99
shown, the evidence is allowed to go on without further opposition.
shown, the evidence is allowed to go on without further opposition.
Edmund Burke
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. "There are no
precedents," said he, with some exultation, "which
stand in the way of our determining liberally, equitably,- and according to the true intention of the
parties. " In the same case, his learned assessor,
Justice Wilmot, felt the same sentiments. His expressions are remarkable: -" Courts of law ought
to concur with courts of equity in' the execution of
* Lowe v. Joliffe, 1 Black. J. p. 366.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 89
those powers which are very convenient to be in-serted in settlements; and they ought not to listen. to nice distinctions that savor of the schools, but to be guided by true good sense and manly reason.
After the Statute of Uses, it is much to be lamented
that the courts of Common Law had not adopted
all the rules and maxims of courts of equity. This
would have prevented the absurdity of receiving costs
in one court and paying them in another. " ~
Your Committee does not produce the doctrine
of this particular case as directly applicable to their
charge, no more than several of the others here cited. :We do not know on what precedents or principles
the evidence proposed by us has been deemed inadmissible by the Judges; therefore against the grounds
of this rejection we find it difficult directly to oppose
anything. These precedents and these doctrines are
brought to show the general temper of the courts,
their growing liberality, and the general tendency of
all their reasonings and all their determinations to
set aside all such technical subtleties or formal rules,
which might- stand in the way of the discovery of
truth and the attainment of justice. The cases are
adduced for the principles they contain.
The period of the cases and arguments we have
cited was that in which 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 re* Burrow, 1147. Zouch, ex dimiss. Woolston, v. Woolston.
? ? ? ? . 90 IMPEACHMENT OF WARREN HASTINGS.
fer 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. * So in the case of King v. Parris,t 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;
* In this single point Holt did not concur with the rest of the
judges.
t 1st Siderfin, p. 431.
? ? ? ? . REPORT ON THE LORDS' JOURNALS. 91
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," * 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. t 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. I. t 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: princi3 Interest reipublicae ut maleficia ne remaneant impunita. t Love's Trial, State Trials, Vol. II. p. 144, 171 to 173, and 177;
and Foster's Crown Law, p. 235.
? ? ? ? 92 IMPEACHMENT OF WARREN HASTINGS.
pie 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, uncorrected 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 intro
duced 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 pre
? ? ? ? REPORT ON THE LORDS' JOURNALS. 93
vent 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. Th. e 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 law ( prcesumpti:ones 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 * he actually did, and most wisely,
* Coppendale v. Bridgen, 2 Burrow, 814.
? ? ? ? 94 IMPEACHMENT OF WARREN HASTINGS.
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 anll 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 apophtlhegms, 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 ill 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. JThe 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
? ? ? ? REPORT ON THE LORDS' JOURNALS. 95
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 probf 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.
? ? ? ? 96 IMPEACHMENT OF WARREN HASTINGS.
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 niile 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
? ? ? ? REPORT ON THE LORDS' JOURNALS. 97
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
VOL. XI. 7
? ? ? ? 98 IMPEACHMENT OF WARREN HASTINGS.
not know a case in which proof might not be supplied. *
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
* Vide supra.
? ? ? ? REPORT ON THE LORDS' JOURNALS.
99
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. *
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
* Girdwood's Case, Leach, p. 128. 'Gordon's Case, Ibid. p. 245.
Lord Preston's Case, St. Tr. IV. p. 439. Layer's Case, St. Tr. VI.
p. 279. Foster's Crown Law, p. 198. Canning's Trial, St. Tr. X.
p. 263, 270. Trial of the Duchess of Kingston, St. Tr. XI. p. 244.
Trial of Huggins, St. Tr. IX. p. 119, 120, 135.
? ? ? ? 100 IMIPEACHMENT OF WARREN HASTINGS.
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. "
? ? ? ? REPORT ON THE LORDS' JOURNALS. 101
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 re-'
specting 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
? ? ? ? 102 IMPEACHMENT OF: WARREN HASTINGS.
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.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 103
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 tdie 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.
