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

no longer than till the contrary is proved. The presumption of bias may be taken off 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."62

      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 1st 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 reputation. 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 Court 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.63 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. On 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 those powers which are very convenient to be inserted 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."64

      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 refer but to a few authorities, and those which seem most immediately to relate to the nature of the cause intrusted to them. In Michaelmas, 11 Will. III., the King v. the Warden of the Fleet, a witness, who had really been a prisoner, and voluntarily suffered to escape, was produced to prove the escape. To the witness it was objected, that he had given a bond to be a true prisoner, which he had forfeited by escaping: besides, he had been retaken. His testimony was allowed; and by the Court, among other things, it was said, in secret transactions, if any of the parties concerned are not to be, for the necessity of the third, admitted as evidence, it will be impossible to detect the practice: as in cases of the Statute of Hue and Cry, the party robbed shall be a witness to charge the hundred; and in the case of Cooke v. Watts in the Exchequer, where one who had been prejudiced by the will was admitted an evidence to prove it forged.65 So in the case of King v. Parris,66 where a feme covert was admitted as a witness for fraudulently drawing her in, when sole, to give a warrant of attorney for confessing a judgment on an unlawful consideration, whereby execution was sued out against her husband, and Holt, Chief-Justice, held that a feme covert could not, by law, be a witness to convict one on an information; yet, in Lord Audley's case, it being a rape on her person, she was received to give evidence against him, and the Court concurred with him, because it was the best evidence the nature of the thing would allow. This decision of Holt refers to others more early, and all on the same principle; and it is not of this day that this one great principle of eminent public expedience, this moral necessity, "that crimes should not escape with impunity,"67 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.68 That precedent, though furnished in times from which precedents were cautiously drawn, was received as authority throughout the whole reign of Charles II.; it was equally followed after the Revolution; and at this day it is undoubted law. It is not so from the natural or technical rules of construction of the act of Parliament, but from the principles of juridical policy. All the judges who have ruled it, all the writers of credit who have written upon it, assign this reason, and this only,—that treasons, being plotted in secrecy, could in few cases be otherwise brought to punishment.

      The same principle of policy has dictated a principle of relaxation with regard to severe rules of evidence, in all cases similar, though of a lower order in the scale of criminality. It is against fundamental maxims that an accomplice should be admitted as a witness: but accomplices are admitted from the policy of justice, otherwise confederacies of crime could not be dissolved. There is no rule more solid than that a man shall not entitle himself to profit by his own testimony. But an informer, in case of highway robbery, may obtain forty pounds to his own profit by his own evidence: this is not in consequence of positive provision in the act of Parliament; it is a provision of policy, lest the purpose of the act should be defeated.

      Now, if policy has dictated this very large construction of an act of Parliament concerning high treason, if the same policy has dictated exceptions to the clearest

62

Wyndham v. Chetwynd.

63

Lowe v. Joliffe, 1 Black. J. p. 366.

64

Burrow, 1147. Zouch, ex dimiss. Woolston, v. Woolston.

65

In this single point Holt did not concur with the rest of the judges.

66

1st Siderfin, p. 431.

67

Interest reipublicæ ut maleficia ne remaneant impunita.

68

Love's Trial, State Trials, Vol. II. p. 144, 171 to 173, and 177; and Foster's Crown Law, p. 235.