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.[50] It was probably from
this rigor, and from a sense of its pressure, that, at an early period
of our law, far more causes of criminal jurisdiction were carried into
the House of Lords and the Council Board, where laymen were judges, than
can or ought to be at present.
As the business of courts of equity became more enlarged and more
methodical,--as magistrates, for a long series of years, presided in the
Court of Chancery, who were not bred to the Common Law,--as commerce,
with its advantages and its necessities, opened a communication more
largely with other countries,--as the Law of Nature and Nations (always
a part of the law of England) came to be cultivated,--as an increasing
empire, as new views and new combinations of things were opened,--this
antique rigor and overdone severity gave way to the accommodation of
human concerns, for which rules were made, and not human concerns to
bend to them.
At length, Lord Hardwicke, in one of the cases the most solemnly argued,
that has been in man's memory, with the aid of the greatest learning at
the bar, and with the aid of all the learning on the bench, both bench
and bar being then supplied with men of the first form, declared from
the bench, and in concurrence with the rest of the Judges, and with the
most learned of the long robe, the able council on the side of the old
restrictive principles making no reclamation, "that the judges and sages
of the law have laid it down that there is but ONE general rule of
evidence,--_the best that the nature of the case will admit_."[51] This,
then, the master rule, that governs all the subordinate rules, does in
reality subject itself and its own virtue and authority _to the nature
of the case_, and leaves no rule at all of an independent, abstract, and
substantive quality. Sir Dudley Ryder, (then Attorney-General,
afterwards Chief-Justice,) in his learned argument, observed, that "it
is extremely proper that there should be _some_ general rules in
relation to evidence; but _if exceptions were not allowed to them, it
would be better to demolish all the general rules_. There is no general
rule without exception that we know of but this,--that _the best
evidence shall be admitted which the nature of the case will afford_. I
will show that rules as general as this are broke in upon _for the sake
of allowing evidence_. There is no rule that seems more binding than
that a man shall not be admitted an evidence in his own case, and yet
the Statute of Hue and Cry is an exception. A man's books are allowed
to be evidence, or, which is in substance the same, his servant's books,
_because the nature of the case requires it_,--as in the case of a
brewer's servants. Another general rule, that a wife cannot be witness
against her husband, has been broke in upon in cases of treason. Another
exception to the general rule, that a man may not be examined without
oath,--the last words of a dying man are given in evidence in the case
of murder." Such are the doctrines of this great lawyer.
Chief-Justice Willes concurs with Lord Hardwicke as to dispensing with
strict rules of evidence. "Such evidence," [he says,] "is to be admitted
as the _necessity_ of the case will allow of: as, for instance, a
marriage at Utrecht, certified under the seal of the minister there, and
of the said town, and that they cohabited together as man and wife, was
held to be sufficient proof that they were married." This learned judge
(commenting upon Lord 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_.[52]
But to proceed with Lord Hardwicke. He observes, that "a tradesman's
books" (that is, the acts of the party interested himself) "are admitted
as evidence, though no _absolute necessity_, but by reason of a
_presumption_ of necessity only, _inferred_ from the nature of
commerce." "No rule," continued Lord Hardwicke, "can be more settled
than that testimony is not to be received but upon oath"; but he lays it
down, that an oath itself may be dispensed with. "There is another
instance," says he, "where the lawful oath may be dispensed with,--where
our courts admit evidence for the Crown without oath."
In the same discussion, the Chief-Baron (Parker) cited cases in which
_all_ the rules of evidence had given way. "There is not a more general
rule," says he, "than that hearsay cannot be admitted, nor husband and
wife as witnesses against each other; and yet it is _notorious_ that
from necessity they have been allowed,--not an _absolute_ necessity, but
a _moral_ one."
It is further remarkable, in this judicial argument, that exceptions are
allowed not only to rules of evidence, but that the rules of evidence
themselves are not altogether the same, where the subject-matter varies.