We admit, that, in the order of mere arrangement,
there is a difference between examination of witnesses
in chief and cross-examination, and that in general
these several parts are properly cast according to the
situation of the parties in the cause; but there neither is nor can be any precise rule to discriminate
the exact bounds between examination and cross-examination. . . So: as. to time there is necessarily some
? ? ? ? 104 IMPEACHMENT OF WARREN HASTINGS.
limit, but a limit hard to fix. The only one which
can be fixed with any tolerable degree of precision
is when the judge, after fully hearing all parties, is
to consider of his verdict or his sentence. Whilst the
cause continues under hearing in any shape, or in any
stage of the process, it is the duty of the judge to
receive every offer of evidence, apparently material,
suggested to him, though the parties themselves,
through negligence, ignorance, or corrupt collusion,
should not bring it forward. A judge is not placed
in that high situation merely as a passive instrument
of parties. He has a duty of his own, independent
of them, and that duty is to investigate the truth.
There may be no prosecutor. In our law a permanent prosecutor is not of necessity. The Crown prosecutor in criminal cases is a grand jury; and this is dissolved instantly on its findings and its presentments. But if no prosecutor appears, (and it has
happened more than once,) the court is obliged
through its officer, the clerk of the arraigns, to examine and cross-examine every witness who presents
himself; and the judge is to see it done effectually,
and to act his own part in it,-and this as long as
evidence shall be offered within the time which the
mode of trial will admit.
Your Committee is of opinion, that, if it has happened that witnesses, or other kinds of evidence, have
not been frequently produced after the closing of the
prisoner's defence, or such evidence has not been in
reply given, it has happened from the peculiar nature
of our common judicial proceedings, in which all the
matter of evidence must be presented whilst the bodily force and the memory or other mental faculties
of men can hold out. This does not exceed tho
? ? ? ? REPORT ON THE LORDS' JOURNALS. 105
compass of one natural day, or thereabouts: during
that short space of time new evidence very rarely occurs for production by any of the parties; because the
nature of men, joined to the nature of the tribunals,
and of the mode of trial at Common Law, (good and
useful on the whole,) prescribe limits which the mere
principles of justice would of themselves never fix.
But in other courts, such as the Court of Chancery,
the Courts of Admiralty Jurisdiction, (except in prize
causes under the act of Parliament,) and in the Ecclesiastical Courts, wherein the trial is not by an inclosed jury in those courts, such strait limits are not
of course necessary: the cause is continued by many
adjournments; as long as the trial lasts, new witnesses are examined (even after the regular stage) for
each party, on a special application under the circumstances to the sound discretion of the court, where
the evidence offered is newly come to the knowledge
or power of the party, and appears on the face of it
to be material in the cause. Even after hearing, new
witnesses have been examined, or former witnesses reexamined, not as the right of the parties, but ad informandam conscientiam judieis. * All these things are not unfrequent in some, if not in all of these courts,
and perfectly known to the judges of Westminster
Hall; who cannot be supposed ignorant of the practice of the Court of Chancery, and who sit to try appeals from the Admiralty and Ecclesiastical Courts as delegates.
But as criminal prosecutions according to the forms
of the Civil and Canon Law are neither many nor
* Harrison's Practice of Chancery, Vol. II. p. 46. 1 Ch. Ca. 228.
I Ch. Ca. 25. Oughton, Tit. 81, 82, 83. Do. Tit. 116. Viner, Tit.
Evidence (P. a. ).
? ? ? ? 106 IMPEACHMENT OF WARREN HASTINGS.
