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

But to proceed with Lord Hardwicke. He observes, that "a tradesman's books" (that is, the acts of the party interested himself) "are admitted as evidence, though no absolute necessity , but by reason of a presumption of necessity only, inferred from the nature of commerce." "No rule," continued Lord Hardwicke, "can be more settled than that testimony is not to be received but upon oath"; but he lays it down, that an oath itself may be dispensed with. "There is another instance," says he, "where the lawful oath may be dispensed with,—where our courts admit evidence for the Crown without oath."

In the same discussion, the Chief-Baron (Parker) cited cases in which all the rules of evidence had given way. "There is not a more general rule," says he, "than that hearsay cannot be admitted, nor husband and wife as witnesses against each other; and yet it is notorious that from necessity they have been allowed,—not an absolute necessity, but a moral one."

It is further remarkable, in this judicial argument, that exceptions are allowed not only to rules of evidence, but that the rules of evidence themselves are not altogether the same, where the subject-matter varies. The Judges have, to facilitate justice, and to favor commerce, even adopted the rules of foreign laws. They have taken for granted, and would not suffer to be questioned, the regularity and justice of the proceedings of foreign courts; and they have admitted them as evidence, not only of the fact of the decision, but of the right as to its legality. "Where there are foreign parties interested, and in commercial matters, the rules of evidence are not quite the same as in other instances in courts of justice: the case of Hue and Cry, Brownlow, 47. A feme covert is not a lawful witness against her husband, except in cases of treason, but has been admitted in civil cases. 54 54 N.B.—In some criminal cases also, though not of treason, husband is admitted to prove an assault upon his wife, for the King, ruled by Raymond, Chief-Justice, Trin. 11th Geo., King v. Azire. And for various other exceptions see Buller's Nisi Prius, 286, 287. The testimony of a public notary is evidence by the law of France: contracts are made before a public notary, and no other witness necessary. I should think it would be no doubt at all, if it came in question here, whether this would be a valid contract, but a testimony from persons of that credit and reputation would be received as a very good proof in foreign transactions, and would authenticate the contract." 55 55 Cro. Charl. 365.

These cases show that courts 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 56 Omichund v. Barker, 1st Atkyns, ut supra.