The Judges have, to facilitate justice, and to favor commerce, even
adopted the rules of _foreign_ laws. They have taken for granted, and
would not suffer to be questioned, the regularity and justice of the
proceedings of foreign courts; and they have admitted them as evidence,
not only of the fact of the decision, but of the right as to its
legality. "Where there are foreign parties interested, and in commercial
matters, the rules of evidence are not quite the same as in other
instances in courts of justice: the case of Hue and Cry, Brownlow, 47. A
feme covert is not a lawful witness against her husband, except in cases
of treason, but has been admitted in civil cases.[53] The testimony of
a public notary is evidence by the law of France: contracts are made
before a public notary, and no other witness necessary. I should think
it would be no doubt at all, if it came in question here, whether this
would be a valid contract, but a testimony from persons of that credit
and reputation would be received as a very good proof in foreign
transactions, and would authenticate the contract."[54]
These cases show that courts always govern themselves by these rules in
cases of foreign transactions. To this principle Lord Hardwicke accords;
and enlarging the rule of evidence by the nature of the subject and the
exigencies of the case, he lays it down, "that it is a common and
_natural_ presumption, that persons of the Gentoo religion should be
principally apprised of facts and transactions in their own country. As
the English have only a factory in this country, (for it is in the
empire of the Great Mogul,) if we should admit this evidence [Gentoo
evidence on a Gentoo oath], it would be agreeable to the genius of the
law of England." For this he cites the proceedings of our Court of
Admiralty, and adopts the author who states the precedent, "that this
Court will give credit to the sentence of the Court of Admiralty in
France, and take it to be according to right, and will not examine their
proceedings: for it would be found very inconvenient, if one kingdom
should, by peculiar laws, correct the judgments and proceedings of
another kingdom." Such is the genius of the law of England, that these
two principles, of the general moral necessities of things, and the
nature of the case, overrule every other principle, even those rules
which seem the very strongest. Chief-Baron Parker, in answer to an
objection made against the infidel deponent, "that the plaintiff ought
to have shown that he could not have the evidence of Christians," says,
"that, repugnant to natural justice, in the Statute of Hue and Cry, the
robbed is admitted to be witness of the robbery, as _a moral or presumed
necessity is sufficient_." The same learned magistrate, pursuing his
argument in favor of liberality, in opening and enlarging the avenues to
justice, does not admit that "the authority of one or two cases" is
valid against reason, equity, and convenience, the vital principles of
the law. He cites Wells _v._ Williams, 1 Raymond, 282, to show that the
necessity of trade has mollified the too rigorous rules of the old law,
in their restraint and discouragement of aliens. "A Jew may sue at
_this_ day, but _heretofore he could not_, for then they were looked
upon as enemies, but now commerce has taught the world more humanity;
and therefore held that an alien enemy, commorant here by the license of
the King, and under his protection, may maintain a debt upon a bond,
though he did not come with safe-conduct." So far Parker, concurring
with Raymond. He proceeds:--"It was objected by the defendant's counsel,
that this is a novelty, and that what never has been done ought not to
be done." The answer is, "_The law of England is not confined to
particular cases, but is much more governed by reason than by any one
case whatever._ The true rule is laid down by Lord Vaughan, fol. 37,
38. 'Where the law,' saith he, 'is _known and clear_, the Judges must
determine as the law is, without regard to the inequitableness or
inconveniency: these defects, if they happen in the law, can only be
remedied by Parliament. But where the law is doubtful and not clear, the
Judges ought to interpret the law to be as is most consonant to equity,
and what is least inconvenient.'"
These principles of equity, convenience, and natural reason Lord
Chief-Justice Lee considered in the same ruling light, not only as
guides in matter of interpretation concerning law in general, but in
particular as controllers of the whole law of evidence, which, being
artificial, and made for convenience, is to be governed by that
convenience for which it is made, and is to be wholly subservient to the
stable principles of substantial justice, "I do apprehend," said that
Chief-Justice, "that the rules of evidence are to be considered as
_artificial_ rules, framed by men for _convenience in courts of
justice_. This is a case that ought to be looked upon in that light; and
I take it that considering evidence in this way [viz. according to
natural justice] _is agreeable to the genius of the law of England_."