important in any court of this part of the kingdom,
your Committee thinks it right to state the undisputed. principle of the Imperial Law, from the great
writer on this subject before cited by us, -- from Carpzovius. . He says:,' that a doubt has arisen, wheth'er, evidence being once. given in a trial on a public prosecution, (in processu inquisitorio,) and the witnesses being examined, it may be allowed:to. form other and
new articles and to. produce new witnesses. " Your
Committee must here observe, that the pro:essus inquisitorius is that proceeding in which the prosecution is carried on:in the name of the judge acting ex officio,
from that duty of his office which is called the nobile
offcium judicis. For the judge under the Imperial
Law possesses both those powers, the inquisitorial
and the judicial, which in the High Court of Parlianient are more. . aptly divided and exercised by the different Houses; and in this kind of process the
House will see that Carpzovius couples the production
of new witnesses and the forming of new articles (the
undoubted privilege of the Commons) as intimately: and necessarily connected. He then proceeds to solve; the doubt. "Certainly," says he, "there are
authors who deny, that, after publication of the depositions, any new witnesses and proofs that can affect the- prisoner ought. to be received; which," says he,
"is true in a case where a private prosecutor has
intervened, who- produces the witnesses. But if the
judge proceeds by way of inquisition ex officio, then,
even after the completion of the examination of witnesses:against the. prisoner,'new witnesses may be re-' ceived and examined, and, on new grounds of suspicion arising, new articles. may be formed, according to, the common opinion of the doctors; and as. it is. the:
? ? ? ? . REPORT. ON. THE LORDS'. :JOURNALS. . -. 107
most generally received, so it is most agreeable to
reason. " And in another chapter, relative to the
ordinary criminal process by a private prosecutor, he
lays it down, on the authority of Angelus, Bartolus,
and others, that, after the right of the party prosecuting is expired, the judge, taking up the matter ex officio, may direct new witnesses and new proofs, even
after publication. j Other passages. from the same
writer and from others might be added; but your
Committee trusts that, what they have produced is
sufficient to show the general principles: of the Imperial Criminal Law.
The High Court. of Parliament bears in. its modes
of proceeding a much greater resemblance to the
course of the Court of Chancery, the Admiralty, and
Ecclesiastical Courts, (which are the -King's courts
too, and their law the law of the land,) than to those
of the Common Law. The accusation is brought into Parliament, at'this very day, by exhibiting- articles; which your Committee is informed is the regular
mode of commencing a criminal prosecution, where
the. office of the judge is promoted, in the, Civil and
Canon Law courts of this country. : The answer,
again, is usually specific, both to the fact and the law
alleged in each particular article; which is agreeable to the proceeding of the. Civil Law and. not of
the Common Law.
Anciently the resemblance was much nearer and
stronger. Selden, who was himself a great ornament
of the Common Law, and who was personally engaged in most of the impeachments of his time, has written expressly on the judicature in Parliament.
* Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.
t Ibid.
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. "There are no
precedents," said he, with some exultation, "which
stand in the way of our determining liberally, equitably,- and according to the true intention of the
parties. " In the same case, his learned assessor,
Justice Wilmot, felt the same sentiments. His expressions are remarkable: -" Courts of law ought
to concur with courts of equity in' the execution of
* Lowe v. Joliffe, 1 Black. J. p. 366.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 89
those powers which are very convenient to be in-serted in settlements; and they ought not to listen. to nice distinctions that savor of the schools, but to be guided by true good sense and manly reason.
After the Statute of Uses, it is much to be lamented
that the courts of Common Law had not adopted
all the rules and maxims of courts of equity. This
would have prevented the absurdity of receiving costs
in one court and paying them in another. " ~
Your Committee does not produce the doctrine
of this particular case as directly applicable to their
charge, no more than several of the others here cited. :We do not know on what precedents or principles
the evidence proposed by us has been deemed inadmissible by the Judges; therefore against the grounds
of this rejection we find it difficult directly to oppose
anything. These precedents and these doctrines are
brought to show the general temper of the courts,
their growing liberality, and the general tendency of
all their reasonings and all their determinations to
set aside all such technical subtleties or formal rules,
which might- stand in the way of the discovery of
truth and the attainment of justice. The cases are
adduced for the principles they contain.
The period of the cases and arguments we have
cited was that in which 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 re* Burrow, 1147. Zouch, ex dimiss. Woolston, v. Woolston.
? ? ? ? . 90 IMPEACHMENT OF WARREN HASTINGS.
fer 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. * So in the case of King v. Parris,t 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;
* In this single point Holt did not concur with the rest of the
judges.
t 1st Siderfin, p. 431.
? ? ? ? . REPORT ON THE LORDS' JOURNALS. 91
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," * 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. t 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. I. t 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: princi3 Interest reipublicae ut maleficia ne remaneant impunita. t Love's Trial, State Trials, Vol. II. p. 144, 171 to 173, and 177;
and Foster's Crown Law, p. 235.
