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

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 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.71

      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 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."

      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 respecting 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 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.

      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 the 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,

71

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.