Derivative or second-hand evidence.

were neither party nor privy, and consequently had no Antiquity of this power to prevent or control. We find this appealed to as a recognized maxim of law so early as the reign of Edward II. (1) Under this head comes another great principle, the strict enforcement of which (as has been already stated (m)) forms a distinguishing feature of the English law of evidence; namely, the rejection of all transmitted or derivative evidence of all proof offered second-hand, or obstetricante manu. We have seen the observations of Lord C. J. Abbott as to that branch of this rule which relates to written instruments (n); and with

Our ancient lawyers aware of its infirmity.

() M. 3 Edw. II. 53, tit. Entre; A writ of entry ad terminum qui præteriit was brought, in which the demandant alleged that the tenant had right of entry only through A., his father, who leased to him the term; to which the tenant pleaded that the plaintiff was bastard, and could not claim as heir to A.; to which the demandant replied that he had formerly sued a writ against one C., who pleaded the bastardy of the demandant, who thereupon sued out a writ to the Bishop of L-, who certified to the court that he was mulier, &c. To this the tenant rejoined that he was no party to that proceeding, and res inter alios acta aliis &c. To this it was answered that that maxim did not apply to such a case. The judges took time to consider until the next term, and then gave judgment that as that court had been certified of the demandant's state of mulier by a certification, which was completed by a judgment given under that certification; and as he who is

once mulier is mulier for ever, no matter between whom it be; they gave judgment that he was entitled to seisin, &c. Nota ex hoc, adds the reporter. See on this subject, Co. Litt. 352 b; 2 Smith's Lead. Cas. 440. The above case was decided exactly 350 years before the first case in Siderfin, while the reports of Keble begin a year later, the two reporters whose authority on the subject of evidence Lord Mansfield, 1 W. Bl. 366, wished to consign to oblivion, on account of their antiquity. See also 2 Inst. 513. The rule "res inter alios," &c. was well known at Rome. See Cod. lib. 7, tit. 60, II. 1 and 2, in the latter of which it is spoken of as being "notissimi juris." Infra, Part 3, bk. 2, ch. 4.

(m) Introd. § 29, and supra, ch. 1, § 89. See infra, Part 3, bk. 2, ch. 1 & 2.

(n) Supra, § 108. See Fleta, lib. 6, ch. 34, § 1, and 6 Mod. 248. This principle was also known to the Romans. Dig. lib. 22, tit. 4, 1. 2; lib. 26, tit. 7, 1.

respect to hearsay or second-hand evidence in general, our ancient lawyers seem to have had a thorough perception of its infirmity (o). Thus, Sir Edward Coke, in the

57, Cod. lib. 4, tit. 21, ll. 5, 7, and 11; Domat, Lois Civiles, part. 1, Liv. 3, tit. 6, sect. 2, §§ x and xi. See, however, infra, Part 3, bk. 2, ch. 2.

(0) It could hardly have been otherwise, as the infirmity of this kind of proof seems to have been observed in almost every age and country. According to the Athenian law hearsay evidence, or ἀκοήν μαρτυρεῖν, was allowed in those cases only where the supposed speaker was dead: Law Mag. (N.S.) No. 1, p. 36. Hearsay appears to have been received in ancient Rome, Quint. lib. 5, cap. 7, at least as proof of old transactions, Dig. lib. 22, tit. 3, 1. 28, and lib. 39, tit. 3, 1. 2, §8, although rumour and common report were estimated at their worth. "Vanæ voces populi non sunt audiendæ nec enim vocibus eorum credi oportet, quando aut noxium crimine absolvi, aut innocentem condemnari desiderat:" Cod. lib. 9, tit. 47, 1. 12. And on the value of hearsay when admitted, Quint. in loc. cit. says, "Gentium simul universarum elevata testimonia ab oratoribus scimus, et tota genera testimoniorum, ut de auditionibus; non enim ipsos esse testes, sed injuratorum afferre voces." Instead of injuratorum some copies of Quintilian have injuriatorum, which wholly alters


the sense of the passage, but the other reading is adopted by an immense majority of the commentators. The civilians and canonists admitted hearsay in proof of ancient rights and some other cases, but in general looked on it with suspicion, at least: Huberus, Præl. Jur. Civ. lib. 22, tit. 5, n. 20; Mascardus de Prob. Concl. 151, 104; Struvius, Syntag. Jur. Civ. ed. Mülleri, Exerc. 28, tit. 45, note (n), ix: and it is rejected in general by the Scotch law: Burnett's Crim. Law Scotl. 600. Under the old French law, Pothier expressly lays down that, "Above all it is requisite that the witness who says he has a knowledge of any fact, should shew how he has such knowledge. For instance, if I would prove that you had sold me such a thing, it would not be sufficient for the witness to say in vague terms, that he knew you had sold me that thing; he should state how he had that knowledge; for instance, that he was present at the agreement; or that he had heard you say you had made such a sale; if he said that he knew it from a third person, his deposition would not be any proof." Poth. Obl. § 786. Loysel, a very ancient French authority, significantly observes, "Un seul œil a plus de crédit que deux oreilles n'ont d'audivi." Again, "Ouïr

early part of the 17th century, lays down as rules of law, "Testis de visu præponderat aliis," and "Plus valet unus

dire va par ville, et en un muid de cuider n'y a point plein poing de savoir." In commenting on this, Bonnier, in his Traité des Preuves, § 205, observes, that a multitude of remarks of a similar nature have been made (understand by French lawyers), but they are, after all, nothing more than cautions (indications), not positive precepts. And in another place he thus states the modern practice in France. "It is evident that proof weakens in proportion to its distance from its

