Parliament, preëminently superior to all the rest, there is no claim
made which the inferior courts do not make, each with regard to itself.
It is well known that the rules of proceedings in these courts vary, and
some of them very essentially; yet the usage of each court is the law of
the court, and it would be vain to object to any rule in any court,
that it is not the rule of another court. For instance: as a general
rule, the Court of King's Bench, on trials by jury, cannot receive
depositions, but must judge by testimony _vivâ voce_. The rule of the
Court of Chancery is not only not the same, but it is the reverse, and
Lord Hardwicke ruled accordingly. "The constant and established
proceedings of this Court," said this great magistrate, "are on written
evidence, like the proceedings on the Civil and Canon Law. This is the
course of the Court, and the course of the Court is the law of the
Court."[34]
Your Managers were convinced that one of the principal reasons for which
this cause was brought into Parliament was the danger that in inferior
courts their rule would be formed naturally upon their ordinary
experience, and the exigencies of the cases which in ordinary course
came before them. This experience, and the exigencies of these cases,
extend little further than the concerns of a people comparatively in a
narrow vicinage, a people of the same or nearly the same language,
religion, manners, laws, and habits: with them an intercourse of every
kind was easy.
These rules of law in most cases, and the practice of the courts in all,
could not be easily applicable to a people separated from Great Britain
by a very great part of the globe,--separated by manners, by principles
of religion, and of inveterate habits as strong as nature itself, still
more than by the circumstance of local distance. Such confined and
inapplicable rules would be convenient, indeed, to oppression, to
extortion, bribery, and corruption, but ruinous to the people, whose
protection is the true object of all tribunals and of all their rules.
Even English judges in India, who have been sufficiently tenacious of
what they considered as the rules of English courts, were obliged in
many points, and particularly with regard to evidence, to relax very
considerably, as the civil and politic government has been obliged to do
in several other cases, on account of insuperable difficulties arising
from a great diversity of manners, and from what may be considered as a
diversity even in the very constitution of their minds,--instances of
which your Committee will subjoin in a future Appendix.
Another great cause why your Committee conceived this House had chosen
to proceed in the High Court of Parliament was because the inferior
courts were habituated, with very few exceptions, to try men for the
abuse only of their individual and natural powers, which can extend but
a little way.[35] Before them, offences, whether of fraud or violence or
both, are, for much the greater part, charged upon persons of mean and
obscure condition. Those unhappy persons are so far from being supported
by men of rank and influence, that the whole weight and force of the
community is directed against them. In this case, they are in general
objects of protection as well as of punishment; and the course perhaps
ought, as it is _commonly_ said to be, not to suffer anything to be
applied to their conviction beyond what the strictest rules will permit.
But in the cause which your Managers have in charge the circumstances
are the very reverse to what happens in the cases of mere personal
delinquency which come before the [inferior] courts. These courts have
not before them persons who act, and who justify their acts, by the
nature of a despotical and arbitrary power. The abuses stated in our
impeachment are not those of mere individual, natural faculties, but the
abuses of civil and political authority. The offence is that of one who
has carried with him, in the perpetration of his crimes, whether of
violence or of fraud, the whole force of the state,--who, in the
perpetration and concealment of offences, has had the advantage of all
the means and powers given to government for the detection and
punishment of guilt and for the protection of the people. The people
themselves, on whose behalf the Commons of Great Britain take up this
remedial and protecting prosecution, are naturally timid. Their spirits
are broken by the arbitrary power usurped over them, and claimed by the
delinquent as his law. They are ready to flatter the power which they
dread. They are apt to look for favor [from their governors] by covering
those vices in the predecessor which they fear the successor may be
disposed to imitate. They have reason to consider complaints as means,
not of redress, but of aggravation to their sufferings; and when they
shall ultimately hear that the nature of the British laws and the rules
of its tribunals are such as by no care or study either they, or even
the Commons of Great Britain, who take up their cause, can comprehend,
but which in effect and operation leave them unprotected, and render
those who oppress them secure in their spoils, they must think still
worse of British justice than of the arbitrary power of the Company's
servants which hath been exercised to their destruction. They will be
forever, what for the greater part they have hitherto been, inclined to
compromise with the corruption of the magistrates, as a screen against
that violence from which the laws afford them no redress.
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."[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 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.[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 classical 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 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."[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 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."[48] 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._"[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) 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.