A man's books are allowed to be evi,
dence, 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.
dence, 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.
Edmund Burke
IV.
p.
204.
An.
1641.
Rush.
Trial of
Lord Strafford, p. 430.
t Lords' Journals, Vol. IV. p. 210.
$ Id. Vol. XXII. p. 536 to 546. An. 1725.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 67
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.
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. t 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
vivd 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
* Lords' Journals, Vol. XXII. p. 541.
t Id. Vol. XXVII. p. 63, 65. An. 1746.
? ? ? ? 68 IMPEACHMENT OF WARREN HASTINGS.
it, of course he will judge what weight it is to have
upon his mind, or whether it ought not entirely to he
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
wheince 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. *
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
* Gilbert's Law of Evidence, p. 23.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 69
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. * 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. t 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. "j 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 opin* Gravina, 84, 85.
4 Atkyns, Rep. Vol. I. p. 37, Omichund versus Barker.
? f Id. 90 usque ad 100.
? ? ? 70 IMPEACHMENT OF WARREN HASTINGS.
ions, 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, - 4' His Sacred Majesty, Hadrian,
issued a rescript to Vivius Varus, Lieutenant of Cilitia, 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 wit
? ? ? ? REPORT ON THE LORDS' JOURNALS. 71
ilesses, 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. " *
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. t 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
* Digest. Lib. XXII. Tit. 5. t Calvinus, voce Prcesumptio.
? ? ? ? 72 IMPEACHMENT OF WARREN HASTINGS.
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* 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 Iupanari.
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, sedprobatio, "The failure is not in the law, but in the
proof. " But if other grounds of presumption appear,
* Bartolus.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 73
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
? ? ? ? 74 IMPEACHMENT OF WARREN HASTINGS.
-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. " * 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. " t
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 all 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
* Lib. II. Obs. 149, ~ 9. t Lib. I. Obs. 91, ~ 7.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 75
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 conitinued cultivation of equity as a science,
had not then so fully prepared them. In those times
? ? ? ? 76 IMPEACHMENT OF WARREN HASTINGS.
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. *
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
*Antiqua jurisprudentia aspera quidem illa, tenebricosa, et tristis,
non tain in eequitate quam in verborum superstitione fundata, eaque
Ciceronis aetatem fere attigit, mansitque annos circiter CCCL. Qua3
hanc excepit, viguitque annos fere septuaginta novem, superiori longe
humanior; quippe que magis utilitate cornmuni, quam potestate verborum, negotia moderaretur. - Gravina, p. 86.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 77
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. " 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 inll
his own case, and yet the Statute of Hue and Cry is
* Omiclund v. Barker, Atk. I.
? ? ? ? 78 IMPEACHMENT OF WARREN HASTINGS.
an exception.
A man's books are allowed to be evi,
dence, 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
? ? ? ? REPORT ON THE LORDS' JOURNALS. 79
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 neces. sity,
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. *
But to proceed with Lord Hardwicke. He observes, that "a tradesman's books" (that iq, the acts
of the party interested himself) "are admitted as
evidence, though no absolute necessity, but by rea* Gaill, Lib. II. Obs. 20, ~ 5.
? ? ? ? 80 IMPEACHMENT OF WARREN HASTINGS.
son of a presumption of necessity only, inferred from
the nature of commerce. " "No rule," continued
Lord HIardwicke, "can be more settled than that
testimony is not to be received but upon oath";
but he lays it down, that all 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 with
out 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 ad.
mitted 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 IIue 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
? ? ? ? REPORT ON THE LORDS' JOURNALS. 81
cases. * 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. " t
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 pro. * N. B. - In some criminal cases also, though not of treason, husband is admitted to prove an assault upon his wife, for the King, ruled by Raymond, Chief-Justice, Trin. 11th Geo. , King v. Azire.
And for various other exceptions see Buller's Nisi Prius, 286, 287. .
t Cro. Charl. 365.
VOL. XI. 6
? ? ? ? 82 IMPEACHMENT OF WARREN HASTINGS.
ceedings 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, inl 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 pro-,ceeds: -- " 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 eases,
but is much more governed by reason than by any one
case whatever. The triue rule is laid down by Lord
? ? ? ? REPORT ON THE LORDS' JOURNALS. 83
Vaugllan, 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 Lde considered in the same ruling light, not only as guides in matter of
interpretation concerning law in general, but in par-k
ticular 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
? ? ? ? 84 IMPEACHMENT OF WARREN HASTINGS.
empire. This enlargement of our concerns he ap
pears, in the year 1744, almost to have foreseen, and
he lived to behold it. " The arguments on the qther
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 call 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. "
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 determi* Omichund v. Barker, 1st Atkyns, ut supra.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 85
nations. 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). " In conformity to this principle, the supposed rules of evidence have, ill 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. " t 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. t 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. "~
Lord Hardwicke had before declared, with great
- Rex v. Philips, Burrow, Vol. I. p. 301, 302, 304.
t Mayor of Hull v. Horner, Cowper's Reports, 109. : Abrahams v. Bunn, Burrows Vol. IV. p. 2254. The whole case
well worth reading.
~ Wyndham v. Chetwynd, Burrow, Vol. I. p. 421.
? ? ? ? 86 IMPEACHMENT OF WARREN HASTINGS.
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 t1he 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. "*
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 6ther 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. King v. Bray.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 87
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. "*
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 Ist 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 repu* Wyndham v. Chetwynd.
? ? ? ? 88 IMPEACHMENT OF WARREN HASTINGS.
tation. 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
Conrt 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. * 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. OnX discovering his error, he considered himself as
freed from an intolerable burden, and hastened to
undo his former determination.
