"There had been one of that county convicted and executed for a rape in that county, before some other Judges, about three assizes before, and I suppose very justly: some malicious people seeing how easy it was to make out such an accusation, and how difficult it was for the party accused to clear himself, furnished the two assizes following with many indictments of rapes, wherein the parties accused with some difficulty escaped.'

σε

He then relates a case which happened at the second assizes following,-(it is rather too long to give the whole of it in his own words,)-" Where an ancient wealthy man, of about sixty-three years old, was indicted for a rape, which was fully, sworn against him by a young girl of fourteen years old, and a concurrent testimony of her mother and father and some other relations. The ancient man, when he came to his defence, alleged that it was true the fact was sworn, and it was not possible for him to produce witnesses to the negative; but the prisoner then convinced the court and jury that he had long laboured under a disorder which rendered him perfectly incapable of committing a crime of that nature." Lord Hale then relates other similar cases; and observes, "I only mention these instances, that we may be the more cau. tious upon trials of offences of this nature, wherein the court and jury may with so much ease be

imposed

imposed upon, without great care and vigilance; the heinousness of the offence many times transporting the judge and jury with so much indignation, that they are over-hastily carried to the conviction of the person accused thereof, by the confident testimony, sometimes of malicious and false .witnesses*"

What my Lord Chief Justice Hale recommends in these cases, is equally applicable to every other species of accusation, viz. That the care and vigilance of the court ought to be greater, according to the ease of fabricating evidence, and the difficulty in repelling itt. But besides this shield which justice, with a parental care, spontaneously presents against the designs of wickedness, perhaps some caution might be necessary to check a natural propensity in the mind of man to magnify whatever we know imperfectly, or where we have no fear of contradiction. This, though perhaps a commonplace observation, seems to have been a favourite sentiment of one of the most comprehensive minds of antiquity; I mean Tacitus. Ut quis ex longinquo revenerat, miracula narrabant, vim turbinum,

*P. C. vol. I. 636.

There is one melancholy instance in an impeachment, where a venerable Peer, Lord Stafford, lost his life by the perjury of Titus Oates and his infernal associates.

turbinum, et inauditas volucres, monstra maris, ambiguas hominum et belluarum formas. An. II. 24.

Cuncta, ut ex longinquo, aucta in deterius adferebantur. An. II. 82.

Juvit credulitatem nox, et promptior inter tenebras affirmatio. Ib.

Gnarus majora credi de absentibus. Hist. II. 83.

Omne ignotum pro magnifico. Vita Agric. 30.

These authorities, I trust, will suffice to convince us that we ought not to supply by imagination the deficiency of legal evidence; and that it is not consonant either to justice or sound reason, to extend the laws of evidence, or to be content with a slighter degree of proof, because the scene of action is laid in India. But, to obviate the complaint of the want of the best evidence in trials for crimes committed in India, the Parliament has provided, by an Act passed in the thirteenth of the present King, that the Speaker of the House of Commons, or the Chancellor, may send a Commission to India for the examination of witnesses, and that depositions obtained in consequence shall be good evidence in any Parliamentary inquiry in this country.

We

We frequently hear it observed, that it is the law of England, that when you cannot obtain the best evidence, you shall receive the next best evidence -which the nature of the case will admit. This certainly is the law of England. But it signifies nothing more, than that if you have not the best -legal evidence, you shall resort to the next legal evidence. Evidence may be divided into primary and secondary, but the secondary evidence is as .accurately defined and limited by the law as the primary; but you shall never resort to hearsay, to interested witnesses, to copies of copies, &c. &c. because from no circumstances whatever can they ever become legal evidence: if there are exceptions, they are such as are as much recognised by the law as the general rule; and where boundaries and limits are established by the law for every case which can possibly occur, it is immaterial what we call the rule, and what the exception.

With regard to the present Impeachment, I have heard an argument of this kind advanced, that though our rules of evidence may be very fit and proper to try a mnrder, rape, robbery, or a single action, they are perfectly unavailing and inapplicable when the whole history of a man's life is put in issue; and that this is a case far beyond the comprehension of the contracted vulgar minds of lawyers. By thus enveloping the argument in a

mystery,

mystery, which we have no power to penetrate, if it does not give pretensions to a victory, it at least prevents the disgrace of a defeat: it brings to one's mind those heroes in Homer, who, when they are hard pressed, are carried from the field by some guardian Deity, wrapt in a cloud. But as far as I can comprehend the premises of this argument, I should again draw a different conclusion, and should reply upon that obvious principle which I have mentioned before, that the less prepared a defendant can be to repel an attack, the more scrupulous and circumspect ought his judges to be, in their attention to the attempts of the assailant. But without resorting to this observation, which probably will be treated with contempt, as a principle of special pleading, I should contend, that, with respect to the law of evidence, it is perfectly, immaterial whether one act or ten thousand acts. are put in issue. The history of a man's life is a continuation of single acts; and each act must be proved by the same description of evidence, as if upon that act alone depended the acquittal or conviction of the defendant. Whether it is the immediate criminal act, or an act which affords an inference or presumption of guilt, the proof must be exactly the same. If we are to prove that the prisoner rode a white horse (or any other similar. circumstance) the same day on which a robbery was committed by a highwayman mounted on a