from the body of the community, the blow descends on him and the other evil disposed members of it with a force which it never could have if based on the mere reasoning of the one, or consultation of the other. "The distinction," says an eminent jurist of the last century, "between the office of judge and jury seems to claim our utmost respect. May this wise distribution of power between the two long continue to flourish, unspoiled, either by the proud encroachment of ill-designing judges, or the wild presumption of licentious juries (x)."

§ 86. 3. We come to the third great feature of the 3. Rules regucommon law mode of proof-the general principles by lating the adwhich the admissibility of evidence is governed. And evidence. here it is to be observed that the rules of evidence are


extra causam.

of three kinds-1st. Those which relate to evidence in 1. Evidence in causâ, i. e. evidence adduced to prove the issues raised; 2nd. Those affecting evidence extra causam, or that 2. Evidence which is only used to test the accuracy of media of proof; and 3rd. Rules of forensic practice respecting 3. Rules of evidence. Now it is to the first of these that the term forensic proof. "Rules of evidence" most properly applies-much evidence which would be rejected if tendered in causâ, being perfectly receivable as evidence extra causam ; and there are few trials on which this sort of evidence does not play an important part. Again, the judge has a certain latitude allowed him with respect to the rules of forensic proof. He may ask any questions, in any form, and at any stage of the cause, and even allow parties or their advocates to do so. This does not mean that he can receive illegal evidence at pleasure; for if such be left to the jury a new trial will be granted, even though the evidence were extracted by questions put from the bench; but it is a power necessary to prevent

(r) Hargrave's Co. Litt. 155 b, note 5.



DENCE in causâ
-The best evi-

dence must be


This rule commonly misunderstood.

justice being defeated by technicality, to secure indicative evidence, and in criminal cases to assist in fixing the amount of punishment. And it should be exercised with due discretion: "Discretio est discernere per legem quid sit justum (y)," but "licentia judicis" is a term unknown to the law (2).

§ 87. Confining our attention therefore to evidence in causâ—it was said by a most eminent judge in a most important case, that "the judges and sages of the law have laid it down that there is but ONE GENERAL RULE OF EVIDENCE, the best that the nature of the case will admit (a)." And Lord Chief Baron Gilbert, to whom principally we are indebted for reducing our law of evidence into a system, says, "The first and most signal rule in relation to evidence is this, that a man must have the utmost evidence the nature of the fact is capable of (b)." "The true meaning of the rule of law, that requires the greatest evidence that the nature of the thing is capable of, is this: That no such evidence shall be brought, which ex naturâ rei supposes still a greater evidence behind in the party's own possession and power (c)." And in another old work of authority (d); "It seems in regard to evidence to be an incontestable rule, that the party who is to prove any fact must do it by the highest evidence the nature of the thing is capable of:" and similar language is to be found in most of our modern books (e). The important rule in question has, however, been very generally misunderstood; partly from the ambiguous nature of the

(y) 2 Inst. 56; 4 Inst. 41.
(z) See 5 Co. 100, a; 19
How. St. Tr. 1089.

(a) Lord Hardwicke, Ch., in
Omychund v. Barker, 1 Atk.

(b) Gilb. Ev. 4, 4th edit.

(c) Gilb. Ev. 16, 4th edit. (d) Bac. Abr. Evid. I. Ed. 1736.

(e) 3 Blackst. Comm. 368; B. N. P. 293; Peake's Ev. 8; 2 Ev. Poth. 147, 148; 1 Greenl. Ev. 82, 4th ed.

