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

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 57 Rex v. Philips, Burrow, Vol. I. p. 301, 302, 304. 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 58 Mayor of Hull v. Horner, Cowper's Reports, 109. 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 59 Abrahams v. Bunn, Burrow, Vol. IV. p. 2254. The whole case well worth reading. 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 60 Wyndham v. Chetwynd, Burrow, Vol. I. p. 421.

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 61 King v. Bray.

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 stand 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 62 Wyndham v. Chetwynd.

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 63 Lowe v. Joliffe, 1 Black. J. p. 366. 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 64 Burrow, 1147. Zouch, ex dimiss. Woolston, v. Woolston.