large and liberal principles of evidence were more declared, and more
regularly brought into system. But they had been gradually improving;
and there are few principles of the later decisions which are not to be
found in determinations on cases prior to the time we refer to. Not to
overdo this matter, and yet to bring it with some degree of clearness
before the House, your Committee will refer but to a few authorities,
and those which seem most immediately to relate to the nature of the
cause intrusted to them. In Michaelmas, 11 Will. III., the King _v._ the
Warden of the Fleet, a witness, who had really been a prisoner, and
voluntarily suffered to escape, was produced to prove the escape. To the
witness it was objected, that he had given a bond to be a true prisoner,
which he had forfeited by escaping: besides, he had been retaken. His
testimony was allowed; and by the Court, among other things, it was
said, in secret transactions, if any of the parties concerned are not to
be, for the necessity of the third, admitted as evidence, it will be
impossible to detect the practice: as in cases of the Statute of Hue and
Cry, the party robbed shall be a witness to charge the hundred; and in
the case of Cooke _v._ Watts in the Exchequer, where one who had been
prejudiced by the will was admitted an evidence to prove it forged.[64]
So in the case of King _v._ Parris,[65] where a feme covert was admitted
as a witness for _fraudulently_ drawing her in, when sole, to give a
warrant of attorney for confessing a judgment on an unlawful
consideration, whereby execution was sued out against her husband, and
Holt, Chief-Justice, held that a feme covert could not, by law, be a
witness to convict one on an information; yet, in Lord Audley's case, it
being a rape on her person, she was received to give evidence against
him, and the Court concurred with him, because it was the best evidence
the nature of the thing would allow. This decision of Holt refers to
others more early, and all on the same principle; and it is not of this
day that this one great principle of eminent public expedience, this
moral necessity, "that crimes should not escape with impunity,"[66] has
in all cases overborne all the common juridical rules of evidence,--it
has even prevailed over the first and most natural construction of acts
of Parliament, and that in matters of so penal a nature as high treason.
It is known that statutes made, not to open and enlarge, but on fair
grounds to straiten proofs, require two witnesses in cases of high
treason. So it was understood, without dispute and without distinction,
until the argument of a case in the High Court of Justice, during the
Usurpation. It was the case of the Presbyterian minister, Love, tried
for high treason against the Commonwealth, in an attempt to restore the
King. In this trial, it was contended for, and admitted, that one
witness to one overt act, and one to another overt act of the same
treason, ought to be deemed sufficient.[67] That precedent, though
furnished in times from which precedents were cautiously drawn, was
received as authority throughout the whole reign of Charles II.; it was
equally followed after the Revolution; and at this day it is undoubted
law. It is not so from the natural or technical rules of construction of
the act of Parliament, but from the principles of juridical policy. All
the judges who have ruled it, all the writers of credit who have written
upon it, assign this reason, and this only,--_that treasons, being
plotted in secrecy, could in few cases be otherwise brought to
punishment_.
The same principle of policy has dictated a principle of relaxation
with regard to severe rules of evidence, in all cases similar, though of
a lower order in the scale of criminality. It is against fundamental
maxims that an accomplice should be admitted as a witness: but
accomplices are admitted from the policy of justice, otherwise
confederacies of crime could not be dissolved. There is no rule more
solid than that a man shall not entitle himself to profit by his own
testimony. But an informer, in case of highway robbery, may obtain forty
pounds to his own profit by his own evidence: this is not in consequence
of positive provision in the act of Parliament; it is a provision of
policy, lest the purpose of the act should be defeated.
Now, if policy has dictated this very large construction of an act of
Parliament concerning high treason, if the same policy has dictated
exceptions to the clearest and broadest rules of evidence in other
highly penal causes, and if all this latitude is taken concerning
matters for the greater part within our insular bounds, your Committee
could not, with safety to the larger and more remedial justice of the
Law of Parliament, admit any rules or pretended rules, unconnected and
uncontrolled by circumstances, to prevail in a trial which regarded
offences of a nature as difficult of detection, and committed far from
the sphere of the ordinary practice of our courts.
If anything of an over-formal strictness is introduced into the trial of
Warren Hastings, Esquire, it does not seem to be copied from the
decisions of these tribunals. It is with great satisfaction your
Committee has found that the reproach of "disgraceful subtleties,"
inferior rules of evidence which prevent the discovery of truth, of
forms and modes of proceeding which stand in the way of that justice the
forwarding of which is the sole rational object of their invention,
cannot fairly be imputed to the Common Law of England, or to the
ordinary practice of the courts below.
CIRCUMSTANTIAL EVIDENCE, ETC.
The rules of evidence in civil and in criminal cases, in law and in
equity, being only reason methodized, are certainly the same. Your
Committee, however, finds that the far greater part of the law of
evidence to be found in our books turns upon questions relative to civil
concerns. Civil cases regard property: now, although property itself is
not, yet almost everything concerning property and all its modifications
is, of artificial contrivance. The rules concerning it become more
positive, as connected with positive institution. The legislator
therefore always, the jurist frequently, may ordain certain methods by
which alone they will suffer such matters to be known and established;
because their very essence, for the greater part, depends on the
arbitrary conventions of men. Men act on them with all the power of a
creator over his creature. They make fictions of law and presumptions of
(_præsumptiones juris et de jure_) according to their ideas of utility;
and against those fictions, and against presumptions so created, they do
and may reject all evidence. However, even in these cases there is some
restraint. Lord Mansfield has let in a liberal spirit against the
fictions of law themselves; and he declared that he would do what in one
case[68] he actually did, and most wisely, that he would admit evidence
against a fiction of law, when the fiction militated against the policy
on which it was made.
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 circumstantial proof,--this is difficult, and requires
care and pains. The connection of the intention and the circumstances 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 circumstantial 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 circumstance, precedent, concomitant, and
subsequent, become parts of circumstantial evidence. These are in their
nature infinite, and cannot be comprehended within any rule or brought
under any classification.
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
accumulation of circumstances 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 circumstantial evidence, to take up the
circumstances 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 multitude 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
circumstantial 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 circumscribed in the production of much circumstantial 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 class 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 circumstances
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 circumstantial.
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
circumstances, 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_ circumstantial 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 circumstances, 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 circumstances, is very often
more convincing and more satisfactory than any other kind of evidence:
because it is not within the reach and compass of human abilities to
invent a train of circumstances 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 circumstances. But if
the circumstances 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 assassination, 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
circumstantial 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 circumstantial 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 passed, have been respectively
ruled to be sufficient. If, on the other hand, no circumstance 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 illustrate 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
circumstantial 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 document 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 circumstance 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 circumstance, but in
truth of one half of the circumstance,--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 circumstantial 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 document.
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 rebutting this justification, but by bringing out
all the circumstances 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 assert 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.