language in which it is enunciated, and partly from its being commonly accompanied by an illustration which has been confounded with the rule itself. "If," say the books, "a man offers a copy of a deed or will when he ought to produce the original, this carries a presumption with it that there is something in the deed or will that makes against the party, or else he would have produced it, and therefore the proof of a copy in this case is not evidence." This is undoubtedly true, but it is a great mistake to suppose it the full extent of the rule. Sometimes, again, it has been misunderstood as implying that the law requires in every case the most convincing or credible evidence which could be produced under the circumstances. But all the authorities agree that this is not its meaning (f); as further appears from the maxims, that "there are no degrees of parol evidence," and "there are no degrees of secondary evidence." Suppose an indictment for an assault: or, to make the case stronger, for wounding with intent to murder, (an offence still capital): the injured party, though present in court, is not called as a witness, and it is proposed to prove the charge by the evidence of a person who witnessed the transaction at the distance of a mile, or even through a telescope; this evidence would be admissible, because it is connected with the act-the senses of the witness having been brought to bear upon it; and the not producing, what would probably be more satisfactory, the evidence of the party injured, is mere matter of observation to be addressed to the jury. Again, by "secondary evidence" is meant derivative evidence of the contents of a written document; and it is a principle that such is not receivable unless the absence of the "primary evidence," the document itself, is satisfactorily accounted for (g). But when this has been done, any form of secondary evidence is receiv(g) Infra, Part 3, book 2, ch.

(f) See the authorities in the last note.


True meaning of the rule re


1. Judge and jury must not act on their per

sonal knowledge.

able (h): thus, the parol evidence of a witness is admissible though there is a copy of the document, and the probability that it would be more trustworthy than his memory is only matter of observation (i).

§ 88. The true meaning of this fundamental principle quiring the best will be best understood by considering the three chief applications of it. Evidence, in order to be receivable, should come through proper instruments, and be in general original, and proximate. With respect to the first of these except in a few matters which either the law notices judicially, or are deemed too notorious to require proof (k), the judge and jury must not decide on their own personal knowledge; and should be in a state of legal ignorance of all things respecting the questions in dispute before them, except such as are established by legal evidence, or legitimate inference from it (). "Non refert quid notum sit judici, si notum non sit in formâ judicii (m)." It is obvious that if they were allowed to decide on impressions, or information acquired elsewhere, not only would it be impossible for a superior tribunal, the parties, or the public to know on what grounds the decision proceeded, but it might be founded on common rumour or other forms of evidence, the very worst instead of the best.

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§ 89. The next branch of this rule is that which exacts original and rejects derivative proof-that no evidence shall be received which shews on its face that it only derives its force from some other which is withheld (n).

(h) Doe d. Gilbert v. Ross, 7
M. & W. 102.
(i) Id.


(k) Infra, Part 3, book 1, ch.

(1) Introd. § 38.

(m) 3 Bulst. 115.

(n) Per Parke, B., in delivering the judgment of the Court of Exchequer in Doe d. Welsh v. Langfield, MS. Hil. Vac. 10 Vict., reported 16 M. & W. 497; per

"Meliùs est petere fontes quàm sectari rivulos (o)." The terms primary and secondary evidence are used by our law in the limited sense of the original and derivative evidence of written documents; the latter of which is receivable when, by credible testimony, the existence of the primary source has been established and its absence explained. But derivative proof of original evidence not so verified is in general rejected absolutely; as where supposed oral evidence is delivered through oral, and various other sorts of proof comprised in practice under the very inadequate phrase "hearsay evidence (p)."

visible connec

§ 90. The remaining application of this great prin- 3. There must ciple which we propose to notice at present seems based be an open and on the maxim, "In jure non remota causa, sed proxima tion between the principal spectatur (q)." It may be stated thus, that, as a condiand evidentiary tion precedent to the admissibility of evidence, either facts, direct or circumstantial, the law requires an open and visible connection between the principal and evidentiary facts, whether they be ultimate or subalternate. This does not mean a necessary connection-that would exclude all presumptive evidence-but such as is reasonable, and not latent or conjectural. In this our judicial evidence partakes of the very essence of all sound municipal law, and preserves the lives, liberties and properties of men by placing an effectual rein on the imagination of those entrusted with the administration of justice, and preventing decision on remote inferences and fancied analogies (r).

§ 91. The true character and value of the important principle under consideration is, however, more easily

Parke, B., in Doe d. Gilbert v.
Ross, 7 M. & W.106; per Maule,
J., in M'Donnell 'v. Evans, 16
Jur. 105.

(0) Co. Litt. 305 b.


(p) Infra, Part 3, book 2, ch.

(9) Bac. Max. of the Law, Reg. 1.

(r) Introd. § 38.

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