is denied to be competent) in which a judge, possessing an entire judicial capacity, can determine by anticipation 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.42

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 classical Civil Law, by the followers of the Stoic school.43 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.44 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."45 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 passage 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."46

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.47 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 them48 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 circumstances 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 pronounce 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 documents, 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 passages 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."49 And the same writer, in another passage, 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."50

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) circumstantial, 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 latitude may perhaps be sought in this circumstance, 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.51 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."52 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 Coke'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 Coke 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 accumulated upon one another, and are admitted from necessity, to accommodate human affairs, and to prevent that which courts are by every possible means instituted 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 fictitious 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.53