Lord Strafford, p. 430.
t Lords' Journals, Vol. IV. p. 210.
$ Id. Vol. XXII. p. 536 to 546. An. 1725.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 67
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.
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. t 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
vivd 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
* Lords' Journals, Vol. XXII. p. 541.
t Id. Vol. XXVII. p. 63, 65. An. 1746.
? ? ? ? 68 IMPEACHMENT OF WARREN HASTINGS.
it, of course he will judge what weight it is to have
upon his mind, or whether it ought not entirely to he
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
wheince 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. *
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
* Gilbert's Law of Evidence, p. 23.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 69
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. * 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. t 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. "j 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 opin* Gravina, 84, 85.
4 Atkyns, Rep. Vol. I. p. 37, Omichund versus Barker.
? f Id. 90 usque ad 100.
? ? ? 70 IMPEACHMENT OF WARREN HASTINGS.
ions, 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, - 4' His Sacred Majesty, Hadrian,
issued a rescript to Vivius Varus, Lieutenant of Cilitia, 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 wit
? ? ? ? REPORT ON THE LORDS' JOURNALS. 71
ilesses, 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. " *
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. t 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
* Digest. Lib. XXII. Tit. 5. t Calvinus, voce Prcesumptio.
? ? ? ? 72 IMPEACHMENT OF WARREN HASTINGS.
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* 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 Iupanari.
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, sedprobatio, "The failure is not in the law, but in the
proof. " But if other grounds of presumption appear,
* Bartolus.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 73
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
? ? ? ? 74 IMPEACHMENT OF WARREN HASTINGS.
-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. " * 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. " t
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 all 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
* Lib. II. Obs. 149, ~ 9. t Lib. I. Obs. 91, ~ 7.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 75
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 conitinued cultivation of equity as a science,
had not then so fully prepared them. In those times
? ? ? ? 76 IMPEACHMENT OF WARREN HASTINGS.
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. *
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
*Antiqua jurisprudentia aspera quidem illa, tenebricosa, et tristis,
non tain in eequitate quam in verborum superstitione fundata, eaque
Ciceronis aetatem fere attigit, mansitque annos circiter CCCL. Qua3
hanc excepit, viguitque annos fere septuaginta novem, superiori longe
humanior; quippe que magis utilitate cornmuni, quam potestate verborum, negotia moderaretur. - Gravina, p. 86.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 77
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. " 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 inll
his own case, and yet the Statute of Hue and Cry is
* Omiclund v. Barker, Atk. I.
? ? ? ? 78 IMPEACHMENT OF WARREN HASTINGS.
an exception.
A man's books are allowed to be evi,
dence, 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
? ? ? ? REPORT ON THE LORDS' JOURNALS. 79
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 neces. sity,
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. *
But to proceed with Lord Hardwicke. He observes, that "a tradesman's books" (that iq, the acts
of the party interested himself) "are admitted as
evidence, though no absolute necessity, but by rea* Gaill, Lib. II. Obs. 20, ~ 5.
? ? ? ? 80 IMPEACHMENT OF WARREN HASTINGS.
son of a presumption of necessity only, inferred from
the nature of commerce. " "No rule," continued
Lord HIardwicke, "can be more settled than that
testimony is not to be received but upon oath";
but he lays it down, that all 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 with
out 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 ad.
mitted 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 IIue 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
? ? ? ? REPORT ON THE LORDS' JOURNALS. 81
cases. * 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. " t
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 pro. * N. B. - In some criminal cases also, though not of treason, husband is admitted to prove an assault upon his wife, for the King, ruled by Raymond, Chief-Justice, Trin. 11th Geo. , King v. Azire.
And for various other exceptions see Buller's Nisi Prius, 286, 287. .
t Cro. Charl. 365.
VOL. XI. 6
? ? ? ? 82 IMPEACHMENT OF WARREN HASTINGS.
ceedings 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, inl 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 pro-,ceeds: -- " 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 eases,
but is much more governed by reason than by any one
case whatever. The triue rule is laid down by Lord
? ? ? ? REPORT ON THE LORDS' JOURNALS. 83
Vaugllan, 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 Lde considered in the same ruling light, not only as guides in matter of
interpretation concerning law in general, but in par-k
ticular 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
? ? ? ? 84 IMPEACHMENT OF WARREN HASTINGS.
empire. This enlargement of our concerns he ap
pears, in the year 1744, almost to have foreseen, and
he lived to behold it. " The arguments on the qther
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 call 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. "
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 determi* Omichund v. Barker, 1st Atkyns, ut supra.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 85
nations. 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). " In conformity to this principle, the supposed rules of evidence have, ill 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. " t 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. t 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. "~
Lord Hardwicke had before declared, with great
- Rex v. Philips, Burrow, Vol. I. p. 301, 302, 304.
t Mayor of Hull v. Horner, Cowper's Reports, 109. : Abrahams v. Bunn, Burrows Vol. IV. p. 2254. The whole case
well worth reading.
~ Wyndham v. Chetwynd, Burrow, Vol. I. p. 421.
? ? ? ? 86 IMPEACHMENT OF WARREN HASTINGS.
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 t1he 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. "*
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 6ther 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. King v. Bray.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 87
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. "*
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 Ist 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 repu* Wyndham v. Chetwynd.
? ? ? ? 88 IMPEACHMENT OF WARREN HASTINGS.
tation. 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
Conrt 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. * 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. OnX discovering his error, he considered himself as
freed from an intolerable burden, and hastened to
undo his former determination.
