THE PRACTICE

OF THE

LAW OF EVIDENCE.

CHAPTER I.

GENERAL PRINCIPLES OF EVIDENCE.

SINCE mathematical or demonstrative certainty is unattainable in any of the affairs of daily life, courts of justice, like individuals, are compelled to be satisfied with that inferior kind of evidence which is called moral. Moral probability, or, as it is more erroneously termed, moral certainty, is the highest degree of proof to which the science of legal evidence aspires. In this respect, the analogy between ethics, or moral philosophy, and the English Law of Evidence is complete. As Cicero declares that all purely transcendental philosophy, or that philosophy which seeks for truth beyond the limits of the senses, is only the shadow or faint outline of the invisible reality; so moral philosophy, when materialized, and made a standard and a test of the existence or non-existence of hypothetical and disputable facts, gives, as the result, only a greater or less amount of verisimilitude, or probability. The region of evidence lies, therefore, exclusively between moral certainty on the one hand, as its most perfect extreme, and moral possibility on the other, as its most imperfect extreme. It does not look for more than the first, and it will not act on less than the last. Its whole object is to produce

B

those convictions which spring spontaneously from the suggestions of the intuition, as embodied in the conclusions of the reasoning or deductive faculty. Its fundamental maxims are not by any means founded on the most approved principles of modern metaphysics; for, bounded and fallible as the human senses are in their demonstration, yet the science of evidence recognises in them its best and highest exposition. Thus, as a general rule, the English Law of Evidence may be regarded as primarily always striving after the depositions of eyewitnesses. Yet, their statements, although always valuable, are so far from being, as is sometimes supposed, of a demonstrative character; that they are often intrinsically less satisfactory than many other grades of presumptive evidence, which are nominally inferior. Ignorance, passion, prejudice, and other constitutional infirmities of the witness, which are far beyond the sight or conjecture of either a judge or jury, may, and constantly do, without the consciousness of the deponent, distort his evidence so far as to render it absolutely worthless; although it may be delivered with perfect calmness and consistency, and even remain unshaken by the most searching cross-examination. A still more alarming ground for distrust lies in the possibility that the witness may be committing perjury ; and the experience of the profession, during the last few years, has added tenfold power to this deplorable hypothesis. The recent act of the 17 & 18 Vict. c. 125, s. 20, by which witnesses professing conscientious objections to an oath may be permitted by the judge, or other presiding officer, to give evidence on mere affirmation, is not likely to lessen the suspicion with which direct evidence has always been regarded by the profession; and, although it is far from the intention of the present writer to question the wisdom of the Legislature in this case, it is necessary to refer to it at a point where the value of direct evidence is being discussed.

It is, however, universally the object of courts to obtain the best evidence; and generally, Direct evi- *

dence, such as we have mentioned, is considered the best. But direct evidence is viewed as being either Primary or Secondary ; and it is an inflexible rule, that secondary evidence is inadmissible until the absence of primary evidence has been explained to the satisfaction of the judge. Thus, in a dispute on a contract under seal, the deed is primary evidence, and should be produced to show the terms of the contract. As long as it exists, and can be obtained by reasonable diligence, no other written or oral evidence of its contents will be received; but, if it be destroyed, or if it cannot be found after proper search; or if an adverse party holding it refuse to produce it, after due notice; then either written or oral evidence may be given by any one who is acquainted with the contents of the deed. The rule is similar in the case of written contracts, not under seal. As long as the writing exists it must be produced, if possible; but if it be impossible to produce it, the judge may, in his discretion, allow the contract to be proved by secondary, i. e. by oral evidence.

Where neither of these modes of direct evidence can be supplied; and, in many cases, where they can be supplied, the law permits facts to be proved by that inferior kind of evidence which is usually, but inaccurately, named presumptive or circumstantial. The term is inaccurate, because, according to the premises, all evidence, when analyzed, is found to be presumptive, and to depend for its weight on a number of circumstantial peculiarities which affect the credibility of the witness. But presumptive or circumstantial evidence, as distinguished from direct evidence, is understood to be that species of proof which arises from the existence of a fact, and not from the deposition of a witness, or from writings which are substituted for witnesses. Thus it is a legal presumption that persons who act as public officers have been duly appointed as such. If a man be stabbed in a house, and another man be seen running from the house immediately after, with a bloody sword in his hand; the flight, the weapon, and the blood raise, in legal language, a violent presumption

that the second man murdered the first. Similarly, in larceny, where goods have been stolen by a person unknown, and they have been found shortly after in the possession of the prisoner; juries are always told by judges, that on this evidence alone they are bound to convict, unless they are satisfied with the prisoner's explanation of the manner in which he obtained the goods. Here the evidence consists not of statements but of inferences from facts. But on this class of evidence it has been remarked by a learned writer,2 and the remark is universally applicable to all presumptive evidence, that it must be admitted that, like every other rule of human institution, it will sometimes fail to guide rightly. And Lord Hale mentions a case which he says was tried before a very learned and wary judge, where a man was condemned and executed for horsestealing, upon proof of his having been apprehended with the horse shortly after it was stolen; and afterwards it came out that the real thief, being closely pursued, had overtaken the man upon the road, and asked him to hold the horse for him for a few minutes. The thief escaped and the innocent man was apprehended with the horse.3 Similar cases are too frequent in the annals of presumptive evidence.

Such, in outline, is the double basis on which the positive principles of the Law of Evidence are founded. It is compounded equally of the credibility which arises from oral testimony, and from facts which are considered to be tantamount to oral testimony. But before considering the principle of direct and presumptive evidence in detail, it will be convenient to treat of the different functions of judge and jury in the reception of evidence; of bills of exceptions; of demurrers to evidence; and of the competency of witnesses.

1 Co. Litt. 6, b.

2 2 Russell on Crimes, by Greaves; note by editor. 3 2 Hale P. C. 289.

CHAPTER II.

ON THE FUNCTIONS OF JUDGE AND JURY.

It has been said by a distinguished judge, that—

I. Whether there is any evidence is a question for the judge; but whether the evidence is sufficient, is a question for the jury.'

The meaning of this rule, which may be regarded as fundamental, is, that it is for the judge to decide on the character of all evidence that may be tendered, and to admit or reject it according to its consistency_or inconsistency with the established rules of courts. The rule must be limited by the nature of tribunals, and confined to such as are composed of the common law jurisdiction of judge and jury. Where the judge discharges at once his own peculiar functions and also those of the jury; then it will be his duty to estimate the credibility as well as the admissibility of evidence. Such is his position in Courts of Equity, and other jurisdictions which follow the practice of the Roman or civil law. Such also it is in the new County Courts, in cases where, either a jury is not allowed, or when the parties do not require the intervention of one.2 And now, by the 17 & 18 Vict. c. 125, s. 1, it is enacted that the parties to any cause may, by consent in writing, signed by them or their attorneys, as the case may be, leave the decision of any issue of fact to the court, provided that the court, upon a rule to show cause, or a judge on summons, shall, in their or his discretion, think fit to allow such trial; or, provided the judges of

1 Buller, J., B.N.P. 289, c. (note): Carpenters' Company v. Hayward, 1 Doug. 375.

29 & 10 Vict. c. 95, ss. 69, 70.