The sentiments of Murray, then Solicitor-General, afterwards Lord
Mansfield, are of no small weight in themselves, and they are authority
by being judicially adopted. His ideas go to the growing melioration of
the law, by making its liberality keep pace with the demands of justice
and the actual concerns of the world: not restricting the infinitely
diversified occasions of men and the rules of natural justice within
artificial circumscriptions, but conforming our jurisprudence to the
growth of our commerce and of our empire. This enlargement of our
concerns he appears, in the year 1744, almost to have foreseen, and he
lived to behold it. "The arguments on the other side," said that great
light of the law, (that is, arguments against admitting the testimony in
question from the novelty of the case,) "prove nothing. Does it follow
from thence, that no witnesses can be examined in a case that never
specifically existed before, or that an action cannot be brought in a
case that never happened before? _Reason_ (being stated to be the first
ground of all laws by the author of the book called 'Doctor and
Student') must determine the case. Therefore the only question is,
Whether, _upon principles of reason, justice, and convenience_, this
witness be admissible? Cases in law depend upon the _occasions_ which
gave rise to them. All occasions do not arise at once: now a particular
species of Indians appears; hereafter another species of Indians may
arise. A statute can seldom take in all cases. Therefore the Common Law,
that works itself pure by rules drawn from the fountain of justice, is
for this reason superior to an act of Parliament."[55]
From the period of this great judgment to the trial of Warren Hastings,
Esquire, the law has gone on continually working itself pure (to use
Lord Mansfield's expression) by rules drawn from the fountain of
justice. "General rules," said the same person, when he sat upon the
bench, "are wisely established for attaining justice with ease,
certainty, and dispatch; but the great end of them being _to do
justice_, the Court will see that it be really obtained. The courts have
been more liberal of late years in their determinations, and have more
endeavored to attend to the _real justice_ of the case than formerly."
On another occasion, of a proposition for setting aside a verdict, he
said, "This seems to be the true way to come at justice, and what we
therefore ought to do; for the true text is, _Boni judicis est ampliare
justitiam_ (not _jurisdictionem_, as has been often cited)."[56] In
conformity to this principle, the supposed rules of evidence have, in
late times and judgments, instead of being drawn to a greater degree of
strictness, been greatly relaxed.
"_All evidence is according to the subject-matter to which it is
applied._ There is a great deal of difference between length of time
that operates as a bar to a claim and that which is used only by way of
evidence. Length of time used merely by way of evidence may be left to
the consideration of the jury, to be credited or not, or to draw their
inferences one way or the other, according to circumstances. _I do not
know an instance in which proof may not be supplied._"[57] In all cases
of evidence Lord Mansfield's maxim was, _to lean to admissibility_,
leaving the objections which were made to competency to go to credit,
and to be weighed in the minds of the jury after they had heard it.[58]
In objections to wills, and to the testimony of witnesses to them, he
thought "it clear that the Judges ought to lean _against_ objections to
the formality."[59]
Lord Hardwicke had before declared, with great truth, "that the
boundaries of what goes to the credit and what to the competency _are
very nice, and the latter carried too far_"; and in the same case he
said, "that, unless the objection appeared to him to carry a strong
danger of perjury, and some apparent advantage might accrue to the
witness, he was always inclined to let it go to his credit, only _in
order to let in a proper light to the case, which would otherwise be
shut out_; and _in a doubtful case_, he said, it was generally his
custom _to admit the evidence_, and give such directions to the jury as
the nature of the case might require."[60]
It is a known rule of evidence, that an interest in the matter to be
supported by testimony disqualifies a witness; yet Lord Mansfield held,
"that _nice_ objections to a remote interest which could not be paid or
released, though they held in other cases, were not allowed to
disqualify a witness to a will, as parishioners might have [prove?] a
devise to the use of the poor of the parish forever." He went still
nearer, and his doctrine tends so fully to settle the principles of
departure from or adherence to rules of evidence, that your Committee
inserts part of the argument at large. "The disability of a witness from
interest is very different from a positive incapacity. If a deed must be
acknowledged before a judge or notary public, every other person is
under a positive incapacity to authenticate it; but objections of
interest are deductions from natural reason, and proceed upon a
presumption of too great a bias in the mind of the witness, and the
public utility of rejecting partial testimony. Presumptions stand no
longer than till the contrary is proved. The presumption of bias may be
taken off by showing the witness has a [as?] great or a greater
interest the other way, or that he has given it up. The presumption of
public utility may be answered by showing that it would be very
inconvenient, under the particular circumstances, not to receive such
testimony. Therefore, from the course of business, necessity, and other
reasons of expedience, _numberless exceptions_ are allowed to the
_general_ rule."[61]
These being the principles of the latter jurisprudence, the Judges have
suffered no positive rule of evidence to counteract those principles.
