idea of appealing." 3 Jurist, 140. Add to all this, that when the decision of the superior tribunal is obtained it carries little or no moral weight with it; for it is only the opinion of judge A. against that of judge B., on the credit due to witnesses, or the inference to be drawn from certain facts; in which, after all, judge B., whose decision is reversed, may be right. This is very different from the case where the verdict of a jury is set aside as against evidence by a court of common law; there the question is not whether the court consider the verdict an erroneous one, but whether, speaking judicially, they can pronounce it so manifestly wrong that it ought not to stand. See Wood v. Gunston, Sty. 466. Of all this even Bentham himself was so conscious, that he admits that without publicity, recordation, appeal, and all other institutions in the character of checks, would be found to operate as cloaks

rather than checks; 1 Jud. Ev. 524. But publicity, standing by itself, would be equally insufficient. The trials of Socrates, Virginia, Milo, Throckmorton, Sidney, Ri chard Baxter, &c., were as public as could be; and we find the three checks combined in the practice of the civil tribunals of modern France, the superiority of which over all others has not, at least as yet, been demonstrated. We trust that we have shewn in this chapter and the Introduction to this work, that without the assistance of a casual tribunal, through which alone the cleansing tide of fresh thought is poured into judicial proceedings, those proceedings never could be kept pure and healthy; and that no effectual checks ever have been, or ever can be, devised against the obvious and great dangers of entrusting the decision of facts to a fixed and permanent one, however elaborately constituted.

Object of this chapter.


dicta as to the antiquity of the judicial evidence of this country.



§ 107. It is proposed in the present chapter to trace the rise and progress of the law of evidence in this country; concluding with some observations on its actual state and future prospects.

§ 108. On the first of these subjects little is to be found in our modern works, beyond a few dicta, not very consistent with each other. In the case of R. v. The Inhabitants of Eriswell (a), decided in Trinity Term, 1790, Lord Kenyon, C. J., is reported to have said "the rules of evidence have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded." And in Bauerman v. Radenius (b), about eight years latter, he informs us that at the beginning of the last century, Lord Macclesfield said that the most effectual way of removing landmarks would be by innovating on the rules of evidence. This, however, is not the general opinion of the present day, in which our system of judicial evidence is commonly spoken of as something altogether modern and in the case of Lowe v. Jolliffe (c), decided not quite thirty years previous to that first quoted, Lord Mansfield, C. J., is reported to have declared on a trial at bar, that the court "did not then sit there to take its rules of evidence from Siderfin and Keble;" whose reports begin about a century before the time when his lordship was speaking.

(a) 3 T. R. 721.
(b) 7 T. R. 663.

(c) 1 W. Blackst. 366.

In the proceedings against Queen Caroline, in the year 1820 (d), Abbott, C. J., in delivering the answer of the judges to a question put by the House of Lords, said, “ in their judgment it is a rule of evidence as old as any part of the common law of England, that the contents of a written instrument, if it be in existence, are to be proved by the instrument itself, and not by parol evidence." On the other hand, in the work on evidence by Messrs. Phillipps and Amos (e), published in 1838, it is said that the law of evidence, according to which the determinations of the courts are at present governed, has been almost entirely created since the time of the reporters Salkeld, Lord Raymond, and Strange; i. e. since a period beginning shortly after the revolution of 1688, and ending at a tolerably advanced point in the reign of George II. Also, in the two last editions of Phillipps on Evidence, published respectively in 1843 and 1852, it is stated that the important rule rejecting hearsay or secondhand evidence is not of great antiquity (f), and that one of the earliest cases in which it was acted upon is Samson v. Yardly, P. 19 Car. II. 2 Keb. 223, pl. 74 (g).

between the

ancient and

§ 109. The truth seems to be, that while "The Law of Difference Evidence" is the creation of comparatively modern times, most of the leading principles on which it is founded have modern systems. been known and admitted from the earliest; and in order

to shew the nature of the ancient, as well as the advantages of the modern system, it will be necessary to examine those principles separately.

rules of evi

§ 110. All rules respecting judicial evidence may be Division of divided into primary and secondary; the former relating dence into to the quid probandum, or thing to be proved, the primary and latter to the modus probandi, or mode of proving it.

(d) 2 B. & B. 289; see infra,

Part 3, book 2, ch. 2.

(e) Ph. & Am. Ev. 335.


Of Primary rules.

(ƒ) 1 Phill. Ev. 9th Ed. 208,

& 10th Ed. 165.