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ought never to have recourse to proofs of the second degree when those of the first degree may be employed. ⚫ It is only when the original witnesses are dead, or incapable of deposing, that witnesses of the second degree are allowed to be called to reproduce the declarations of the first. Still, the very fact that it is no longer possible to hear the first, should induce the judge to examine carefully if there be any symptoms of fraud; for it is obvious that a party who desires to misrepresent without exposing himself to detection, will not fail to put a false account in the mouth of some one from whom contradiction cannot be feared. A witness must be therefore doubly credible in order to have reliance placed on his deposition when it only amounts to a hearsay; à fortiori proof is extremely

weak when we are obliged to follow out a line (parcourir une filière) more or less complicated, before we can arrive at direct testimony. And yet in the celebrated prosecution of the Calas the strongest piece of circumstantial evidence came under the cog. nizance of the judge only through the medium of four witnesses, who had, as it was said, successively transmitted it from one to the other; and the first of those witnesses, the one who was supposed to have heard the threat of the father to the son, was not even named, being an unknown girl whom it was impossible to trace. Whilst branding with just indignation proceedings where capital convictions were pronounced on such evidence, it must be acknowleged that public opinion alone can prevent a repetition of them. In this matter, as in everything else which concerns the appreciation of testimony, it is impossible to lay down fixed rules beforehand; for how can we determine à priori the precise point where truth begins and error ends?"-Id. §§ 728, 729. These observations, while they shew the defects of the French judicial system, place in a strong light the excellence of our own. Such a case as that stated by Bonnier could hardly occur in England at the present day; for our rules which regulate the admissibility of evidence being rules

oculatus testis quam auriti decem (p)." So the judges having held, in the case of one William Thomas, that the statutes 1 Edw. VI. c. 12, s. 22, and 5 & 6 Edw. VI. c. 11, s. 12, which require that no person be proceeded against for treason except on the oath of two lawful accusers, were satisfied by the evidence of one person who spoke of his own knowledge, and that of another who had the information from a third, and he from a fourth to whom the first had related it (q); the same authority pronounces it "a strange conceit that one may be an accuser by hearsay;" and says that the doctrine had been utterly denied by the judges in Lord Lumley's case (r), H. 14 Eliz. 1572, a report of which he had seen in the handwriting of C. J. Dyer (s); and

of law, no judge ought to receive such proof; and were he even to violate his oath by so doing, still it would be for the jury, and not for him, to decide on its value, and pronounce the verdict of acquittal or condemnation. Nor did the principle in question escape the notice even of the rude legislators of the middle ages. Notwithstanding the widely-spread superstition which stamps with unquestionable veracity the statements of criminals at the place of execution, we find the following enactment in the Venedotian Code, or ancient code of North Wales, Book 2, c. 4, § 11: “A thief at the gallows, respecting his fellow-thieves: If he should assert that another person was an accessory with him in the robbery for which he is about to suffer; and he should persist in his assertion unto the state God went to and he is going to; his word is there decisive, and can

not be gainsaid: nevertheless his fellow-thief shall not be executed, but is a saleable thief; for no person is to be executed on the word of another, if nothing be found on his person." The Dimetian Code, or ancient code of West Wales, contains a similar provision: Book 2, c. 5, § 9. See for these Codes the "Ancient Laws and Institutes of Wales, &c.," printed under the direction of the Commissioners on the Public Records, 1841. It would seeni that the Hindoo Code forms an exception; and that in that country the secondary witness, i. e. the person who has been made acquainted with facts by hearsay, is as receivable as any other. Translation of Pootee, c. 3, sect. 7, in Halhed's Code of Gentoo Laws. (p) 4 Inst. 279.

(q) Thomas's case, Dyer, 99 b, pl. 68, P. 1 Mar.

(r) 3 Inst. 25.
(s) Id. 24.

Other instances

Thomas's case is also mentioned by Sir Matth. Hale as overruled (t). As our legal history advances the authorities become more distinct on this subject, and the inconclusiveness of hearsay or second-hand evidence seems to have been universally recognized during the latter half, at least, of the seventeenth century (u). Instances are to be found in the state prosecutions of that period (x); and we sometimes find the objection taken even by persons not in the legal profession. Thus Archbishop Laud, in his defence, observes of some evidence offered against him, that it is "hearsay (y);" and Lord William Russell, complaining on his trial that he thought he had very hard measure, that there was brought against him a great deal of evidence by hearsay (z), the court at once admitted the objection, but evaded its force in a way that will be seen presently (a); and in Mich. T. 19 Jac. I. the principle that the opinions of witnesses are not legitimate ground for legal decision, was recognized in the Star Chamber by eminent judges (b).

§ 112. Many other instances might be adduced to of the recogni- shew the recognition by our ancestors of principles of evidence which we are in the habit of looking on as altogether modern. Even rules of our forensic practice respecting proof were known to them: as, that at trials the party on whom the burden of proof lies ought to

tion of the principles of evidence by our old lawyers. Rules of forensic practice.

(t) 1 H. P. C. 306; 2 Id. 287. These authorities probably did not mean that the evidence of the second witness was to be rejected as coming second-hand; but that, being traceable up to the other witness, it was a mere repetition of his testimony, and consequently I could not be considered as the evidence of a second accuser within the meaning of the statute. See Hale, in loc. cit., and

2 Hawk. P. C. c. 25, s. 141.

(u) Samson v. Yardly, 2 Keb. 223, P. 19 Car. II.; Lutterell v. Turberville, 1 Mod. 282, and the authorities in the next three notes. (x) 9 Ho. St. Tr. 608, 848, 1094; 12 lb. 1454.

(y) 4 Ho. St. Tr. 431.
(z) 9 Ho. St. Tr. 608.
(a) Infra.

(b) dams v. Canon, Dy. 53 b, pl. 11 (in marg.).

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