They have even suffered subscribing witnesses to a will which recites
the soundness of mind in the testator to be examined to prove his
insanity, and then the court received evidence to overturn that
testimony and to destroy the credit of those witnesses. They were five
in number, who attested to a will and codicil. They were admitted to
annul the will they had themselves attested. Objections were taken to
the competency of one of the witnesses in support of the will against
its subscribing witnesses: 1st, That the witness was an executor in
trust, and so liable to actions; 2dly, As having acted under the trust,
whereby, if the will were set aside, he would be liable to answer for
damages incurred by the sale of the deceased's chambers to a Mr.
Frederick. Mr. Frederick offered to submit to a rule to release, for the
sake of public justice. Those who maintained the objection cited
Siderfin, a reporter of much authority, 51, 115, and 1st Keble, 134.
Lord Mansfield, Chief-Justice, did not controvert those authorities; but
in the course of obtaining substantial justice he treated both of them
with equal contempt, though determined by judges of high reputation.
His words are remarkable: "We do not _now_ sit here to take our rules of
evidence from Siderfin and Keble." He overruled the objection upon more
recent authorities, which, though not in similar circumstances, he
considered as within the reason. The Court did not think it necessary
that the witness should release, as he had offered to do. "It appeared
on this trial," says Justice Blackstone, "that a black conspiracy was
formed to set aside the gentleman's will, without any foundation
whatever." A prosecution against three of the testamentary witnesses was
recommended, who were afterwards convicted of perjury.[62] Had strict
formalities with regard to evidence been adhered to in any part of this
proceeding, that very black conspiracy would have succeeded, and those
black conspirators, instead of receiving the punishment of their crimes,
would have enjoyed the reward of their perjury.
Lord Mansfield, it seems, had been misled, in a certain case, with
regard to precedents. His opinion was against the reason and equity of
the supposed practice, but he supposed himself not at liberty to give
way to his own wishes and opinions. On discovering his error, he
considered himself as freed from an intolerable burden, and hastened to
undo his former determination. "There are no precedents," said he, with
some exultation, "which stand in the way of our determining _liberally_,
_equitably_, and according to the _true_ intention of the parties." In
the same case, his learned assessor, Justice Wilmot, felt the same
sentiments. His expressions are remarkable:--"Courts of law ought to
concur with courts of equity in the execution of those powers which are
very convenient to be inserted in settlements; and they ought not to
listen to nice distinctions that savor of the schools, but to be guided
by true good sense and manly reason. After the Statute of Uses, it is
much to be lamented that the courts of Common Law had not adopted all
the rules and maxims of courts of equity. This would have prevented the
absurdity of receiving costs in one court and paying them in
another."[63]
Your Committee does not produce the doctrine of this particular case as
directly applicable to their charge, no more than several of the others
here cited. We do not know on what precedents or principles the evidence
proposed by us has been deemed inadmissible by the Judges; therefore
against the grounds of this rejection we find it difficult directly to
oppose anything. These precedents and these doctrines are brought to
show the general temper of the courts, their growing liberality, and the
general tendency of all their reasonings and all their determinations to
set aside all such technical subtleties or formal rules, which might
stand in the way of the discovery of truth and the attainment of
justice. The cases are adduced for the principles they contain.