On the whole, your Committee can find nothing in the writings of the learned in this law, any more than they could discover anything in the Law of Parliament, to support any one of the determinations given by the Judges, and adopted by the Lords, against the evidence which your Committee offered, whether direct and positive, or merely (as for the greater part it was) circumstantial, and produced as a ground to form legitimate presumption against the defendant: nor, if they were to admit (which they do not) this Civil Law to be of authority in furnishing any rule in an impeachment of the Commons, more than as it may occasionally furnish a principle of reason on a new or undetermined point, do they find any rule or any principle, derived from that law, which could or ought to have made us keep back the evidence which we offered; on the contrary, we rather think those rules and principles to be in agreement with our conduct.
As to the Canon Law, your Committee, finding it to have adopted the Civil Law with no very essential variation, does not feel it necessary to make any particular statement on that subject.
Your Committee then came to examine into the authorities in the English law, both as it has prevailed for many years back, and as it has been recently received in our courts below. They found on the whole the rules rather less strict, more liberal, and less loaded with positive limitations, than in the Roman law. The origin of this latitude may perhaps be sought in this circumstance, which we know to have relaxed the rigor of the Roman law: courts in England do not judge upon evidence, _secundum allegata et probata_, as in other countries and under other laws they do, but upon verdict. By a fiction of law they consider the jury as supplying, in some sense, the place of testimony. One witness (and for that reason) is allowed sufficient to convict, in cases of felony, which in other laws is not permitted.
In ancient times it has happened to the law of England (as in pleading, so in matter of evidence) that a rigid strictness in the application of technical rules has been more observed than at present it is. In the more early ages, as the minds of the Judges were in general less conversant in the affairs of the world, as the sphere of their jurisdiction was less extensive, and as the matters which came before them were of less variety and complexity, the rule being in general right, not so much inconvenience on the whole was found from a literal adherence to it as might have arisen from an endeavor towards a liberal and equitable departure, for which further experience, and a more continued cultivation of equity as a science, had not then so fully prepared them. In those times that judicial policy was not to be condemned. We find, too, that, probably from the same cause, most of their doctrine leaned towards the restriction; and the old lawyers being bred, according to the then philosophy of the schools, in habits of great subtlety and refinement of distinction, and having once taken that bent, very great acuteness of mind was displayed in maintaining every rule, every maxim, every presumption of law creation, and every fiction of law, with a punctilious exactness: and this seems to have been the course which laws have taken in every nation.[50] It was probably from this rigor, and from a sense of its pressure, that, at an early period of our law, far more causes of criminal jurisdiction were carried into the House of Lords and the Council Board, where laymen were judges, than can or ought to be at present.