If anything of an over-formal strictness is introduced into the trial of Warren Hastings, Esquire, it does not seem to be copied from the decisions of these tribunals.  It is with great satisfaction your Committee has found that the reproach of “disgraceful subtleties,” inferior rules of evidence which prevent the discovery of truth, of forms and modes of proceeding which stand in the way of that justice the forwarding of which is the sole rational object of their invention, cannot fairly be imputed to the Common Law of England, or to the ordinary practice of the courts below.

CIRCUMSTANTIAL EVIDENCE, ETC.

The rules of evidence in civil and in criminal cases, in law and in equity, being only reason methodized, are certainly the same.  Your Committee, however, finds that the far greater part of the law of evidence to be found in our books turns upon questions relative to civil concerns.  Civil cases regard property:  now, although property itself is not, yet almost everything concerning property and all its modifications is, of artificial contrivance.  The rules concerning it become more positive, as connected with positive institution.  The legislator therefore always, the jurist frequently, may ordain certain methods by which alone they will suffer such matters to be known and established; because their very essence, for the greater part, depends on the arbitrary conventions of men.  Men act on them with all the power of a creator over his creature.  They make fictions of law and presumptions of (praesumptiones juris et de jure) according to their ideas of utility; and against those fictions, and against presumptions so created, they do and may reject all evidence.  However, even in these cases there is some restraint.  Lord Mansfield has let in a liberal spirit against the fictions of law themselves; and he declared that he would do what in one case[68] he actually did, and most wisely, that he would admit evidence against a fiction of law, when the fiction militated against the policy on which it was made.

Thus it is with things which owe their existence to men; but where the subject is of a physical nature, or of a moral nature, independent of their conventions, men have no other reasonable authority than to register and digest the results of experience and observation.  Crimes are the actions of physical beings with an evil intention abusing their physical powers against justice and to the detriment of society:  in this case fictions of law and artificial presumptions (juris et de jure) have little or no place.  The presumptions which belong to criminal cases are those natural and popular presumptions which are only observations turned into maxims, like adages and apophthegms, and are admitted (when their grounds are established) in the place of proof, where better is wanting, but are to be always over turned by counter proof.