The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12). Edmund Burke

always govern themselves by these rules in cases of foreign transactions. To this principle Lord Hardwicke accords; and enlarging the rule of evidence by the nature of the subject and the exigencies of the case, he lays it down, "that it is a common and natural presumption, that persons of the Gentoo religion should be principally apprised of facts and transactions in their own country. As the English have only a factory in this country, (for it is in the empire of the Great Mogul,) if we should admit this evidence [Gentoo evidence on a Gentoo oath], it would be agreeable to the genius of the law of England." For this he cites the proceedings of our Court of Admiralty, and adopts the author who states the precedent, "that this Court will give credit to the sentence of the Court of Admiralty in France, and take it to be according to right, and will not examine their proceedings: for it would be found very inconvenient, if one kingdom should, by peculiar laws, correct the judgments and proceedings of another kingdom." Such is the genius of the law of England, that these two principles, of the general moral necessities of things, and the nature of the case, overrule every other principle, even those rules which seem the very strongest. Chief-Baron Parker, in answer to an objection made against the infidel deponent, "that the plaintiff ought to have shown that he could not have the evidence of Christians," says, "that, repugnant to natural justice, in the Statute of Hue and Cry, the robbed is admitted to be witness of the robbery, as a moral or presumed necessity is sufficient." The same learned magistrate, pursuing his argument in favor of liberality, in opening and enlarging the avenues to justice, does not admit that "the authority of one or two cases" is valid against reason, equity, and convenience, the vital principles of the law. He cites Wells v. Williams, 1 Raymond, 282, to show that the necessity of trade has mollified the too rigorous rules of the old law, in their restraint and discouragement of aliens. "A Jew may sue at this day, but heretofore he could not, for then they were looked upon as enemies, but now commerce has taught the world more humanity; and therefore held that an alien enemy, commorant here by the license of the King, and under his protection, may maintain a debt upon a bond, though he did not come with safe-conduct." So far Parker, concurring with Raymond. He proceeds:—"It was objected by the defendant's counsel, that this is a novelty, and that what never has been done ought not to be done." The answer is, "The law of England is not confined to particular cases, but is much more governed by reason than by any one case whatever. The true rule is laid down by Lord Vaughan, fol. 37, 38. 'Where the law,' saith he, 'is known and clear, the Judges must determine as the law is, without regard to the inequitableness or inconveniency: these defects, if they happen in the law, can only be remedied by Parliament. But where the law is doubtful and not clear, the Judges ought to interpret the law to be as is most consonant to equity, and what is least inconvenient.'"

      These principles of equity, convenience, and natural reason Lord Chief-Justice Lee considered in the same ruling light, not only as guides in matter of interpretation concerning law in general, but in particular as controllers of the whole law of evidence, which, being artificial, and made for convenience, is to be governed by that convenience for which it is made, and is to be wholly subservient to the stable principles of substantial justice, "I do apprehend," said that Chief-Justice, "that the rules of evidence are to be considered as artificial rules, framed by men for convenience in courts of justice. This is a case that ought to be looked upon in that light; and I take it that considering evidence in this way [viz. according to natural justice] is agreeable to the genius of the law of England."

      The sentiments of Murray, then Solicitor-General, afterwards Lord Mansfield, are of no small weight in themselves, and they are authority by being judicially adopted. His ideas go to the growing melioration of the law, by making its liberality keep pace with the demands of justice and the actual concerns of the world: not restricting the infinitely diversified occasions of men and the rules of natural justice within artificial circumscriptions, but conforming our jurisprudence to the growth of our commerce and of our empire. This enlargement of our concerns he appears, in the year 1744, almost to have foreseen, and he lived to behold it. "The arguments on the other side," said that great light of the law, (that is, arguments against admitting the testimony in question from the novelty of the case,) "prove nothing. Does it follow from thence, that no witnesses can be examined in a case that never specifically existed before, or that an action cannot be brought in a case that never happened before? Reason (being stated to be the first ground of all laws by the author of the book called 'Doctor and Student') must determine the case. Therefore the only question is, Whether, upon principles of reason, justice, and convenience, this witness be admissible? Cases in law depend upon the occasions which gave rise to them. All occasions do not arise at once: now a particular species of Indians appears; hereafter another species of Indians may arise. A statute can seldom take in all cases. Therefore the Common Law, that works itself pure by rules drawn from the fountain of justice, is for this reason superior to an act of Parliament."56

      From the period of this great judgment to the trial of Warren Hastings, Esquire, the law has gone on continually working itself pure (to use Lord Mansfield's expression) by rules drawn from the fountain of justice. "General rules," said the same person, when he sat upon the bench, "are wisely established for attaining justice with ease, certainty, and dispatch; but the great end of them being to do justice, the Court will see that it be really obtained. The courts have been more liberal of late years in their determinations, and have more endeavored to attend to the real justice of the case than formerly." On another occasion, of a proposition for setting aside a verdict, he said, "This seems to be the true way to come at justice, and what we therefore ought to do; for the true text is, Boni judicis est ampliare justitiam (not jurisdictionem, as has been often cited)."57 In conformity to this principle, the supposed rules of evidence have, in late times and judgments, instead of being drawn to a greater degree of strictness, been greatly relaxed.

      "All evidence is according to the subject-matter to which it is applied. There is a great deal of difference between length of time that operates as a bar to a claim and that which is used only by way of evidence. Length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, or to draw their inferences one way or the other, according to circumstances. I do not know an instance in which proof may not be supplied."58 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.59 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."60

      Lord Hardwicke had before declared, with great truth, "that the boundaries of what goes to the credit and what to the competency are very nice, and the latter carried too far"; and in the same case he said, "that, unless the objection appeared to him to carry a strong danger of perjury, and some apparent advantage might accrue to the witness, he was always inclined to let it go to his credit, only in order to let in a proper light to the case, which would otherwise be shut out; and in a doubtful case, he said, it was generally his custom to admit the evidence, and give such directions to the jury as the nature of the case might require."61

      It is a known rule of evidence, that an interest in the matter to be supported by testimony disqualifies a witness; yet Lord Mansfield held, "that nice objections to a remote interest which could not be paid or released, though they held in other cases, were not allowed to disqualify a witness to a will, as parishioners might have [prove?] a devise to the use of the poor of the parish forever." He went still nearer, and his doctrine tends so fully to settle the principles of departure from or adherence to rules of evidence, that your Committee inserts part of the argument at large. "The disability of a witness from interest is very different from a positive incapacity. If a deed must be acknowledged before a judge or notary public, every other person is under a positive incapacity to authenticate it; but objections of interest are deductions from natural reason, and proceed upon a presumption of too great a bias in the mind of the witness, and the public utility of rejecting partial testimony. Presumptions

56

Omichund v. Barker, 1st Atkyns, ut supra.

57

Rex v. Philips, Burrow, Vol. I. p. 301, 302, 304.

58

Mayor of Hull v. Horner, Cowper's Reports, 109.

59

Abrahams v. Bunn, Burrow, Vol. IV. p. 2254. The whole case well worth reading.

60

Wyndham v. Chetwynd, Burrow, Vol. I. p. 421.

61

King v. Bray.