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

On the general head of Evidence, or Proof, your Committee finds that much has been written by persons learned in the Roman law, particularly in modern times,—and that many attempts have been made to reduce to rules the principles of evidence or proof, a matter which by its very nature seems incapable of that simplicity, precision, and generality which are necessary to supply the matter or to give the form to a rule of law. Much learning has been employed on the doctrine of indications and presumptions in their books,—far more than is to be found in our law. Very subtle disquisitions were made on all matters of jurisprudence in the times of the classical Civil Law, by the followers of the Stoic school. 43 43 Gravina, 84, 85. In the modern school of the same law, the same course was taken by Bartolus, Baldus, and the Civilians who followed them, before the complete revival of literature. 44 44 Id. 90 usque ad 100. All the discussions to be found in those voluminous writings furnish undoubtedly an useful exercise to the mind, by methodizing the various forms in which one set of facts or collection of facts, or the qualities or demeanor of persons, reciprocally influence each other; and by this course of juridical discipline they add to the readiness and sagacity of those who are called to plead or to judge. But as human affairs and human actions are not of a metaphysical nature, but the subject is concrete, complex, and moral, they cannot be subjected (without exceptions which reduce it almost to nothing) to any certain rule. Their rules with regard to competence were many and strict, and our lawyers have mentioned it to their reproach. "The Civilians," it has been observed, "differ in nothing more than admitting evidence; for they reject histriones , &c., and whole tribes of people." 45 45 Atkyns, Rep. Vol. I p. 37, Omichund versus Barker. But this extreme rigor as to competency, rejected by our law, is not found to extend to the genus of evidence, but only to a particular species ,—personal witnesses. Indeed, after all their efforts to fix these things by positive and inflexible maxims, the best Roman lawyers, in their best ages, were obliged to confess that every case of evidence rather formed its own rule than that any rule could be adapted to every case. The best opinions, however, seem to have reduced the admissibility of witnesses to a few heads. "For if," said Callistratus, in a passage preserved to us in the Digest, "the testimony is free from suspicion, either on account of the quality of the person , namely, that he is in a reputable situation, or for cause , that is to say, that the testimony given is not for reward nor favor nor for enmity, such a witness is admissible." This first description goes to competence , between which and credit Lord Hardwicke justly says the discrimination is very nice. The other part of the text shows their anxiety to reduce credibility itself to a fixed rule. It proceeds, therefore,—"His Sacred Majesty, Hadrian, issued a rescript to Vivius Varus, Lieutenant of Cilicia, to this effect, that he who sits in judgment is the most capable of determining what credit is to be given to witnesses." The words of the letter of rescript are as follow:—"You ought best to know what credit is to be given to witnesses,—who, and of what dignity, and of what estimation they are,—whether they seem to deliver their evidence with simplicity and candor, whether they seem to bring a formed and premeditated discourse, or whether on the spot they give probable matter in answer to the questions that are put to them." And there remains a rescript of the same prince to Valerius Verus, on the bringing out the credit of witnesses. This appears to go more to the general principles of evidence. It is in these words:—"What evidence, and in what measure or degree, shall amount to proof in each case can be defined in no manner whatsoever that is sufficiently certain. For, though not always, yet frequently, the truth of the affair may appear without any matter of public record. In some cases the number of the witnesses, in others their dignity and authority, is to be weighed; in others, concurring public fame tends to confirm the credit of the evidence in question. This alone I am able, and in a few words, to give you as my determination: that you ought not too readily to bind yourself to try the cause upon any one description of evidence; but you are to estimate by your own discretion what you ought to credit, or what appears to you not to be established by proof sufficient." 46 46 Digest. Lib. XXII. Tit. 5.

The modern writers on the Civil Law have likewise much matter on this subject, and have introduced a strictness with regard to personal testimony which our particular jurisprudence has not thought it at all proper to adopt. In others we have copied them more closely. They divide Evidence into two parts, in which they do not differ from the ancients: 1st, What is Evidence, or Proof, by itself; 2dly, What is Presumption, "which is a probable conjecture, from a reference to something which, coming from marks and tokens ascertained, shall be taken for truth, until some other shall be adduced." Again, they have labored particularly to fix rules for presumptions, which they divide into, 1. Violent and necessary, 2. Probable, 3. and lastly, Slight and rash. 47 47 Calvinus, voce Præsumptio . But finding that this head of Presumptive Evidence (which makes so large a part with them and with us in the trial of all causes, and particularly criminal causes) is extremely difficult to ascertain, either with regard to what shall be considered as exclusively creating any of these three degrees of presumption, or what facts, and how proved, and what marks and tokens, may serve to establish them, even those Civilians whose character it is to be subtle to a fault have been obliged to abandon the task, and have fairly confessed that the labors of writers to fix rules for these matters have been vain and fruitless. One of the most able of them 48 48 Bartolus. has said, "that the doctors of the law have written nothing of value concerning presumptions; nor is the subject-matter such as to be reduced within the prescribed limit of any certain rules. In truth, it is from the actual existing case, and from the circumstances of the persons and of the business, that we ought (under the guidance of an incorrupt judgment of the mind, which is called an equitable discretion) to determine what presumptions or conjectural proofs are to be admitted as rational or rejected as false, or on which the understanding can pronounce nothing, either the one way or the other."

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." 49 49 Lib. II. Obs. 149, § 9. 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. " 50 50 Lib. I. Obs. 91, § 7.