It is certain, that, whatever over-strictness is to be found in the older writers on this law with regard to evidence, it chiefly related to the mere competency of witnesses; yet even here the rigor of the Roman lawyers relaxed on the necessity of the case. Persons who kept houses of ill-fame were with them incompetent witnesses; yet among the maxims of that law the rule is well known of Testes lupanares in re lupanari.
In ordinary cases, they require two witnesses to prove a fact; and therefore they held, "that, if there be but one witness, and no probable grounds of presumption of some kind (nulla argumenta), that one witness is by no means to be heard"; and it is not inelegantly said in that case, Non jus deficit, sed probatio, "The failure is not in the law, but in the proof." But if other grounds of presumption appear, one witness is to be heard: "for it is not necessary that one crime should be established by one sort of proof only, as by witnesses, or by documents, or by presumptions; all the modes of evidence may be so conjoined, that, where none of them alone would affect the prisoner, all the various concurrent proofs should overpower him like a storm of hail." This is held particularly true in cases where crimes are secret, and detection difficult. The necessity of detecting and punishing such crimes superseded, in the soundest authors, this theoretic aim at perfection, and obliged technical science to submit to practical expedience. "In re criminali," said the rigorists, "probationes debent esse evidentes et luce meridiana clariores": and so undoubtedly it is in offences which admit such proof. But reflection taught them that even their favorite rules of incompetence must give way to the exigencies of distributive justice. One of the best modern writers on the Imperial Criminal Law, particularly as practised in Saxony, (Carpzovius,) says,—"This alone I think it proper to remark, that even incompetent witnesses are sometimes admitted, if otherwise the truth cannot be got at; and this particularly in facts and crimes which are of difficult proof"; and for this doctrine he cites Farinacius, Mascardus, and other eminent Civilians who had written on Evidence. He proceeds afterwards,—"However, this is to be taken with a caution, that the impossibility of otherwise discovering the truth is not construed from hence, that other witnesses were not actually concerned, but that, from the nature of the crime, or from regard had to the place and time, other witnesses could not be present." Many other passages from the same authority, and from others to a similar effect, might be added; we shall only remark shortly, that Gaill, a writer on the practice of that law the most frequently cited in our own courts, gives the rule more in the form of a maxim,—"that the law is contented with such proof as can be made, if the subject in its nature is difficult of proof."[48] And the same writer, in another passage, refers to another still more general maxim, (and a sound maxim it is,) that the power and means of proof ought not to be narrowed, but enlarged, that the truth may not be concealed: "Probationum facultas non angustari, sed ampliari debeat, ne veritas occultetur."[49]
On the whole, your Committee can find nothing in the writings of the learned in this law, any more than they could discover anything in the Law of Parliament, to support any one of the determinations given by the Judges, and adopted by the Lords, against the evidence which your Committee offered, whether direct and positive, or merely (as for the greater part it was) circumstantial, and produced as a ground to form legitimate presumption against the defendant: nor, if they were to admit (which they do not) this Civil Law to be of authority in furnishing any rule in an impeachment of the Commons, more than as it may occasionally furnish a principle of reason on a new or undetermined point, do they find any rule or any principle, derived from that law, which could or ought to have made us keep back the evidence which we offered; on the contrary, we rather think those rules and principles to be in agreement with our conduct.
As to the Canon Law, your Committee, finding it to have adopted the Civil Law with no very essential variation, does not feel it necessary to make any particular statement on that subject.
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 continued cultivation of equity as a science, had not then so fully prepared them. In those times that judicial policy was not to be condemned. We find, too, that, probably from the same cause, most of their doctrine leaned towards the restriction; and the old lawyers being bred, according to the then philosophy of the schools, in habits of great subtlety and refinement of distinction, and having once taken that bent, very great acuteness of mind was displayed in maintaining every rule, every maxim, every presumption of law creation, and every fiction of law, with a punctilious exactness: and this seems to have been the course which laws have taken in every nation.[50] It was probably from this rigor, and from a sense of its pressure, that, at an early period of our law, far more causes of criminal jurisdiction were carried into the House of Lords and the Council Board, where laymen were judges, than can or ought to be at present.