? ? ? ? 92 IMPEACHMENT OF WARREN HASTINGS.
pie 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, uncorrected 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 intro
duced 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 pre
? ? ? ? REPORT ON THE LORDS' JOURNALS. 93
vent 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. Th. e 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 law ( prcesumpti:ones 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 * he actually did, and most wisely,
* Coppendale v. Bridgen, 2 Burrow, 814.
? ? ? ? 94 IMPEACHMENT OF WARREN HASTINGS.
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 anll 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 apophtlhegms, 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 ill 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. JThe 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
? ? ? ? REPORT ON THE LORDS' JOURNALS. 95
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 probf 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.
? ? ? ? 96 IMPEACHMENT OF WARREN HASTINGS.
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 niile 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
? ? ? ? REPORT ON THE LORDS' JOURNALS. 97
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
VOL. XI. 7
? ? ? ? 98 IMPEACHMENT OF WARREN HASTINGS.
not know a case in which proof might not be supplied. *
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
* Vide supra.
? ? ? ? REPORT ON THE LORDS' JOURNALS.
99
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. *
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
* Girdwood's Case, Leach, p. 128. 'Gordon's Case, Ibid. p. 245.
Lord Preston's Case, St. Tr. IV. p. 439. Layer's Case, St. Tr. VI.
p. 279. Foster's Crown Law, p. 198. Canning's Trial, St. Tr. X.
p. 263, 270. Trial of the Duchess of Kingston, St. Tr. XI. p. 244.
Trial of Huggins, St. Tr. IX. p. 119, 120, 135.
? ? ? ? 100 IMIPEACHMENT OF WARREN HASTINGS.
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. "
? ? ? ? REPORT ON THE LORDS' JOURNALS. 101
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 re-'
specting 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
? ? ? ? 102 IMPEACHMENT OF: WARREN HASTINGS.
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.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 103
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 tdie 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.
We admit, that, in the order of mere arrangement,
there is a difference between examination of witnesses
in chief and cross-examination, and that in general
these several parts are properly cast according to the
situation of the parties in the cause; but there neither is nor can be any precise rule to discriminate
the exact bounds between examination and cross-examination. . . So: as. to time there is necessarily some
? ? ? ? 104 IMPEACHMENT OF WARREN HASTINGS.
limit, but a limit hard to fix. The only one which
can be fixed with any tolerable degree of precision
is when the judge, after fully hearing all parties, is
to consider of his verdict or his sentence. Whilst the
cause continues under hearing in any shape, or in any
stage of the process, it is the duty of the judge to
receive every offer of evidence, apparently material,
suggested to him, though the parties themselves,
through negligence, ignorance, or corrupt collusion,
should not bring it forward. A judge is not placed
in that high situation merely as a passive instrument
of parties. He has a duty of his own, independent
of them, and that duty is to investigate the truth.
There may be no prosecutor. In our law a permanent prosecutor is not of necessity. The Crown prosecutor in criminal cases is a grand jury; and this is dissolved instantly on its findings and its presentments. But if no prosecutor appears, (and it has
happened more than once,) the court is obliged
through its officer, the clerk of the arraigns, to examine and cross-examine every witness who presents
himself; and the judge is to see it done effectually,
and to act his own part in it,-and this as long as
evidence shall be offered within the time which the
mode of trial will admit.
Your Committee is of opinion, that, if it has happened that witnesses, or other kinds of evidence, have
not been frequently produced after the closing of the
prisoner's defence, or such evidence has not been in
reply given, it has happened from the peculiar nature
of our common judicial proceedings, in which all the
matter of evidence must be presented whilst the bodily force and the memory or other mental faculties
of men can hold out. This does not exceed tho
? ? ? ? REPORT ON THE LORDS' JOURNALS. 105
compass of one natural day, or thereabouts: during
that short space of time new evidence very rarely occurs for production by any of the parties; because the
nature of men, joined to the nature of the tribunals,
and of the mode of trial at Common Law, (good and
useful on the whole,) prescribe limits which the mere
principles of justice would of themselves never fix.