(g) Id.

the former there are but three: 1st. That the evidence adduced must be directed solely to the matters in dispute; 2nd. That the burden of proof lies on the party who would be defeated supposing no evidence given on either side; and 3rd. That it is sufficient for a party on whom the burden of proof lies to prove the substance of the Universality of issue raised. These rules are so obviously reasonable


Secondary rules.

Some almost universal.

and necessary for the administration of justice, that it would be difficult to find a system in which they have not at least a theoretical existence, however their effect may occasionally have been extended or narrowed by artificial and technical reasoning, and they have accordingly always been recognized in our own (h). The secondary rules are necessarily more numerous, but there are some almost as obvious and universal as the primary. Probably no code of laws ever existed which was destitute of its estoppels, presumptions, and oaths or other sanctions of truth, or neglected to establish the great principle, so essential to the peace of society, that matters and claims which have been once regularly and judicially decided must be considered as settled and not again

(h) That the proof should be confined to the issues raised, and consequently that the admissibility of evidence depends on the state of the pleadings, see Finch, Comm. Laws, 61; the cases from the Year Books collected in 2 Rol. Abr. 676, pl. 8, 10, 11, 13, 14, 24, 28, &c.; and those put by Bradshawe, A. G. arguendo, in Reniger v. Fogassa, Plowd. 7. Again, that the burden of proof lies in general on the party who asserts the affirmative, has been a recognized maxim of law from the earliest periods, see Bract. lib. 4, c. 7, fol. 301 B.; F. N. B. 106,


Co. Litt. 6 b; 2 Inst. 662; 4 Inst. 279; 3 Leon. 162, pl. 211; Gouldsb. 23, pl. 2; Anon. Littl. R. 36 and the maxim "actori incumbit onus probandi," seems also to have been well known in former times; 4 Co. 71 b; Hob. 103. A case of the burden of proof shifting is given by Glanville, lib. 10, c. 12. Also, that it is sufficient to prove the substance of the issue, see Litt. sect. 483, 484, 485; 6 Edw. II. 41 b, pl. 22; 8 Edw. III. 70, pl. 37; Hob. 73, 81; Trials per Pais, 140, Ed. 1665; Co. Litt. 227 a, 281 b, 282 a, &c.

brought into dispute. Of all these likewise we find ample mention in our early books (i); especially the first, the doctrine of which, as observed by a late able writer, was in those days tortured into a variety of absurd refinements (k).

rules less obvious;

§ 111. Of our other secondary rules of evidence, many Other secondary rest on principles which, though quite as consonant to reason, and as much required for a perfect administration of justice as the former, are not so obvious at first sight; and the rules derived from which, owing to the hardship of enforcement in particular cases, and the great discretion sometimes required in their application, are apt to be disregarded in times of excitement. Among Res inter alios these may be reckoned the just principle, "res inter alios acta. acta alteri nocere non debet,"-that persons are not to

be affected by the acts or words of others, to which they

(i) See Glanv. lib. 12, c. 24, who wrote in the reign of Hen. II.; Ordo de Compton's case, Memor. in Scac. 29 Edw. I; 6 Edw. III. 45, pl. 31; and the title "Estoppel" in the indexes to our old books, beginning with the Year Book of Edw. II. As instances of presumptions, or intendments, of law noticed by ancient authorities, see Fleta, lib. 6, c. 34, §§ 4 & 5; Bract. lib. 1, c. 9,4; Litt. sect. 103; Co. Litt. 67 b, 42 a and b, 78 b, 99 a, 232 b, 373 a and b; 5 Co. 98 b; 6 Co. 76 a; 10 Co. 56 a; 12 Co. 4 and 5; Cro. Eliz. 292, pl. 3; Cro. Jac. 252, pl. 6, and 451, pl. 29; Cro. Car. 317, pl. 14, and 550, pl. 2. It is well known that during the middle ages oaths were in constant use, or rather abuse,

throughout Christendom; includ-
ing this country, which always
insisted on an oath as a test of
truth, and had its judicial purga-
tion under the name of wager of
law. And with respect to the
authority of res judicata-by the
old statute, 4 Hen. IV. c. 23, it
is ordained and established, that
"after judgment given in the
courts of our lord the king, the
parties and their heirs shall be
thereof in peace, until the judg
ment be annulled (anientiz) by
attaint or by error, if there be
error, as hath been used by the
law in the time of the progenitors
of our said lord the king." See
also the stat. West. 2 (13 Edw. I.
stat. 1), c. 5.

(k) 2 Smith's Lead. Cases, 436

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