As the business of courts of equity became more enlarged and more methodical,—as magistrates, for a long series of years, presided in the Court of Chancery, who were not bred to the Common Law,—as commerce, with its advantages and its necessities, opened a communication more largely with other countries,—as the Law of Nature and Nations (always a part of the law of England) came to be cultivated,—as an increasing empire, as new views and new combinations of things were opened,—this antique rigor and overdone severity gave way to the accommodation of human concerns, for which rules were made, and not human concerns to bend to them.
At length, Lord Hardwicke, in one of the cases the most solemnly argued, that has been in man's memory, with the aid of the greatest learning at the bar, and with the aid of all the learning on the bench, both bench and bar being then supplied with men of the first form, declared from the bench, and in concurrence with the rest of the Judges, and with the most learned of the long robe, the able council on the side of the old restrictive principles making no reclamation, "that the judges and sages of the law have laid it down that there is but ONE general rule of evidence,—the best that the nature of the case will admit."[51] This, then, the master rule, that governs all the subordinate rules, does in reality subject itself and its own virtue and authority to the nature of the case, and leaves no rule at all of an independent, abstract, and substantive quality. Sir Dudley Ryder, (then Attorney-General, afterwards Chief-Justice,) in his learned argument, observed, that "it is extremely proper that there should be some general rules in relation to evidence; but if exceptions were not allowed to them, it would be better to demolish all the general rules. There is no general rule without exception that we know of but this,—that the best evidence shall be admitted which the nature of the case will afford. I will show that rules as general as this are broke in upon for the sake of allowing evidence. There is no rule that seems more binding than that a man shall not be admitted an evidence in his own case, and yet the Statute of Hue and Cry is an exception. A man's books are allowed to be evidence, or, which is in substance the same, his servant's books, because the nature of the case requires it,—as in the case of a brewer's servants. Another general rule, that a wife cannot be witness against her husband, has been broke in upon in cases of treason. Another exception to the general rule, that a man may not be examined without oath,—the last words of a dying man are given in evidence in the case of murder." Such are the doctrines of this great lawyer.
Chief-Justice Willes concurs with Lord Hardwicke as to dispensing with strict rules of evidence. "Such evidence," [he says,] "is to be admitted as the necessity of the case will allow of: as, for instance, a marriage at Utrecht, certified under the seal of the minister there, and of the said town, and that they cohabited together as man and wife, was held to be sufficient proof that they were married." This learned judge (commenting upon Lord Coke's doctrine, and Serjeant Hawkins's after him, that the oaths of Jews and pagans were not to be taken) says, "that this notion, though advanced by so great a man, is contrary to religion, common sense, and common humanity, and I think the devils, to whom he has delivered them, could not have suggested anything worse." Chief-Justice Willes, admitting Lord Coke to be a great lawyer, then proceeds in very strong terms, and with marks of contempt, to condemn "his narrow notions"; and he treats with as little respect or decorum the ancient authorities referred to in defence of such notions.
The principle of the departure from those rules is clearly fixed by Lord Hardwicke; he lays it down as follows:—"The first ground judges have gone upon, in departing from strict rules, is absolute strict necessity; 2dly, a presumed necessity." Of the first he gives these instances:—"In the case of writings subscribed by witnesses, if all are dead, the proof of one of their hands is sufficient to establish the deed. Where an original is lost, a copy may be admitted; if no copy, then a proof by witnesses who have heard the deed: and yet it is a thing the law abhors, to admit the memory of man for evidence." This enlargement through two stages of proof, both of them contrary to the rule of law, and both abhorrent from its principles, are by this great judge accumulated upon one another, and are admitted from necessity, to accommodate human affairs, and to prevent that which courts are by every possible means instituted to prevent,—A FAILURE OF JUSTICE. And this necessity is not confined within the strict limits of physical causes, but is more lax, and takes in moral and even presumed and argumentative necessity, a necessity which is in fact nothing more than a great degree of expediency. The law creates a fictitious necessity against the rules of evidence in favor of the convenience of trade: an exception which on a similar principle had before been admitted in the Civil Law, as to mercantile causes, in which the books of the party were received to give full effect to an insufficient degree of proof, called, in the nicety of their distinctions, a semiplena probatio.[52]