But in other courts, such as the Court of Chancery,
the Courts of Admiralty Jurisdiction, (except in prize
causes under the act of Parliament,) and in the Ecclesiastical Courts, wherein the trial is not by an inclosed jury in those courts, such strait limits are not
of course necessary: the cause is continued by many
adjournments; as long as the trial lasts, new witnesses are examined (even after the regular stage) for
each party, on a special application under the circumstances to the sound discretion of the court, where
the evidence offered is newly come to the knowledge
or power of the party, and appears on the face of it
to be material in the cause. Even after hearing, new
witnesses have been examined, or former witnesses reexamined, not as the right of the parties, but ad informandam conscientiam judieis. * All these things are not unfrequent in some, if not in all of these courts,
and perfectly known to the judges of Westminster
Hall; who cannot be supposed ignorant of the practice of the Court of Chancery, and who sit to try appeals from the Admiralty and Ecclesiastical Courts as delegates.
But as criminal prosecutions according to the forms
of the Civil and Canon Law are neither many nor
* Harrison's Practice of Chancery, Vol. II. p. 46. 1 Ch. Ca. 228.
I Ch. Ca. 25. Oughton, Tit. 81, 82, 83. Do. Tit. 116. Viner, Tit.
Evidence (P. a. ).
? ? ? ? 106 IMPEACHMENT OF WARREN HASTINGS.
important in any court of this part of the kingdom,
your Committee thinks it right to state the undisputed. principle of the Imperial Law, from the great
writer on this subject before cited by us, -- from Carpzovius. . He says:,' that a doubt has arisen, wheth'er, evidence being once. given in a trial on a public prosecution, (in processu inquisitorio,) and the witnesses being examined, it may be allowed:to. form other and
new articles and to. produce new witnesses. " Your
Committee must here observe, that the pro:essus inquisitorius is that proceeding in which the prosecution is carried on:in the name of the judge acting ex officio,
from that duty of his office which is called the nobile
offcium judicis. For the judge under the Imperial
Law possesses both those powers, the inquisitorial
and the judicial, which in the High Court of Parlianient are more. . aptly divided and exercised by the different Houses; and in this kind of process the
House will see that Carpzovius couples the production
of new witnesses and the forming of new articles (the
undoubted privilege of the Commons) as intimately: and necessarily connected. He then proceeds to solve; the doubt. "Certainly," says he, "there are
authors who deny, that, after publication of the depositions, any new witnesses and proofs that can affect the- prisoner ought. to be received; which," says he,
"is true in a case where a private prosecutor has
intervened, who- produces the witnesses. But if the
judge proceeds by way of inquisition ex officio, then,
even after the completion of the examination of witnesses:against the. prisoner,'new witnesses may be re-' ceived and examined, and, on new grounds of suspicion arising, new articles. may be formed, according to, the common opinion of the doctors; and as. it is. the:
? ? ? ? . REPORT. ON. THE LORDS'. :JOURNALS. . -. 107
most generally received, so it is most agreeable to
reason. " And in another chapter, relative to the
ordinary criminal process by a private prosecutor, he
lays it down, on the authority of Angelus, Bartolus,
and others, that, after the right of the party prosecuting is expired, the judge, taking up the matter ex officio, may direct new witnesses and new proofs, even
after publication. j Other passages. from the same
writer and from others might be added; but your
Committee trusts that, what they have produced is
sufficient to show the general principles: of the Imperial Criminal Law.
The High Court. of Parliament bears in. its modes
of proceeding a much greater resemblance to the
course of the Court of Chancery, the Admiralty, and
Ecclesiastical Courts, (which are the -King's courts
too, and their law the law of the land,) than to those
of the Common Law. The accusation is brought into Parliament, at'this very day, by exhibiting- articles; which your Committee is informed is the regular
mode of commencing a criminal prosecution, where
the. office of the judge is promoted, in the, Civil and
Canon Law courts of this country. : The answer,
again, is usually specific, both to the fact and the law
alleged in each particular article; which is agreeable to the proceeding of the. Civil Law and. not of
the Common Law.
Anciently the resemblance was much nearer and
stronger. Selden, who was himself a great ornament
of the Common Law, and who was personally engaged in most of the impeachments of his time, has written expressly on the judicature in Parliament.
* Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.
t Ibid.
