we were very narrowly circumscribed in the production of much circumstantial as well as positive evidence.  We did not find any serious resistance on this head, till we came to make good our charges of secret crimes,—­crimes of a class and description in the proof of which all judges of all countries have found it necessary to relax almost all their rules of competency:  such crimes as peculation, pecuniary frauds, extortion, and bribery.  Eight out of nine of the questions put to the Judges by the Lords, in the first stage of the prosecution, related to circumstances offered in proof of these secret crimes.

Much industry and art have been used, among the illiterate and unexperienced, to throw imputations on this prosecution, and its conduct, because so great a proportion of the evidence offered on this trial (especially on the latter charges) has been circumstantial.  Against the prejudices of the ignorant your Committee opposes the judgment of the learned.  It is known to them, that, when this proof is in its greatest perfection, that is, when it is most abundant in circumstances, it is much superior to positive proof; and for this we have the authority of the learned judge who presided at the trial of Captain Donellan.  “On the part of the prosecution, a great deal of evidence has been laid before you.  It is all circumstantial evidence, and in its nature it must be so:  for, in cases of this sort, no man is weak enough to commit the act in the presence of other persons, or to suffer them to see what he does at the time; and therefore it can only be made out by circumstances, either before the committing of the act, at the time when it was committed, or subsequent to it.  And a presumption, which necessarily arises from circumstances, is very often more convincing and more satisfactory than any other kind of evidence:  because it is not within the reach and compass of human abilities to invent a train of circumstances which shall be so connected together as to amount to a proof of guilt, without affording opportunities of contradicting a great part, if not all, of these circumstances.  But if the circumstances are such as, when laid together, bring conviction to your minds, it is then fully equal, if not, as I told you before, more convincing than positive evidence.”  In the trial of Donellan no such selection was used as we have lately experienced; no limitation to the production of every matter, before, at, and after the fact charged.  The trial was (as we conceive) rightly conducted by the learned judge; because secret crimes, such as secret assassination, poisoning, bribery, peculation, and extortion, (the three last of which this House has charged upon Mr. Hastings,) can very rarely be proved in any other way.  That way of proof is made to give satisfaction to a searching, equitable, and intelligent mind; and there must not be a failure of justice.  Lord Mansfield has said that he did not know a case in which proof might not be supplied.[69]